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Moore v. Missouri Highway & Transportation Commission8/24/2005
er to relief. Roy v. Mo. Dep' t of Corr., 23 S.W.3d 738, 742 (Mo.App. 2000). "All facts alleged in the petition are accepted as true and construed in the light most favorable to plaintiff." Keeney v. Mo. Highway & Transp. Comm'n, 70 S.W.3d 597, 599 (Mo.App. 2002).
"It is not the function of the trial court on a motion to dismiss or of this court on appeal from a judgment of dismissal . . . to determine on the merits whether" Appellant is entitled to relief. Sandy v. Schriro, 39 S.W.3d 853, 856 (Mo.App. 2001), quoting City of Creve Coeur v. Creve Coeur Fire Protection Dist., 355 S.W.2d 857, 859-60 (Mo. 1962).
To state a claim under the dangerous-condition exception, a plaintiff must allege facts that show 1) a dangerous condition of public property, 2) that the injury directly resulted from the dangerous condition, 3) that the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred, and 4) that . . . the public entity had actual or constructive notice of the condition.
State ex rel. Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo.banc 1998).
In his petition, Appellant alleged that:
The combined effect of [certain] conditions was to cause drivers to see headlights that appeared to be directly in front of them because the road in front of them contained a reverse curve and such that the approaching vehicle was actually in its own lane, but laterally displaced due to the non-perceived reversecurve in the road.
Appellant contends that the effect caused "a false sense that the highway was perfectly straight and that there would be no curves ahead."
Appellant enumerated five features which caused a "dangerous condition" on the curve. Appellant alleges the collision was a "direct result and consequence" of the dangerous conditions of the property and the negligence of employees of Respondent. Appellant contends that Respondent was aware of and had notice of the dangerous condition on the curve due to "a history of vehicles crossing the centerline at that location[,]" an absence of warning signs, as well as Respondent's failure to comply with adopted guidelines.
Respondent relies on Herzog v. City of St. Louis, 792 S.W.2d 39 (Mo.App. 1990), and its ruling that the City had a "duty" is a condition precedent to liability and is the "seminal issue" in roadway condition cases. There, the court found the petition did not allege a duty to warn of an alleged defect in the road itself. Id. at 40. Here, the petition, construed favorably to Appellant, does so. Point three has merit.
We conclude that the petition set forth a claim for which relief can be granted. The judgment is reversed and remanded.
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