                                             In the
                           Missouri Court of Appeals
                                     Western District


                                  
 STATE OF MISSOURI EX REL CITY OF 
 LEE'S SUMMIT, MISSOURI,                              WD82262
                Relator,          
                                                      OPINION FILED:
 v.                               
                                                      February 13, 2019
 HONORABLE KENNETH R.             
 GARRETT, III, JUDGE FOR THE 16TH 
 JUDICIAL CIRCUIT OF MISSOURI,    
                                  
             Respondent.          



                    Original Proceeding on Petition for Writ of Prohibition

                                   Before Writ Division:
                Alok Ahuja, P.J., Gary D. Witt, and Thomas N. Chapman, JJ.


       The City of Lee’s Summit (“the City”) seeks a writ of prohibition directing the Circuit

Court of Jackson County to grant the City's motion to dismiss claims against it. In the

underlying suit Kurt Pycior (“Plaintiff”) claims that he was injured, in part, due to the City’s

failure to properly inspect property and enforce its ordinances. The City claims it is entitled to

sovereign immunity against Plaintiff’s claims. We issued a preliminary writ of prohibition and

now make that writ permanent.
                                   Factual and Procedural Background

         Plaintiff filed the underlying suit in the Circuit Court of Jackson County on May 4, 2018.

According to facts alleged in the petition,1 on April 18, 2017, Plaintiff suffered serious injuries

when he fell from an unguarded retaining wall. The wall was situated between two differently

elevated tracts of a parking lot located at the Summit Fair shopping district within the City.

Various corporations, also named in the petition (“Corporate Defendants”), either designed and

built the retaining wall and parking lot (which were constructed between 2009 and 2010), or

owned or operated the real estate where the accident occurred. The City did not own or operate

the property where the retaining wall was located.

         The City adopted portions of the International Building Code (“IBC”) as its regulation

governing, among other things, the design and construction of retaining walls (the “Building

Code).2 In particular Sec. 7-224 of the Building Code provided: “Guards are required at

retaining walls over thirty (30) inches above grade when walking surfaces are within ten (10)

feet of the high side of the retaining wall.” In order to construct the retaining wall and parking

lot, the Corporate Defendants were required to obtain building permits from the City, and the




         1
            “In reviewing a motion to dismiss we examine the pleadings, allowing them their broadest intendment,
treating all facts alleged as true, and construing the allegations favorable to plaintiff to determine whether they
invoke principles of substantive law.” Aiello v. St. Louis Cmty. Coll. Dist., 830 S.W.2d 556, 558 (Mo. App. E.D.
1992).
         2
           Lee’s Summit Ordinance No. 7369 adopted the 2012 IBC and was in effect at the time of the subject
incident. Lee’s Summit Ordinance No. 6399 adopted the 2006 IBC and was in effect at the time of the building
permit and inspections at issue.


                                                          2
City issued building permits after its agents inspected (or failed to inspect) 3 the site or design

plans.

         The City collected the applicable fees and issued the permits which allowed the

Corporate Defendants to construct the retaining wall. Plaintiff alleged that the retaining wall was

not in conformity with the Building Code, as it did not include a guard, fence, or barrier.

         In his petition, Plaintiff claimed that the City’s negligent inspection (or lack of

inspection) contributed to his injuries and that aggravating circumstances warranted an award of

punitive damages. In its Motion to Dismiss the City claimed sovereign immunity. The trial

court denied the motion and the City sought a writ of prohibition in this Court.

                                                     Discussion

         We review de novo whether a defendant claiming sovereign immunity is entitled to

dismissal from suit for failure to state a cause of action. Thomas v. City of Kansas City, 92

S.W.3d 92, 96 (Mo. App. W.D. 2002). “The pleadings are liberally construed, and all alleged

facts are accepted as true and construed in a light most favorable to the pleader.” Id.; see also

State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 82 (Mo. banc 2008). However, “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 v. City of St. Louis, 293 S.W.3d

133, 137 (Mo. App. E.D. 2009).




         3
           Plaintiff’s petition states that Lee’s Summit did conduct an inspection or review (but did so negligently)
and also alleges that Lee’s Summit failed to conduct an inspection.


                                                           3
        A writ of a prohibition is an extraordinary remedy. State ex rel. Norfolk S. Ry. Co. v.

Dolan, 512 S.W.3d 41, 45 (Mo. banc 2017). It is available:

        (1) to prevent the usurpation of judicial power when the trial court lacks authority
        or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of
        discretion where the lower court lacks the power to act as intended; or (3) where a
        party may suffer irreparable harm if relief is not granted.

Id. (quoting State ex rel. Missouri Pub. Def. Comm'n v. Waters, 370 S.W.3d 592, 603 (Mo. banc

2012)). This Court is typically reluctant to exercise our authority to issue a writ of prohibition to

correct interlocutory error. State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 500 (Mo. App. E.D.

1985). However,“[i]f a party cannot state facts sufficient to justify court action or relief, it is

fundamentally unjust to force another to suffer the considerable expense and inconvenience of

litigation. It is also a waste of judicial resources and taxpayer money.” State ex rel. Henley v.

Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009). “A writ of prohibition is appropriate to correct

interlocutory error where parties do not have adequate remedy by way of appeal.” State Ex rel.

City of Nevada v. Bickel, 267 S.W.3d 780, 782 (Mo. App. W.D. 2008).

        “Prohibition is particularly appropriate when the trial court, in a case where the facts are

uncontested, wrongly decides a matter of law thereby depriving a party of an absolute defense.”

State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 101 (Mo. App. S.D. 1996) (quoting State

ex rel. Feldman v. Lasky, 879 S.W.2d 783, 784–85 (Mo. App. E.D. 1994)). Where it applies,

sovereign immunity is an absolute defense. State ex rel. Div. of Motor Carrier & R.R. Safety v.

Russell, 91 S.W.3d 612, 615 (Mo. banc 2002). Prohibition is therefore an appropriate remedy

when “a defendant is clearly entitled to immunity.” State ex rel. Bd. of Trs. of City of North

Kansas City Mem'l Hosp. v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992).


                                                   4
        Under the common law municipalities are immune from tort liability “when engaged in

‘governmental’ functions, but not ‘proprietary’ functions.” Richardson, 293 S.W.3d at 136–37.

Governmental functions are “performed for the common good of all.” Parish v. Novus Equities

Co., 231 S.W.3d 236, 242 (Mo. App. E.D. 2007). Proprietary functions entail acts that are

performed for the special benefit or profit of the municipality. State ex rel. City of Marston v.

Mann, 921 SW.2d 100, 102 (Mo. App. S.D. 1996). Proprietary functions often involve a

municipality providing services or conveniences to its citizens. Bennartz v. City of Columbia,

300 S.W.3d 251, 259 (Mo. App. W.D. 2009).

        Plaintiff maintains that the City was engaged in a proprietary function when it negligently

inspected (or failed to inspect) the retaining wall and then issued its building permit. Plaintiff

claims no other exception to sovereign immunity.4 We must therefore determine whether

Plaintiff has pled with specificity facts which indicate that the City was engaged in a proprietary

function when it issued its building permit. Richardson, 293 S.W.3d at 137.

        Plaintiff’s Petition, in pertinent part, provides as follows:

               39. Upon information and belief, Defendant Lee’s Summit issued building
        permits after its agents and/or employees inspected the site and or/design plans
        and collected a fee5 for doing so.
        4
            “A municipality has sovereign immunity from actions at common law tort in all but four cases: (1) where
a plaintiff's injury arises from a public employee's negligent operation of a motor vehicle in the course of his
employment; (2) where the injury is caused by the dangerous condition of the municipality's property; (3) where the
injury is caused by the municipality performing a proprietary function as opposed to a governmental function; and
(4) to the extent the municipality has procured insurance, thereby waiving sovereign immunity up to but not beyond
the policy limit and only for acts covered by the policy.” Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo.
App. W.D. 2009) (internal citations omitted). Plaintiff’s Petition alleged no facts that encompass the other
exceptions and he makes no argument in support of any other exception to sovereign immunity. As a consequence,
the only exception for our consideration is whether the City was engaged in a proprietary function in the course of
the conduct alleged in the Petition.
        5
          The petition does not indicate the amount charged for the permit fee. Allegations regarding the amount of
the permit fee (or its purpose) were only raised in responsive arguments and were not included in the petition.


                                                         5
        ****

                84. Defendant Lee’s Summit, pursuant to City Code and Regulation, had
        a duty to inspect the retaining wall to insure its safety and compliance with all
        applicable City Codes. Such duty to conduct City Inspections is and was a
        mandatory and ministerial action that was to be taken by Defendant Lee’s Summit
        through its agents and employees, and more specifically, by its inspectors.

                85. In conducting construction inspections for compliance with City
        Codes, Defendant Lee's Summit, through its authorized agents, employees, and
        inspectors would conduct themselves in such a fashion that they were performing
        ministerial activities. The failure to install a guardrail fence, barricade or other
        safety feature along the retaining wall was open and obvious to any inspector or
        inspectors, if such inspection had in fact taken place.

                86. Specifically, the absence of a guard, fence or barricade on of [sic] a
        retaining wall over thirty inches above grade and the high side of the retaining
        wall was within ten feet of a walking surface would have been open and obvious
        to any inspection. Such condition, left unremedied, would be a condition that was
        not only dangerous and defective, but in violation of City Code.

               87. Failure of the Defendant Lee’s Summit to inspect was negligent and
        was a failure to perform non-discretionary6 duties.

        When we determine whether sovereign immunity bars a claim, our “analysis focuses on

the activity giving rise to the injury to determine whether the activity was an exercise of a

governmental or a proprietary function.” State ex rel. Bd. of Trustees of City of N. Kansas City

Mem'l Hosp., 843 S.W.2d at 358. Promulgation of a building code by a municipality is an

exercise of the police power conferred on it by the legislature for health and safety. Engelage v.




        6
          Throughout his Petition, Plaintiff contended that certain duties are non-discretionary. The distinction
between discretionary and non-discretionary (ministerial) duties is an issue when analyzing whether public
employees are entitled to claim official immunity. E.g., Rhea v. Sapp, 463 S.W.3d 370, 376 (Mo. App. W.D. 2015).
The distinction between ministerial and discretionary duties is not relevant in determining whether a function is
proprietary or governmental.



                                                        6
City of Warrenton, 378 S.W.3d 410, 414–15 (Mo. App. E.D. 2012). “It is well established that

enforcement of ordinances is a governmental function.” Nevada v. Bickel, 267 S.W.3d at 783.

       In Nevada v. Bickel, the claimant alleged that the City of Nevada had charged a fee for an

electrical inspection that was woefully inadequate. Id. The occupant of the dwelling that had

been inspected died of electrocution and the City of Nevada was sued for conducting a negligent

inspection. Id. at 782. The claimant in Nevada v. Bickel (like Plaintiff herein) argued that the

inspection was so negligent it was tantamount to performing no inspection, and that its only real

purpose was pecuniary (to collect the fee), and thus a proprietary function. Id. at 783. Granting

a permanent writ of prohibition based on sovereign immunity, the Nevada v. Bickel court stated:

“We find neither assertion persuasive. Charging a fee for a public service does not transform a

governmental function into a proprietary one. Nor does negligent performance of a public

function, even grossly negligent performance, make a governmental function proprietary.” Id.

(internal citations omitted).

       Plaintiff argues that, because there may have been no inspection before the City of Lee’s

Summit issued its permit and charged its fee, the facts herein are distinguishable from Nevada v.

Bickel (where the inspection was alleged to be grossly inadequate). Plaintiff cites no basis for

this distinction, and we find none.

         “[F]unctions that are otherwise governmental are not transformed into proprietary

functions merely because they generate a profit or are accompanied by a fee.” Crouch v. City of

Kansas City, 444 S.W.3d 517, 524 (Mo. App. W.D. 2014). When assessing whether an action is

governmental or proprietary we do not assess the particular performance of a specific event but



                                                 7
rather the general nature of the activity being performed. State ex rel. Bd. of Trustees of City of

N. Kansas City Mem'l Hosp., 843 S.W.2d at 359.

       In examining the question of whether an activity is governmental or proprietary,
       the nature of the particular defendant's conduct is often less important than the
       generic nature of the activity. Rather than examining the motives of the city
       employees who were performing the function, the analysis focuses on the motives
       of the legislature that conferred the power upon all municipalities…. 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.

       Paragraph 84 of Plaintiff’s petition indicates that the City had a “duty to inspect the

retaining wall to insure its safety and compliance with all applicable City Codes.” Providing the

petition in question the broadest interpretation of its allegations, Plaintiff claims that the City

breached its duty to properly enforce its building code. “The generic nature of the inspections is

to enforce ordinances designed to protect public health and safety. It is well established that

enforcement of ordinances is a governmental function.” Nevada v. Bickel, 267 S.W.3d at 783.

       An omission, or failure to act, may be the basis for a claim of negligence, and such failure

to act may be in the course of carrying out a governmental function. See Aiello v. St. Louis

Community College, 830 S.W.2d 556, 559 (Mo. App. E.D. 1992). For example, in Aiello the

Plaintiffs claimed that a school district had failed to discover and stop fraudulent expense

reimbursement requests. Id. The Aiello court found that the alleged omissions were in the

course of the district’s duty to manage its funds, and thus a governmental function entitled to

sovereign immunity. Id.

       Regardless of whether Plaintiff alleges an act or omission that constituted a breach of the

City’s duty of care to enforce its building code, the City was engaged in a governmental function


                                                   8
in doing so. The fact that the City charged a fee for issuance of a permit did not transform

enforcement of its building code into a proprietary function. Crouch, 444 S.W.3d at 524.

Because the alleged negligent acts (or omissions) of the City were in the course of carrying out

the governmental function of enforcing its building code, the City is entitled to sovereign

immunity.

                                               Conclusion

         Because the City was entitled to an absolute defense of sovereign immunity, the circuit

court erred in overruling the City’s Motion to Dismiss.7 Accordingly, our writ is now made

permanent. The circuit court shall take no further action against the City other than entering an

order dismissing all of the claims against the City with prejudice. Nothing herein should be read

to affect any of the remaining claims against the other named defendants in the underlying action

pending before the circuit court.


                                                                /s/ Thomas N. Chapman
                                                                Thomas N. Chapman, Judge


All concur.




         7
           In its Motion to Dismiss the City also claimed that Plaintiff was not entitled to seek punitive damages
against the City. Because the City was entitled to sovereign immunity with respect to all claims, we have not
separately addressed the issue of punitive damages.


                                                          9
