holding a hospital to an ordinary care standard when a patient died in a fire started by another patient who was smoking a cigarette and using a flammable cup as an ash tray
How later courts described this case
- holding a hospital to an ordinary care standard when a patient died in a fire started by another patient who was smoking a cigarette and using a flammable cup as an ash tray
- “Where the theory of recovery is negligence, any knowledge or warning that defendant had of the type of accident in which plaintiff was injured clearly aids the jury in determining whether a reasonably careful defendant would have taken further precautions under all the facts and circumstances, which include the knowledge of defendant of prior accidents.”
- abrogated on unrelated grounds by Southers v. City of Farmington, 263 S.W.3d 603, 614 n.13 (Mo. banc 2008)
- discussing State ex rel. Trimble v. Ryan, 745 S.W.2d 672 (Mo. banc 1988)
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Southers v. City of Farmington, 263 S.W.3d 603 (2008)
836 S.W.2d 911, 928 (Mo. banc 1992), abrogated on other grounds by Southers v. City of Farmington, 263 S.W.3d 603
The opinion
concurring.
I concur, with some reluctance.
As the principal opinion points out, this Court abolished sovereign immunity by the decision in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). Had this holding remained in force, the doctrine of Zummo v. Kansas City, 285 Mo. 222 , 225 S.W. 934 (Mo.1920), would have been abrogated. But the General Assembly, in its wisdom, undid the effect of Jones by legislation that reinstated sovereign immunity “as existed at common law in this state prior to September 12, 1977,” with specified exceptions. The exceptions do not include the provision of health care, except in the infrequent instances in which the dangerous condition of property exception can be established. The Court has made it clear that sovereign immunity attends the provision of hospital facilities by a public entity, State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621 (Mo. banc 1990), and has resisted numerous attempts to hold public hospitals liable for malpractice. In so doing we serve the legislature’s purpose, whatever our views as to the desirability of imposing such liability might be.
The TMC arrangement, on its face, is a consortium among the City of Kansas City, Jackson County, and the University of Missouri to combine their resources in health care provision. Inasmuch as each of these entities would be immune from liability for health care directly provided, the consortium, properly established, should likewise be immune. State ex rel. Trimble v. Ryan, 745 S.W.2d 672 (Mo. banc 1988). 1 This is especially so in the light of the constitutional and statutory provisions in the principal opinion encouraging cooperation among governmental units.
But, as the principal opinion points out, the public entities surrendered control of the TMC operation to a self-perpetuating Board of Trustees. Thus the operation is indistinguishable from a private, charitable hospital, which now enjoys no tort immunity. Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969). Although the Court considered it wise to abolish both charitable and sovereign immunity, the legislature, which has the final say, disagreed as to the latter. Divorced from public con *930 trol, TMC partakes more of the charitable than the sovereign model.
The circumstance that the public agencies chose a Chapter 355 corporation as appropriate means for carrying out their public function should not be determinative. State ex rel. Regional Justice Information Service Commission v. Saitz, 798 S.W.2d 70S (Mo. banc 1990). The essential issue is one of control. If public control remains, speculation that a political subdivision might not be able to create a “sovereign” is unnecessary. Regional Justice shows that public agencies may use Chapter 355, if the element of control is present.
It is said that one of the reasons for creating the separate entity was “to alleviate political interference....” But we must remember that politics provide the means for participation in democratic government. An agency that is free from politics is not a public entity. Those who engage in blanket denouncements of politics and politicians because of the misdeeds of some should consider the alternative, which would limit citizen participation in the governmental process. Attempts to lodge public decisions in the wise and the good, free from “political interference,” may have serious consequences for the government of the people. Here, however, the only apparent consequence is the change from the sovereign to the charitable mold.
I find the opinion in Truman Medical Center, Inc. v. NLRB, 641 F.2d 570 (8th Cir.1981), expressed with Judge Hanson’s customary soundness and clarity, interesting and similar but not dispositive. Congress establishes the framework for the National Labor Relations Board, but the Board exists for a special purpose. It possesses substantial discretion in determining when it will accept jurisdiction. Its acceptance or denial of jurisdiction does not necessarily control our decisions about sovereign immunity.
Nor is sovereign immunity impinged if a governmental body solicits or receives contributions from the public. This method of financing is becoming increasingly common, especially for public educational institutions, which do not receive adequate support from tax revenues. The receipt of such contributions should not jeopardize the enjoyment of sovereign immunity.
With these observations, I concur.
. My disagreement with that opinion has nothing to do with the joint participation feature.