The opinion
WILLIAM RAY PRICE, JR.,
Judge, dissenting.
I dissent. The accident that occurred in this case injuring Cain was the result of the negligence of those individuals involved in cutting down the tree and not the result of any pre-existing dangerous condition of property.
Under section 537.600.1, RSMo 2000, a public entity is entitled to immunity from liability and suit for negligent acts or omissions except when caused by the condition of the public entity’s property. It was not until Cain and her fellow inmates began cutting the tree that it became dangerous. This situation is distinguishable from that in Alexander v. Missouri, 756 S.W.2d 539 (Mo.banc 1988).
In Alexander , a partition had been placed at the bottom of a ladder, which created a dangerous condition; there was no ongoing, intervening activity by another that involved the partition. Id. at 541-42 . Here, Ms. Fitzpatrick had not terminated her efforts to fell the tree and left the tree in a dangerous condition. Instead, she was in the process of negligently felling the tree and stopped only to repair the chainsaw so that she could continue her efforts.
Our courts have consistently rejected claims like those of Cain’s where the condition of the property at issue was not dangerous without the intervening acts of others. State ex rel. St. Louis State Hospital v. Dowd, 908 S.W.2d 738 (Mo.App.1995); Farrell v. St. Louis County, 190 S.W.3d 401, 404 (Mo.App.2006).
Denial of the Missouri Highways and Transportation Commission’s requests for directed verdict and judgment notwithstanding the verdict was error, and the judgment should be reversed.