The opinion
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
DIANA CROUCH, et al., )
)
Appellants, )
) WD76824
v. )
) OPINION FILED:
) August 5, 2014
CITY OF KANSAS CITY, MISSOURI, )
)
Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Patrick W. Campbell, Judge
Before Division One: Joseph M. Ellis, Presiding Judge, and
Karen King Mitchell and Anthony Rex Gabbert, Judges
Appellants, Diana and Dennis Crouch, appeal from the circuit court‟s grant of summary
judgment in favor of Respondent, the City of Kansas City (City), on their claim for wrongful
death of their mother, Dorothea Crouch. Appellants allege that Dorothea died as the result of a
head injury suffered from a fall that occurred when employees of the Kansas City Fire
Department were attempting to carry her up the stairs in her home. The circuit court found that
the City was entitled to sovereign immunity, and it granted summary judgment in the City‟s
favor. We affirm.
Factual and Procedural Background1
On April 16, 2012, Diana Crouch called the Kansas City Fire Department (KCFD),
seeking help for her mother, Dorothea Crouch, in getting up the stairs to Dorothea‟s living
quarters in the home they shared.2 The situation was a non-emergency situation, and apart from
an inability to climb the stairs that particular day, Dorothea was otherwise fine.3
The KCFD responds to approximately 25,000 non-emergency calls per year. In 2012, the
KCFD responded to 2,671 “lift assist” calls like the one made by Diana. The “lift assist” service
was authorized by the fire chief and made available to anyone in the community.
In response to Diana‟s call, the KCFD sent four firemen (a standard number for call
response) to the Crouch residence. When they arrived, Diana greeted them at the door and led
them to the stairwell where Dorothea was seated in a wheelchair at the bottom of the stairs. The
firemen discussed how best to move Dorothea and ultimately decided to put her in a wooden
dining room chair and have two firemen carry her up the stairs, with one holding the back of the
chair and the other holding the front two legs of the chair.
On the way up the stairs, the chair broke and Dorothea fell, hitting her head on the broken
chair and the floor. Diana contacted Dorothea‟s doctor, who advised Diana to ice the injury,
monitor Dorothea for signs of a concussion, and wake Dorothea every hour during the night to
check her for signs of concussion. Dorothea appeared fine that evening and overnight, but
complained of a severe headache when she awoke the next morning. Diana called 911, and an
1
“When considering an appeal from the grant of summary judgment, we review the record in the light most
favorable to the party against whom the judgment was entered.” Babb v. Mo. Pub. Serv. Comm’n, 414 S.W.3d 64,
67 n.3 (Mo. App. W.D. 2013).
2
Because of the shared last name, we will refer to the various members of the Crouch family by first name.
No familiarity or disrespect is intended.
3
The Crouches had contacted the KCFD on one previous occasion for the same reason. It appears from the
record that Dorothea was normally able to climb the stairs on her own or with some assistance from Diana.
Although Diana told the dispatcher that she had taken her mother to the heart doctor earlier that day, she also
indicated that the call was not an emergency.
2
ambulance took Dorothea to the hospital, where she was diagnosed with intracranial
hemorrhaging, which led to her death two days later.
Diana and Dennis, Dorothea‟s two children, sued the City for wrongful death, alleging
that the KCFD firemen acted negligently in the manner in which they chose to move Dorothea
up the stairs. In their petition, the Crouch children alleged that the firemen were acting as agents,
servants, or employees of the City and that they were not performing a governmental function,
but a proprietary one, in that their act of assisting Dorothea to the second floor was for the
convenience of but one of the City‟s citizens and not for the common good of all.
After a period of discovery, the City moved for summary judgment, asserting that it was
entitled to sovereign immunity insofar as the firemen were engaged in a governmental function
during the actions leading to Dorothea‟s death. Alternatively, the City argued that it was
protected by the public duty doctrine to the extent that its employees (the firemen) were
protected. The City supported its argument by referring to the duties and powers of the KCFD
and its fire chief as laid out in the City‟s charter and ordinances and arguing that the activities of
the fire department generally, and lift assists specifically, are for the benefit of the general public.
In response, the Crouches argued that the City, as a municipal corporation, performed
dual functions and that, even though the establishment and operation of a fire department are
typically governmental functions, the non-emergency, lift-assist response was not. The Crouches
argued that the KCFD‟s response to non-emergency lift-assist calls was merely for the benefit
and convenience of the City‟s own citizens and, therefore, was a proprietary function not entitled
to sovereign immunity. The Crouches further argued that the public duty doctrine was
inapplicable because they had not sued the individual firemen, and the public duty doctrine could
not protect the City in its performance of proprietary functions.
3
The circuit court granted the City‟s motion for summary judgment, finding that “[t]he
„lift assist‟ calls performed by Defendant serve to safeguard and preserve the health of those
citizens that are unable to mobilize themselves,” and that the service was “performed for the
common good of all.” The court further determined that the City did not receive any benefit
from providing “lift assist” services and, therefore, the service constituted a governmental
function, entitling the City to sovereign immunity. The Crouches appeal.
Standard of Review
Because “[t]he propriety of summary judgment is purely an issue of law,” we review the
grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “When considering appeals from summary
judgments, the Court will review the record in the light most favorable to the party against whom
judgment was entered.” Id. “Facts set forth by affidavit or otherwise in support of a party‟s
motion are taken as true unless contradicted by the non-moving party‟s response to the summary
judgment motion.” Id. “We accord the non-movant the benefit of all reasonable inferences from
the record.” Id.
“The criteria on appeal for testing the propriety of summary judgment are no different
from those which should be employed by the trial court to determine the propriety of sustaining
the motion initially.” Id. “As the trial court‟s judgment is founded on the record submitted and
the law, an appellate court need not defer to the trial court‟s order granting summary judgment.”
Id.
Analysis
The Crouches raise two points on appeal: first, they claim that the circuit court erred in
finding that the non-emergency lift-assist function was governmental and, thus, that sovereign
4
immunity applied; and second, they claim that the public duty doctrine does not apply because
the Crouches did not sue the firemen individually as employees of the City. Because the circuit
court‟s entry of summary judgment based on sovereign immunity was correct, we affirm.
The court below granted summary judgment in favor of the City on the ground that the
City was protected from liability by sovereign immunity. “„Under the doctrine of sovereign
immunity, public entities are immune from suit for their negligent acts unless the General
Assembly has expressly waived such immunity.‟” Phelps v. City of Kansas City, 371 S.W.3d
909, 912 (Mo. App. W.D. 2012) (quoting Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 914 (Mo. App.
W.D. 2004)). The General Assembly has expressly waived sovereign immunity where a person
sustains injuries either: (1) “directly resulting from the negligent acts or omissions by public
employees arising out of the operation of motor vehicles or motorized vehicles within the course
of their employment” or (2) “caused by [a dangerous] condition of a public entity‟s property.”
§ 537.600.1(1)-(2).4 The General Assembly has further waived sovereign immunity where a
public entity has purchased liability insurance, but the waiver applies only up to “the maximum
amount of and only for the purposes covered by such policy of insurance.” § 537.610.1. Apart
from these express waivers,5 “sovereign or governmental tort immunity as [it] existed at common
law in this state prior to September 12, 1977, . . . remain[s] in full force and effect.” § 537.600.1.
Under the common law, a municipality is not entitled to full sovereign immunity. Kunzie
v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006). Because municipalities operate as
both political subdivisions of the state and independent corporations, they perform both
governmental and non-governmental functions. St. Joseph Light & Power Co. v. Kaw Valley
Tunneling, Inc., 589 S.W.2d 260, 267 (Mo. banc 1979). And because sovereign immunity
4
All statutory references are to the Missouri Revised Statutes 2000, as updated through the 2012
Cumulative Supplement, unless otherwise indicated.
5
It does not appear that any of the statutory waivers apply to the facts of this case.
5
protects the state, as a sovereign, municipalities are cloaked with immunity only when acting as
an arm of the state. Thus, “unlike state entities which receive full sovereign immunity,
municipalities are entitled to sovereign immunity only when engaged in „governmental‟
functions, but not „proprietary‟ functions.” Richardson v. City of St. Louis, 293 S.W.3d 133,
136-37 (Mo. App. E.D. 2009). “The distinction between the governmental and proprietary
functions of municipalities was drawn by the courts in order to impose common law liability on
municipal corporations for the negligence of their agents, servants or officers in the execution of
corporate powers and duties.” State ex rel. Askew v. Kopp, 330 S.W.2d 882, 890 (Mo. 1960)
(emphasis added).6
As the moving party seeking summary judgment, the City bore the burden of
demonstrating that it was entitled to judgment as a matter of law on the Crouches‟ petition.
Rule 74.04(c). “Whether sovereign immunity applies to a defendant is . . . a question of law.”
Kreutz v. Curators of Univ. of Mo., 363 S.W.3d 61, 63-64 (Mo. App. W.D. 2011). And
“Missouri courts have routinely held that sovereign immunity is not an affirmative defense and
that the plaintiff bears the burden of pleading with specificity facts giving rise to an exception to
sovereign immunity when suing a public entity.” Richardson, 293 S.W.3d at 137.
6
“The distinction‟s historical roots . . . pre-date the Revolutionary War.” Janice C. Griffith, Local
Government Contracts: Escaping From the Governmental/Proprietary Maze, 75 Iowa L. Rev. 277, 299 (1990).
During the colonial period municipalities performed many functions that we think of today as the
regimen of private enterprise. Except for the New England towns, American municipalities were
modeled after their English counterparts, which served as centers of trade and industry. These
chartered municipal corporations constructed wharves, built jetties, and operated markets to
facilitate trade. They also controlled the supply and distribution of goods within their mercantile
economies. They restricted the numbers and types of artisans and traders, granted monopolies to
designated inhabitants, and regulated the pricing and quality of goods.
Id.
6
Here, the City moved for summary judgment on the ground that the undisputed material
facts demonstrated that the fire department was acting in a governmental capacity, as a matter of
law.
[O]nce a movant has met the burden imposed by Rule 74.04(c) by establishing a
right to judgment as a matter of law, the non-movant‟s only recourse is to show—
by affidavit, depositions, answers to interrogatories, or admissions on file—that
one or more of the material facts shown by the movant to be above any genuine
dispute is, in fact, genuinely disputed.
ITT Commercial Fin. Corp., 854 S.W.2d at 381. “If the non-movant cannot contradict the
showing of the movant, judgment is properly entered against the non-movant because the movant
has already established a right to judgment as a matter of law.” Id. The Crouches‟ response to
the City‟s motion did not identify any genuine dispute as to the material facts underlying the
City‟s assertion that its fire department was acting in a governmental capacity. Rather, the
Crouches merely disputed whether the undisputed facts supported the City‟s assertion that the
fire department‟s actions were governmental instead of proprietary, as a matter of law.
The distinction between governmental and proprietary functions is a murky one. “A
„maze of inconsistency‟ has developed in suits against cities, producing „uneven and unequal
results which defy understanding.‟” Jones v. State Highway Comm’n, 557 S.W.2d 225, 229
(Mo. banc 1977) (quoting O’Dell v. Sch. Dist. of Independence, 521 S.W.2d 403, 417 (Mo. banc
1975) (Finch, J., dissenting)), abrogated by § 537.600.1. Though frequently criticized and
described by our courts as “obscure,” the dichotomy nevertheless remains the benchmark by
which immunity is determined for tort claims against municipalities.7
7
See, e.g., Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo. App. W.D. 2009); Gregg v. City of
Kansas City, 272 S.W.3d 353, 361 (Mo. App. W.D. 2008); Aiello v. St. Louis Cmty. Coll. Dist., 830 S.W.2d 556,
558 (Mo. App. E.D. 1992).
The distinction has been criticized as a false dichotomy that “is more readily stated in theory rather than
applied in actual practice.” City of Chesapeake v. Cunningham, 604 S.E.2d 420, 427 (Va. 2004); see also
Morningstar Water Users Ass’n, Inc. v. Farmington Mun. Sch. Dist. No. 5, 901 P.2d 725, 731 (N.M. 1995). It has
also been deemed “a mechanically applied rule that „provides the perfect mask for judicial balancing of competing
7
In Missouri, governmental functions are those “„performed by the municipality as an
agent of the state,‟” Bennartz, 300 S.W.3d at 259 (quoting Parish v. Novus Equities Co., 231
S.W.3d 236, 242 (Mo. App. E.D. 2007)), meaning that they are for the benefit of the general
public, Kunzie, 184 S.W.3d at 574, or “the common good of all,” such as “keeping the peace,
enforcing laws and ordinances, and preserving the public health.” Parish, 231 S.W.3d at 242.8
Proprietary functions, on the other hand, have been described as those “benefiting or
profiting the municipality in its corporate capacity,” Kunzie, 184 S.W.3d at 574, in that they
benefit or provide services or conveniences “to a municipality‟s own citizens.” Bennartz, 300
S.W.3d at 259; see also St. Joseph Light & Power Co., 589 S.W.2d at 267.9
Because these definitions contain very broad, malleable terms, our courts have also
suggested guiding principles for their application. In deciding whether a particular function is
governmental or proprietary, “a court must look to the nature of the activity performed,”
St. Joseph Light & Power Co., 589 S.W.2d at 267, “not the nature of the tort.” Jones, 557
S.W.2d at 229. “[T]he nature of the particular defendant‟s conduct is often less important than
the generic nature of the activity.” State ex rel. Bd. of Trs. of City of N. Kansas City Mem’l
Hosp. v. Russell, 843 S.W.2d 353, 359 (Mo. banc 1992). “Rather than examining the motives of
the city employees who were performing the function, the analysis focuses on the motives of the
equities and policies,‟” Morningstar, 901 P.2d at 731-32 (quoting Griffith, supra note 6), and nothing more than
“illusory, elusive, arbitrary, unworkable and a quagmire.” Considine v. City of Waterbury, 905 A.2d 70, 81 (Conn.
2006).
8
Examples of functions of a municipality found to be governmental include: establishment and operation
of schools, creation of municipal fire departments, provision of water for preventing fires and keeping the city
sanitary, and exercise of legislative and judicial powers, Bennartz, 300 S.W.3d at 259; operation of a city hospital,
Richardson v. City of St. Louis, 293 S.W.3d 133, 137 (Mo. App. E.D. 2009); maintenance of a police force,
Oberkramer v. City of Ellisville, 650 S.W.2d 286, 296 (Mo. App. E.D. 1983); provision of airport security, Gregg,
272 S.W.3d at 361-62; and redevelopment of blighted areas, Parish, 231 S.W.3d at 242-43.
9
Examples of functions of a municipality found to be proprietary include: operation of a municipal
drainage system, Thomas v. City of Kansas City, 92 S.W.3d 92, 101 (Mo. App. W.D. 2002); sewer construction,
St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., 589 S.W.2d 260, 267 (Mo. banc 1979); provision of
water for private use, Parish v. Novus Equities Co., 231 S.W.3d 236, 242 (Mo. App. E.D. 2007); demolition of
private property, Larabee v. City of Kansas City, 697 S.W.2d 177, 179-80 (Mo. App. W.D. 1985); and street
sweeping, Davis v. City of St. Louis, 612 S.W.2d 812, 815 (Mo. App. E.D. 1981).
8
legislature that conferred the power upon all municipalities.” Id. “The status of a function of a
city does not vary from day to day with the whims of the particular people elected or appointed
to municipal offices.” Id.
Functions that are otherwise proprietary in nature cannot be deemed governmental
merely because they are performed by those typically engaged in governmental functions.
Larabee v. City of Kansas City, 697 S.W.2d 177, 180 (Mo. App. W.D. 1985). Likewise,
functions that are otherwise governmental are not transformed into proprietary functions merely
because they generate a profit or are accompanied by a fee. Richardson, 293 S.W.3d at 138.
And “negligent performance of a public function, even grossly negligent performance, [does not]
make a governmental function proprietary.” State ex rel. City of Nevada v. Bickel, 267 S.W.3d
780, 783 (Mo. App. W.D. 2008).
The circuit court determined that “[t]he „lift assist‟ calls performed by Defendant serve to
safeguard and preserve the health of those citizens that are unable to mobilize themselves,” and
that the service was “performed for the common good of all.” The court further determined that
the City did not receive any benefit from providing “lift assist” service and, therefore, the service
constituted a governmental function, entitling the City to sovereign immunity.
The Crouches argue that the circuit court‟s determination was erroneous for two reasons:
first, because the department was not responding to an emergency when providing the lift assist,
the service was provided as a convenience to individual citizens, rather than for the good of all;
and second, the actions were not authorized by the City‟s charter and ordinances and were,
therefore, proprietary. We reject both of these arguments.
First, the Crouches suggest that the function is inherently for the convenience of the
City‟s citizens (and therefore proprietary), given that it is a non-emergency function performed at
9
the request of an individual citizen. The Crouches argue that the non-emergency nature of the
service suggests that the fire department‟s response was merely optional and therefore a simple
convenience for the requesting citizen. We disagree.
The mere absence of an emergency does not establish that a function performed by a
municipal entity is proprietary. There are many non-emergency functions that are considered
governmental, such as the establishment and operation of schools, the provision of water for
keeping the city sanitary, the exercise of legislative and judicial powers, the operation of a city
hospital, and the redevelopment of blighted areas. See, e.g., Bennartz, 300 S.W.3d at 259;
Richardson, 293 S.W.3d at 137; Parish, 231 S.W.3d at 242-43. A municipality acts within its
governmental capacity even when offering preventative services that benefit the public health
and safety, such as the provision of health care services, a police force, airport security, and
water for the purpose of fighting fires. See Bd. of Trs. of City of N. Kansas City Mem’l Hosp.,
843 S.W.2d at 359; Bennartz, 300 S.W.3d at 259; Oberkramer v. City of Ellisville, 650 S.W.2d
286, 296 (Mo. App. E.D. 1983); Gregg v. City of Kansas City, 272 S.W.3d 353 (Mo. App. W.D.
2008). Fire departments provide a number of preventative services designed to protect public
health. For example, fire departments conduct heat checks (checking on residents that do not
have access to air-conditioning when temperatures are high) to avoid heat-related illness and
death. The department need not wait until there is an emergency to be acting in a governmental
capacity, if early preventative steps serve to protect public health and safety.
Further, the fact that non-emergency lift assists, like the one performed in this case,
directly benefit only the requesting citizen and his or her caretakers does not render the function
proprietary. In many cases, the services provided by municipalities immediately benefit only the
citizen at issue, but that fact does not render an otherwise governmental function proprietary.
10
For example, when an individual receives care from a municipal hospital for a broken arm, that
citizen is the only person benefited by that particular health service, but that does not negate the
fact that a city hospital protects the health and safety of the public generally. Here, the service
was available to the public generally, and serves to protect the health and safety of individuals
that suffered mobility issues (as well as their caregivers) by preventing them from taking
unnecessary risks in climbing the stairs on their own. Thus, the Crouches‟ argument that
non-emergency services are by their nature proprietary is rejected.
The Crouches‟ second argument again focuses on the non-emergency nature of lift
assists. They argue that the City charter identifies the activities of the fire department only as
fighting fires and responding to emergency situations. Thus, they conclude, because
non-emergency lift assists are not expressly authorized by either the charter or ordinances, they
are a proprietary function. We again disagree.
Although the City‟s charter and ordinances do not authorize the fire department to
engage in non-emergency lift assists,10 that does not mean that the City lacks authority to
undertake this function. In the case of constitutional charter cities, like Kansas City, the primary
source of legal authority is the Missouri Constitution, which provides:
Any city which adopts or has adopted a charter for its own government, shall have
all powers which the general assembly of the state of Missouri has authority to
confer upon any city, provided such powers are consistent with the constitution of
this state and are not limited or denied either by the charter so adopted or by
statute. Such a city shall, in addition to its home rule powers, have all powers
conferred by law.
10
The City argues that the charter and ordinances do, in fact, authorize the fire department to engage in
these activities, through the “other assigned duties” provision of § 408(a)(6) of the charter. We disagree. Though
the charter and ordinances authorize the department to perform several delineated duties (not including
non-emergency lift assists), as well as “such other duties as may be prescribed by law,” and though the fire chief
“approved the use of fire department personnel in „lift assist‟ calls,” KANSAS CITY, MO., MUN. CHARTER §§ 401,
2-231 (2007), available at https://library.municode.com/index.aspx?clientId=10156, the fire chief‟s approval does
not constitute a “dut[y] prescribed by law.” It seems that the fire chief, rather than dictating non-emergency
lift-assist response as a duty of the fire department by rule or regulation, has simply agreed to provide this service.
11
Mo. Const. art. VI, § 19(a). No one has suggested that the constitution or statutes limit the City‟s
authority to provide non-emergency lift assists. Therefore, the question is whether, by delegating
only certain categories of duties to the fire department, the City limited or rejected its authority
to provide non-emergency lift assists. See State ex inf. Hannah ex rel. Christ v. City of
St. Charles, 676 S.W.2d 508, 512 (Mo. banc 1984) (noting that pursuant to article VI, § 19(a) a
charter is like a shield that keeps away powers that would otherwise vest in the city). The
charter‟s language in § 408 does not clearly reject or limit the City‟s authority to perform
functions such as non-emergency lift assists. Thus, the Crouches‟ argument does not support a
finding that the fire department‟s actions were a proprietary function.
That being said, even if the charter or ordinances had expressly authorized the fire
department to engage in non-emergency lift assists, that fact alone would not dictate that such
actions be deemed governmental. That the City, through its charter, assigned a function to one
of its departments does not automatically make that function governmental in nature.11 Rather,
as a municipal entity, fire departments can engage in both governmental and proprietary
functions. Thus, we must look to the specific activity in this case—providing a non-emergency
lift assist—to determine in which capacity the fire department was acting. And it was the
Crouches‟ burden to demonstrate a proprietary capacity.
“Sovereign immunity is the rule rather than the exception.” Benoit v. Mo. Highway &
Transp. Comm’n, 33 S.W.3d 663, 673 (Mo. App. S.D. 2000). Consequently, when an individual
11
The City also argues that “[i]t is axiomatic . . . that the activities of [a] fire department are for the public
good, and therefore a governmental function.” This analysis, however, is too simplistic. The identity of the person
or entity performing the function does not determine its character. State ex rel. Bd. of Trs. of City of N. Kansas City
Mem’l Hosp. v. Russell, 843 S.W.2d 353, 359 (Mo. banc 1992); Larabee, 697 S.W.2d at 180; Rodgers v. Kansas
City, 327 S.W.2d 478, 481-86 (Mo. App. 1959). While certainly a municipal fire department performs many
governmental functions, and the creation and operation of a fire department are, themselves, governmental
functions, the fact that a fire department performs an act does not automatically cloak the act with sovereign
immunity. See Larabee, 697 S.W.2d at 179-80 (“The negligent act in question cannot be protected by labeling it
part of the firefighting function.”).
12
sues a municipality, it is that individual‟s burden to demonstrate that the municipality was
engaged in a proprietary function at the time of the allegedly tortious conduct, thus subjecting it
to liability. See Richardson, 293 S.W.3d at 137. If the individual fails to meet this burden, the
function will be deemed governmental, and immunity will apply.
Here, the fire department‟s conduct of engaging in lift assists served to protect the health
and safety of the general public. The Crouches do not claim, nor do they attempt to demonstrate,
that this function either did not serve to protect public health and safety or only incidentally
benefited public health and safety. See Davis, 612 S.W.2d at 815 (“[I]t would be unjust to allow
a municipality to escape responsibility for the negligent performance of [a] substantially
proprietary duty simply because public health benefits incidentally from its performance.”). The
Crouches‟ claims all hinge on the fact that the service is provided in non-emergency situations.
Reliance on this fact alone, however, is not sufficient to meet their burden. Thus, we find the
circuit court‟s grant of summary judgment to be correct. Accordingly, the grant of summary
judgment is affirmed. In light of this disposition, we need not consider the Crouches‟ second
point on appeal.
Conclusion
The circuit court did not err in granting summary judgment in favor of the City on the
Crouches‟ wrongful death claim. Thus, its judgment is affirmed.
Karen King Mitchell, Judge
Joseph M. Ellis, Presiding Judge, and
Anthony Rex Gabbert, Judge, concur.
13