Moore v. Missouri Highway & Transportation Commission8/24/2005
Opinion Vote: REVERSED AND REMANDED.
Parrish, J., and Rahmeyer, J., concur.
Opinion:
Dennis R. Moore, Sr. ("Appellant") appeals the judgment of the trial court dismissing Appellant's petition. Appellant sought damages in a wrongful death and personal injury suit against the Missouri Highway and Transportation Commission ("Respondent").
The facts stated here are taken from Appellant's petition. On September 29, 2000, at 10:30 p.m., Saundra Norris and her children, Adrian Moore, Sheryl Moore, and Dennis Moore, Jr., were passengers in a 1989 Ford Tempo driven by Saundra's husband, Michael Norris. The Tempo was driving southbound on Highway B in Pemiscot County. At the same time, a 1993 Mercury Cougar driven by Misty Buck was traveling northbound on Highway B. Adjacent to the address of 4544 Highway B, Pascola, Missouri, and 1.5 miles north of the intersections of Highway 84 and Highway 412, there is a reverse curve. Upon entering the curve, Buck's car skidded across the center line and into the path of Norris' car. The two vehicles collided.
Adrian Moore, Saundra Norris, and Michael Norris were killed. Dennis Moore, Jr. suffered injuries, including "closed head injury, intraventricular hemorrhage, left humerus fracture, bilateral pulmonary contusions, and numerous blunt traumas, contusions, abrasions and internal injuries." Sheryl Moore's injuries included "fracture to the left humerus, fracture to the left first metacarpal, free fluid in the abdomen, lacerations, abrasions, and contusions."
Appellant, the natural father of Dennis Moore, Jr. and Sheryl Moore, brought suit and was appointed next friend for these minor plaintiffs on July 6, 2004, pursuant to Rule 52.02(c). Appellant alleged that " he extremely flat terrain surrounding Highway B at this location, the straight line of trees running along the highway, and the perfectly straight nature of the highway, as approaching from both directions, gave drivers, to include Misty Buck, a false sense that the highway was perfectly straight[.]" Appellant alleged he suffered a "pecuniary loss" by reason of the death of his daughter, Adrian Moore, and prayed for judgment against Respondent for his loss and on behalf of Dennis Moore, Jr. and Sheryl Moore for the death of their mother, Saundra Norris, as well as for the personal injuries suffered by the children.
Appellant contends that Respondent, as owner of the land upon which Highway B is situated, was aware of the dangerous conditions on this curve, and there were "no warning signs or other devices in place to warn approaching vehicle operators of the upcoming reverse curve." Appellant believes this absence of warning is contrary to the Federal Highway Administration's Manual on Uniform Traffic Control Devices ("MUTCD"), adopted by Respondent, and the failure to follow these guidelines led to the collision.
On August 19, 2004, Respondent filed a motion to dismiss Appellant's petition for "failure to state a claim upon which relief can be granted, in that it fails to allege the elements necessary to establish a waiver [Respondent's] sovereign immunity[.]" Respondent suggests that Highway B did not pose a threat "but for the intervention of the driver who crossed the centerline[.]" Respondent petitioned for and was granted a change of venue, and a hearing on Respondent's motion to dismiss was held on September 28, 2004. On September 29, 2004, the court granted Respondent's motion to dismiss by docket entry. Appellant filed a Motion for Relief and Reconsideration of Order of Dismissal on October 21, 2004.
On November 9, 2004, the trial court held a hearing on Appellant's motion for relief and reconsi
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