holding that the negligent placement of a folding room partition at the foot of a ladder on which plaintiff was working created a physical deficiency which constituted a dangerous condition
How later courts described this case
- holding that the negligent placement of a folding room partition at the foot of a ladder on which plaintiff was working created a physical deficiency which constituted a dangerous condition
- holding that a dangerous condition may be created by the positioning of various items of property in relation to one another rather than by an intrinsic defect in the property
- placement of folding room partition against ladder created physical deficiency in State’s property that constituted a dangerous condition of public property
- dangerous condition refers to defects in or on real and personal property of public entity; condition on public entity’s property dangerous because defect in physical condition of public property existed when placement of personal property, without intervention by third party, posed a physical threat to plaintiff
Written by the judges who cited it.
The opinion
WELLIVER, Judge,
dissenting.
I respectfully dissent for the reasons set forth in Twente v. Ellis Fischel State Cancer Hospital, 665 S.W.2d 2 (Mo.App.1983); Kanagawa v. State By and Through Freeman, 685 S.W.2d 831 (Mo. banc 1985); and Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. banc 1988), decided contemporaneously herewith. I do not believe that this is the kind of dangerous condition of property contemplated by either the Seventy-Ninth General Assembly, Second Regular Session, 1978, or the Eighty-Third General Assembly, First Regular Session, 1985.
Between the 1985 amendment which makes all governmental entities fully responsible for negligent, defective or dangerous design of roads and highways and the holding of the majority herein, sovereign immunity has been as effectively abrogated today as it was by the decision of Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977) and every governmental entity in the state is facing the same financial disaster which they faced in 1978.
*543 I know of nothing in the Constitution requiring judges to bury their heads in the sand and to ignore reality while placing their approval on litigation such as is here involved. The appellant herein had to be covered and protected by workers’ compensation. The State, I am confident, would not contract with uninsured service companies. If a recovery is permitted, the insurer of the workers’ compensation will be subrogated 1 to get back all it has paid (less attorney’s fees and expenses) and the appellant will get the excess recovered (less attorney’s fees and expenses). Surely there is a better use for taxpayers’ funds than pouring them into such litigation.
. 287.150. Subrogation to rights of employee or dependents against third person, effect of recovery. — 1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subro-gated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation.
3. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered, or the balance of the recovery may be divided between the employer and the employee or his dependents as they may agree....
Section 287.150, RSMo 1986.