                                                      In the
                                Missouri Court of Appeals
                                            Western District
 ERIN THOMPSON AND                                          )
 CLARENCE BELL, XAVIOR                                      )
 DYDELL, A MINOR, BY AND                                    )    WD82589 Consolidated with
 THROUGH HIS MOTHER AND                                     )    WD82590, WD82591 and WD82592
 NEXT FRIEND, AMBER DYDELL,                                 )
 CARISSA WILSON AND KARLO                                   )    OPINION FILED:
 GINN, SR.,                                                 )    December 17, 2019
                                                            )
                     Appellants,                            )
                                                            )
 v.                                                         )
                                                            )
 CITY OF ST. JOSEPH, MISSOURI,                              )
                                                            )
                    Respondent.                             )

                Appeal from the Circuit Court of Buchanan County, Missouri
                           The Honorable Daniel F. Kellogg, Judge

       Before Division Three: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and
                              Anthony Rex Gabbert, Judge


         Erin Thompson; Clarence Bell; Xavior Dydell, by and through his mother and next

friend, Amber Dydell; Carissa Wilson; and Karlo Ginn, Sr.1 (collectively "Appellants")



          1
            This case arises from an automobile collision where three passengers in the vehicle were killed and one
passenger (Dydell) was injured. All of the Appellants, except Dydell, brought actions for wrongful death based on
the loss of their loved ones. Dydell was a minor, and his mother brought this action as next friend for the injuries to
her son. For ease of reference, we will refer to the victims by their last names rather than the named plaintiffs in the
underlying lawsuits who are acting in their representative capacities. No familiarity or disrespect is intended.
appeal from the Circuit Court of Buchanan County's summary judgment finding in favor

of the City of St. Joseph ("City"). The Appellants raise one point on appeal and request

this Court reverse the grant of summary judgment and remand for trial. We reverse and

remand.

                                           Factual Background2

        The City owns and maintains Riverside Road, which consists of one northbound

lane and one southbound lane located within the City. On April 14, 2017, Skylar Lucas-

Cox ("Lucas-Cox") drove a stolen Toyota Tundra in the northbound lane of Riverside

Road, traveling at 62 miles per hour in a 40 miles per hour zone. The Tundra's passenger-

side wheels left the lane of travel onto the roadside. The edge of the roadway did not have

a line marking its location and there was an approximate nine inch drop-off from the edge

of the pavement onto the roadside. When Lucas-Cox attempted to remount the roadway,

the vehicle veered sharply to the left and collided with a car in the southbound lane driven

by Jacob Stallworth ("Stallworth"). The Tundra had five passengers in addition to Lucas-

Cox, and three of the passengers: Ginn, Jr., Crockett, and Thompson died in the collision.

Dydell was seriously injured.

        On September 25, 2017, Lucas-Cox pled guilty to the criminal charges of two counts

of involuntary manslaughter and one count of second degree assault and as part of the

factual basis for the plea admitted that he was impaired by drugs and/or alcohol at the time

of the accident.


        2
          In reviewing a challenge to a trial court's grant of summary judgment, "we review the record in the light
most favorable to the party against whom judgment was entered." Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d
787, 794 (Mo. App. W.D. 2018).

                                                         2
         On July 28, 2017, Dydell petitioned to recover damages against the City for the

injuries he sustained in the accident and alleged that Riverside Road was in a dangerous

and defective condition because the road had an "unreasonable and treacherous roadway

drop-off on the east edge . . . which was unmarked and not maintained for the safe operation

of motor vehicles." On August 23, the remaining Appellants filed petitions for damages in

wrongful death raising the same allegations regarding the dangerous condition of Riverside

Road. In its answer, the City denied the allegations and raised sovereign immunity as an

affirmative defense. After a period of discovery, the City moved for summary judgment.

The circuit court conducted a hearing, and the court entered its order granting summary

judgment in favor of the City on February 22, 2019. This appeal followed.3

                                             Standard of Review

         The Missouri Supreme Court has outlined our applicable standard of review for

summary judgment:

         The trial court makes its decision to grant summary judgment based on the
         pleadings, record submitted, and the law; therefore, this Court need not defer
         to the trial court's determination and reviews 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); Rule 74.04. In reviewing the decision to
         grant summary judgment, this Court applies the same criteria as the trial court
         in determining whether summary judgment was proper. Id. Summary
         judgment is only proper if the moving party establishes that there is no
         genuine issue as to the material facts and that the movant is entitled to
         judgment as a matter of law. Id. The facts contained in affidavits or
         otherwise in support of a party's motion are accepted "as true unless
         contradicted by the non-moving party's response to the summary judgment
         motion." Id. Only genuine disputes as to material facts preclude summary

         3
          Because the parties to each action filed nearly identical Motions for Summary Judgment and Suggestions
in Opposition, the circuit court consolidated the Appellants' separate causes of action for the purposes of the hearing
on summary judgment. Each Appellant filed separate notices of appeal. On Appellants' motion, we consolidated
the appeals as the legal issues presented are identical.

                                                           3
         judgment. Id. at 378. A material fact in the context of summary judgment is
         one from which the right to judgment flows. Id.

         A defending party . . . may establish a right to summary judgment by
         demonstrating: (1) facts negating any one of the elements of the non-
         movant's claim; (2) "that the non-movant, after an adequate period for
         discovery, has not been able and will not be able to produce sufficient
         evidence to allow the trier of fact to find the existence of any one" of the
         elements of the non-movant's claim; or (3) "that there is no genuine dispute
         as to the existence of the facts necessary to support movant's properly
         pleaded affirmative defense." Id. at 381. Each of these three methods
         individually "establishes the right to judgment as a matter of law." Id.

Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011).

                                                      Analysis

         Appellants raise one point on appeal assigning error to the circuit court's grant of

the City's Motion for Summary Judgment arguing that the City waived its sovereign

immunity based on the dangerous condition of public property exception.4 In its motion

for Summary Judgment the City argued that it was entitled to the protections of sovereign

immunity pursuant to section 537.6005. Sovereign immunity is expressly and absolutely

waived for:

         Injuries caused by the condition of a public entity's property if the plaintiff
         establishes [(1)] that the property was in dangerous condition at the time of
         the injury, [(2)] that the injury directly resulted from the dangerous condition,
         [(3)] that the dangerous condition created a reasonably foreseeable risk of
         harm of the kind of injury which was incurred, [(4)] and that either a
         negligent or wrongful act or omission of an employee of the public entity
         within the course of his employment created the dangerous condition or a
         public entity had actual or constructive notice of the dangerous condition in


         4
           Although, the circuit court's judgment did not expressly state its rationale for granting City's motion, we
presume the judgment is grounded in the reasoning set forth in City's motion, which argued that the City had not
waived its sovereign immunity under these facts. Stewart v. Liberty Mut. Fire Ins. Co., 349 S.W.3d 381, 385 (Mo.
App. W.D. 2011).
         5
           All statutory citations are to RSMo 2016 as currently updated, unless otherwise noted.

                                                           4
       sufficient time prior to the injury to have taken measures to protect against
       the dangerous condition.

Section 537.600.1(2).

City's Motion for Summary Judgment was based on its argument that:

       The City's Sovereign Immunity is not waived because as a matter of law the
       alleged [(1)] injuries did not directly result from any alleged condition of
       Riverside Road. [(2)] Even if there was a potentially dangerous condition on
       Riverside Road (an allegation which is denied), the direct cause of the alleged
       damages is the admitted criminal acts of Skylar Lucas-Cox. Those criminal
       acts are intervening or superseding causes of plaintiffs' alleged injuries.
       Thus, those criminal acts preclude a finding of direct cause by any condition
       of the City's property, and thus there is no waiver of immunity.

Appellants argue the circuit court erred because there is a genuine issue of material fact as

to whether Appellants' injuries were the direct result of the defects on Riverside Road,

namely its lack of an edge line marking and the existence of the excessive drop-off, and

that the actions of Lucas-Cox did not constitute an intervening or superseding cause so as

to relieve the City from liability. Therefore, the sole issue on appeal is the application of

these facts to the second element of causation, i.e. that the injury directly resulted from the

dangerous condition of the roadway.

       "The phrase 'directly resulted from' in section 537.600.1(2) is synonymous with

'proximate cause.'" State ex rel. Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d

58, 60 (Mo. banc 1998). "The negligence of the [City] need not be the sole cause of the

injury, as long as it is one of the efficient causes thereof, without which injury would not

have resulted." Hensley v. Jackson Cty., 227 S.W.3d 491, 496 (Mo. banc 2007) (quoting

Oldaker v. Peters, 869 S.W.2d 94, 100 (Mo. App. W.D. 1993)); Britton v. City of St. Louis,

552 S.W.3d 139, 142 (Mo. App. E.D. 2018)

                                              5
        The City argues that it has not waived its immunity as a matter of law because the

conditions of Riverside Road were not the direct or proximate cause of the accident for two

reasons. First, the City argues that the conditions on Riverside Road, namely the absence

of an edge line, lack of signage, and the drop-off, did not cause Lucas-Cox to leave the

roadway.      Second, the City argues that Lucas-Cox's criminal acts were intervening,

superseding causes which preclude a finding of direct cause as a matter of law. We

disagree.

       A. City's argument that the conditions of the road did not cause Lucas-Cox to
leave the roadway

        In arguing that the deficiencies on Riverside Road did not cause Lucas-Cox to leave

the roadway, the City misapplies the test to determine whether proximate cause exists. The

issue is not whether the deficiencies caused the vehicle to leave the roadway. Rather, the

issue is whether the deficiencies are an efficient cause of Appellants' injuries. Britton, 552

S.W.3d at 142.

        Appellants' expert witness James Loumiet ("Loumiet") testified in his deposition

that the lack of edge lines "would make it more difficult for a driver to maintain position

on the roadway" "because you're losing that informational guidance for the driver." The

lack of edge line made it more difficult for Lucas-Cox to remain on the roadway. Loumiet

further testified that the nine-inch edge drop at the side of the roadway was severe,6 and




        6
           The Missouri Engineering Policy Guide recommends limiting edge drops to no more than two inches,
which is industry standard.

                                                       6
the edge drop was a "contributing factor or contributing cause" to the accident.

Additionally, Loumiet testified that after Lucas-Cox left the roadway:

       [Lucas-Cox] attempted to steer to the left to remount the roadway. That did
       not happen immediately. At some point the vehicle has enough steer angle
       to the left that it remounts the roadway. At that point there is a large
       cornering force . . . because of the steering of the vehicle and the almost
       instantaneous absence of an edge force from the pavement edge drop, and it
       creates what's called a slingshot reentry.

In a slingshot reentry, "the vehicle just takes off to the left very quickly," and Appellants

contend this slingshot reentry is what forced Lucas-Cox into the southbound lane and was

a contributing cause of the resulting collision. Through this testimony, a juror could find

that the edge-drop was an "efficient cause" of Appellants' injuries, and because reasonable

minds could differ on this issue, a genuine issue of material fact exists. Because the

underlying facts are uncertain, it is for a jury to determine whether the lack of edge lines

and signage together with the edge-drop was or was not the proximate cause of Appellants'

injuries.

      B. City's argument that Lucas-Cox's criminal actions were intervening,
superseding causes

       Even though a genuine issue of material fact exists as to whether the lack of edge

lines and signage with the existence of the edge-drop were contributing factors to the

accident, the City could prevail on its motion if Lucas-Cox's criminal actions constituted

intervening and superseding causes which preclude a finding of proximate cause as a matter

of law. Lucas-Cox pleaded guilty to manslaughter and assault and admitted that at the time

of the accident he was speeding, driving a stolen car, and operating the vehicle under the

influence of alcohol and/or drugs. "A 'court may decide the question of proximate cause

                                             7
when the evidence reveals the existence of an intervening cause that eclipses the role the

[City's] conduct played in the [Appellants'] injur[ies].'" Wilmes v. Consumers Oil Co. of

Maryville, 473 S.W.3d 705, 724 (Mo. App. W.D. 2015) (quoting Stafford v. Drury Inns,

Inc., 165 S.W.3d 494, 497 (Mo. App. E.D. 2005)).            "The act must be a 'new and

independent force which so interrupts the chain of events that it becomes the responsible,

direct, proximate and immediate cause of the injury.'" Id. (quoting Lewis v. Biegel, 204

S.W.3d 354, 363 (Mo. App. W.D. 2006)). "However, an 'intervening cause will not

preclude liability where it is itself a foreseeable and natural product of the original

negligence.'" Id. (quoting Vintila v. Drassen, 52 S.W.3d 28, 41 (Mo. App. S.D. 2001)).

       In Williams v. City of Independence, 931 S.W.2d 894, 896 (Mo. App. 1996), we

noted that:

       It is well-established that a city has a duty "to exercise ordinary care to
       maintain its streets in a reasonably safe condition for travel by those using
       them in the proper manner and with due care." Lavinge v. City of Jefferson,
       262 S.W.2d 60, 63 (Mo. App. W.D. 1953). Likewise, "a city is liable for
       injuries sustained by one properly traveling its streets by reason of failure to
       barricade or warn of an excavation, declivity or other dangerous condition
       on the border of the travelled portion of a street or so near thereto that a
       traveler by accidental misstep or inadvertent deviation is injured by it." Id.

       However, this is not a duty to protect against all possible injuries, just those
       that are reasonably foreseeable. Rothwell, 845 S.W.2d at 44. In cases such
       as the one at bar, an injury is reasonably foreseeable if a "driver and vehicle
       normally using the roadway or deviating slightly in the normal use of the
       roadway will potentially encounter injury from the placement and
       maintenance of the [condition]." Id.

We held that:

       there is no question that the headwall, located eight feet off of the road, was
       wholly outside of the improved portion of the road and did not interfere with
       those making normal use of the road. We refuse to find that crossing the

                                              8
        center line, travelling through the opposite lane of traffic, and driving across
        several private lawns before hitting a headwall eight feet off of the roadway
        qualifies as a 'slight deviation' from the road.

Id. at 897.

        However, the facts of the instant case show that Lucas-Cox's vehicle did not leave

the roadway entirely but only the tires closest to the edge of the road left the roadway,

which is a common occurrence; and according to Appellants' expert, the severe drop off at

the edge of the roadway caused the driver to overcorrect and cross the center line of the

roadway. See Adkins v. Hontz, 337 S.W.3d 711 (Mo. App. W.D. 2011) (abrogated on other

grounds) (tires went off the pavement and onto the shoulder and upon re-entry crossed

center line); George v. Howard Constr. Co., 604 S.W.2d 685, 691 (Mo. App. W.D. 1980)

(tires went off the roadway onto the shoulder and upon re-entry "careened at an angle across

the center of the traveled portion of the highway"). We conclude that Lucas-Cox's

passenger-side wheels leaving the roadway was a "slight deviation" as contemplated by

Lavinge and Williams. Loumiet testified that pavement edge drops have "been a long

known problem" and are "serious safety problem[s] because accidents relating to pavement

edge drops tend to be severe in nature. . . ." Furthermore, Loumiet stated in his affidavit

that:

        I would in my expert opinion expect the driver who senses the drop off of the
        right tires to immediately react by attempting to remount the northbound
        lane, and even at 40 mph or less, the large steering angle would result in the
        loss of control of the vehicle into the southbound lane, which occurred in this
        accident.
Therefore, we find Appellants introduced sufficient evidence in the summary judgment

record to put the issue before the jury whether the City should have foreseen that the lack

                                               9
of edge line markings and the excessive drop off on the edge of the roadway could cause a

driver leaving the roadway in a manner similar to Lucas-Cox to overcorrect upon reentry

and crash the vehicle resulting in similar injuries.

       The City relies on Dierker, 961 S.W.2d at 59, 61, where sovereign immunity was

not waived when a fifteen-year-old dropped a twenty-pound chunk of concrete from an

overpass onto a vehicle traveling below. The driver was killed, and the teenager was

charged with involuntary manslaughter. Id. at 59. The driver's family brought a wrongful

death action against several defendants including the Missouri Highway and

Transportation Commission ("MHTC"), alleging the overpass was negligently constructed

because the fencing and lighting were inadequate and because MHTC left loose pieces of

concrete on the overpass. Id. at 59-60. The Court found that the driver's "death was not

the direct result of the condition of the overpass, which only 'in some remote way presaged

the commission' of the crime." Id. at 61 (quoting Kanagawa v. State by and through

Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985) (overruled on other grounds)). The Court

found that the damages therein were "surprising, unexpected, or freakish" and were

therefore not the "natural and probable consequences of a defendant's actions." Id. The

City broadly interprets the holding of Dierker to mean that all criminal actions preclude

waiver of sovereign immunity as a matter of law, but this interpretation is overly broad and

inconsistent with other Missouri case law.

       In Linton v. Missouri Highway and Transportation Commission, 980 S.W.2d 4, 7,

11 (Mo. App. E.D. 1998), MHTC argued that "the negligence of the driver in driving while

intoxicated was a supervening cause," but the court ultimately found that MHTC "was not

                                              10
immune from suit as in Dierker." In that case, Sandra Hertlein and two passengers were

traveling westbound on an interstate highway and exited the highway via an exit on the left

side of the interstate, which was near a reversible lane that ran between normal lanes of

traffic. Id. at 6. At the end of the exit ramp, the vehicle drove through three flashing red

traffic signals, nearly struck an ambulance, and ultimately collided into a concrete railing

on the overpass. Id. At the time of the accident, Hertlein's blood alcohol content was .188

percent. Id. All three individuals died in the accident, and their estates brought a wrongful

death suit against MHTC alleging the highway was negligently designed and provided

inadequate warning. Id. Substantial evidence demonstrated "the left hand exit was

dangerous and could catch drivers unaware due to the lack of signing." Id. at 9. The court

reasoned that "each dangerous condition pertaining to the state, standing alone, would be

sufficient to be the direct cause of the injury sustained by plaintiffs or it directly contributed

to cause the injuries." Id. at 11.

       Furthermore, in Britton, 552 S.W.3d at 142, the court held that when a driver

"negligen[tly] driv[es] his vehicle at a speed in excess of the speed limit and running a red

light does not preclude Plaintiff from stating a claim under the dangerous condition

exception to sovereign immunity." A widow alleged the city's bus stop lacked: a sufficient

area to sit or stand, shelter or other protective structure, and proper warning to pedestrians

about passing vehicles. Id. at 143. In distinguishing the case from Dierker, the court wrote

that "it is not unexpected or freakish that a driver might disregard traffic laws and strike a

pedestrian[.]" Id. at 142.



                                               11
         The City attempts to distinguish the instant case from Linton and Britton because

there was "no intervening criminal act by [a] third party" in either case. However, this

assertion is refuted by the facts in both cases. In Linton, Hertlein was driving while

intoxicated,7 and in Britton, the driver exceeded the speed limit8 and ran a red light.9

Similarly, the instant case is distinguishable from Dierker because the criminal act of

throwing a chunk of concrete from an overpass goes far beyond a "slight deviation" from

the overpass's intended purpose.

         In the instant case, Lucas-Cox used the road for its intended purpose only slightly

deviating from the roadway, and it is not unexpected or freakish that a driver might

disregard traffic laws. There was no evidence in the summary judgment record that the

fact Lucas-Cox was driving a stolen car contributed in any way to cause the collision and

resulting injuries, and there was no evidence in the summary judgment record that Lucas-

Cox's impairment from drugs or alcohol contributed to the cause of the collision.

Furthermore, as explained previously, there was evidence that a vehicle traveling at a legal

speed who left the roadway in a similar fashion could have caused a similar collision and

experienced similar injuries.               Therefore, the extent of Appellants' injuries are not

surprising, unexpected, or freakish. See Britton, 552 S.W.3d at 142. The City failed to


         7
            At the time of the accident, "[a] person commit[ted] the crime of involuntary manslaughter if he . .
.[w]hile in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal
negligence to cause the death of any person." Section 565.024.1(2), RSMo 1986. "'Intoxicated condition' mean[t]
under the influence of alcohol, a controlled substance, or drug, or any combination thereof." Section 565.002(4),
RSMo 1986.
          8
            A person driving in excess of the posted speed limit by less than twenty miles per hours is guilty of a class
C misdemeanor. Section 304.010, RSMo 2000, as updated through January 21, 2011.
          9
            "The driver of any vehicle shall obey the instructions of any official traffic-control device . . . [and]
violation of this section is a class C misdemeanor." Section 304.271, RSMo 2000, as updated through January 21,
2011.

                                                          12
establish, as a matter of law on the undisputed facts, Lucas-Cox's actions, criminal or

otherwise, constituted an intervening and superseding cause precluding Plaintiff from

stating a claim under the dangerous condition exception to sovereign immunity pursuant

to Dierker.

                                       Conclusion

       There are genuine issues of material fact as to whether the lack of an edge line

combined with the nine-inch drop-off caused or contributed to cause the collision and

Appellants' injuries, and Lucas-Cox's actions are not sufficient to preclude a finding of

proximate cause as a matter of law. Therefore, the circuit court's judgment is reversed, and

the case is remanded for further proceedings consistent with this opinion.



                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                            13
