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The Takeaway

The Missouri Court of Appeals for the Eastern District appears to have expanded the definition of when the dangerous condition of a public roadway can be claimed as an exception to a public governmental entity’s ability to claim sovereign immunity from tort claims. It based its conclusion on the absence of a crosswalk as presenting a dangerous condition.

Introduction

Under Missouri statute, public governmental entities enjoy sovereign immunity from tort claims with two exceptions: (1) claims based on negligent operation of motor vehicles owned by the public entity, and (2) claims arising from dangerous conditions of public property owned by the entity. § 537.600 RSMo. That second statutory exception often arises when a plaintiff is involved in an accident on a public road and then sues the public entity that owns the road for defective design or maintenance of the road or the traffic control features on it. An added wrinkle arises when the plaintiff is a pedestrian. At what point does the danger inherent in crossing a street become a dangerous condition of public property for which a public entity can be held liable?

Historical Definitions of What Constitutes a Dangerous Condition Exception

Missouri courts have often stated that to fit into the dangerous condition exception to sovereign immunity, a plaintiff must allege a “physical defect” in the property itself. However, this includes more than mere defects in the pavement. When the public property in question is a road, the exception also includes negligent maintenance or repair of stop signs or other traffic controls. (For example, in Hensley v. Jackson Cnty., 227 S.W.3d 491 (Mo. 2007), the Supreme Court held that a passenger's suit against the county for failure to maintain or repair a stop sign fell within the statutory waiver.) The dangerous condition exception also includes claims for negligent or defective design of roadways, which was made clear by the 1985 amendment carving out a “state of the art” defense to claims of negligent or defective design of roadways.

But can the mere lack of a crosswalk at a place where pedestrians commonly cross a street be considered a “dangerous condition of property” so that the public entity can be held liable?

For years, the answer under Missouri law would seem to have been “no.” Two cases decided in the early 1990s (Johnson and Hedayati) both involved children struck by traffic. The Court of Appeals found that the plaintiffs failed to allege the dangerous condition exception merely because a busy street lacked traffic controls such as stop signs and had heavy traffic. The court emphasized that to be a dangerous condition, the condition must be one whose “existence, without intervention by third parties, posed a physical threat to plaintiff.” The courts in both cases reasoned that the only dangers the plaintiffs alleged—the volume of traffic combined with the lack of traffic controls—were not conditions that posed a danger to a pedestrian without the intervention of third parties. Hedayati, 860 S.W.2d 795 (Mo. App. 1993) Johnson, 817 S.W.2d 611 (Mo. App. 1991).

In 2007, the Court of Appeals found that the dangerous condition exception did apply to the claim of a plaintiff who was struck at a marked crosswalk. Distinguishing the circumstances of that case from Johnson and Hedayati, the Court reasoned that the presence of a marked crosswalk without adequate signals or warnings to oncoming cars actually created a dangerous situation for pedestrians since it lulled them into a false sense of security while crossing. As the court noted, this was a different situation from the previous pedestrian cases: “In [Hedayati and Johnson], there were no crosswalks or other traffic controls in place at all, and at least in those cases the pedestrian was or should have been on guard.” Huifang v. City of Kansas City, 229 S.W.3d 68, 84 (Mo. Ct. App. 2007), as modified (May 1, 2007).

Expanding the Definition of What Constitutes a Dangerous Condition Exception

The scope of this exception as applied to pedestrians appears to have expanded when it was recently raised in Bruckerhoff v. City of Perryville, 681 S.W.3d 303, 307 (Mo. Ct. App. 2023). In this case, the plaintiff’s foot was hit by a passing car when she was crossing Old St. Mary’s Road in Perryville, Missouri, a 25-mile-per-hour road that passed between two food manufacturing plants owned by plaintiff’s employer. There was no crosswalk where the plaintiff was crossing the road. The City moved for summary judgment based on sovereign immunity, arguing that there was no evidence that the road had a physical defect that rendered it dangerous without the intervention of third parties. The circuit court granted summary judgment.

However, the Eastern District reversed that decision, holding that a fact dispute existed as to whether the road was in a dangerous condition. Relying on Huifang, the court emphasized that “[t]raffic control devices including markings, signs, and traffic signals are part of the ‘design’ of a roadway.” Bruckerhoff, 681 S.W.3d at 307. The court reasoned that the plaintiff had created a fact dispute about whether there was a defective design by presenting expert testimony that the road would have been safer with a crosswalk due to the amount of pedestrian traffic and sight distances. This was in stark contrast to Huifang, where the presence of a dangerous condition was supported by an extensive record, including admissions of the engineer that the crossing was dangerous and where the alleged defect was an improperly signaled crosswalk, not the mere absence of a crosswalk. Also, in Bruckerhoff the Eastern District held that it was not necessary for the plaintiff to show previous notice to the City of any accidents at that location, only that the City had time and opportunity to become aware of the condition of the area.

Conclusion

It remains to be seen whether other districts of the court of appeals will follow such an expansive reading of the dangerous condition exception to sovereign immunity, or whether the Bruckerhoff decision was limited to the particular facts of that case. One thing is clear, however: courts’ willingness to deal out summary judgment to public entities based on sovereign immunity continues to erode. If the standard used in Bruckerhoff remains, it appears that a plaintiff can now satisfy the dangerous condition exception—at least to survive summary judgment—merely by offering expert testimony that a road could have been safer with additional traffic control that the plaintiff claims was lacking.