DAKOTA J. LACKEY,                        )
                                         )
                   Appellant,            )
                                         )
      v.                                 )   No. SD33918
                                         )
IBERIA R-V SCHOOL DISTRICT,              )   FILED: March 2, 2016
and JASON MORRIS,                        )
                                         )
                   Respondents.          )

           APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

                    Honorable Kenneth Michael Hayden, Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      After injuring his wrist in school gym class, Dakota Lackey sued teacher Jason

Morris and the school district (“District”). The trial court granted summary

judgment to District based on sovereign immunity, and to Morris under the Paul D.

Coverdell Teacher Protection Act of 2001, 20 U.S.C. §§ 6731 et seq (2006).

      Lackey appeals. Our review is de novo using the same criteria the trial court

should have employed without deference to that court’s decision. ITT Comm. Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
       We affirm as to District because Lackey cannot prove a dangerous-condition

exception to sovereign immunity. We reverse as to Morris because the summary

judgment record fails to establish his Coverdell immunity.

                            Injury and Circumstances 1

       Lackey suffered his injury as an eighth-grader during an organized “long base”

game in Morris’s gym class. Long base is similar to kickball. A pitcher in the center

circle rolls a ball. A kicker kicks it and runs toward either of two “bases” at opposite

ends of the basketball court between the baseline and padded gym wall. No physical

bases were placed on the gym floor; painted lines on the floor marked the “base”

areas. The only game equipment was the ball.

       Lackey was injured as he ran to a base, then into the padded wall which he

struck with his left hand, resulting in a wrist fracture.

                    Point I – District’s Sovereign Immunity

       To streamline analysis of this point, we first note what is not at issue:

          • District, a public entity, enjoys sovereign immunity except as
            waived. Patterson v. Meramec Valley R-III School Dist.,
            864 S.W.2d 14, 15 (Mo.App. 1993).

          • Lackey’s waiver theory is that District’s “property was in
            dangerous condition at the time of the injury [and] that the
            injury directly resulted from the dangerous condition,” i.e., the
            “dangerous condition” exception to sovereign immunity under
            § 537.600.1(2).



1  Our review is confined to the Rule 74.04(c) summary judgment record,
Holzhausen v. Bi-State Dev. Agency, 414 S.W.3d 488, 493-94 (Mo.App. 2013),
viewed favorably to Lackey and giving him the benefit of all reasonable inferences.
ITT, 854 S.W.2d at 376. We summarize the facts accordingly. Missouri statutory
citations are to RSMo 2000 and rule references to Missouri Court Rules (2013).

                                            2
          • Lackey must plead and prove such waiver as part of his case in
            chief. Maune v. City of Rolla, 203 S.W.3d 802, 804 (Mo.App.
            2006).

          • District was entitled to summary judgment if Lackey, having had
            adequate time for discovery, could not show that he could get to
            the jury on this element of his claim. ITT, 854 S.W.2d at 381.

      Lackey argues that Morris created a dangerous condition by designating floor

areas near walls as “bases,” forcing students to stop abruptly after running the length

of the gym, and his “broken arm was foreseeable in that one way … for a student to

stop his body before striking the wall is to extend his arm.”

      The trial court ruled correctly. Lackey’s theory and supporting evidence will

not get him to a jury on a “dangerous condition” under developed case law.

      Dangerous public property within § 537.600.1(2)’s narrow exception “must

exhibit a defect that is physical in nature.” Boever v. Special Sch. Dist. of St.

Louis County, 296 S.W.3d 487, 493 (Mo.App. 2009). These include (1) physical

defects in public property or its condition, and (2) “physical deficiencies created by

the placement of objects on the public property.” Id. (citing Alexander v. State,

756 S.W.2d 539, 541-42 (Mo. banc 1988)).

      Lackey’s theory is the latter, primarily citing Alexander and Cain v.

Missouri Highways & Transp. Comm’n, 239 S.W.3d 590 (Mo. banc 2007).

Both cases are distinguishable:

          • Plaintiff Cain was hit by a falling tree cut down by public
            employees. The tree had no physical defect before cutting began,
            but a jury might “conclude that the manner in which the
            [worker] cut the tree, prior to it falling, created a dangerous
            condition within the meaning of the statute.” 239 S.W.3d at 594
            (our emphasis).


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          • Plaintiff Alexander was injured because someone laid a folding
            room partition at the foot of a ladder he was using to fix an
            elevator. Descending the ladder, he stepped on the partition,
            which unfolded, causing him to fall. Our supreme court stated
            that “property” in § 537.600.1(2)’s context included personal
            property, and that leaning the partition against the ladder
            created “a physical deficiency” and “dangerous condition.’” 756
            S.W.2d at 541-42. The ladder and partition were not intrinsically
            defective or dangerous; “the dangerous condition [was] created
            by the positioning of various items of property.” Id. at 542 (our
            emphasis).

       In Alexander, non-defective items not intrinsically dangerous were moved

and positioned and only thereby made “dangerous” per § 537.600.1(2). In Cain, a

tree not defective or intrinsically dangerous was chain-sawed and only thereby made

“dangerous” per § 537.600.1(2). Here, a gym floor and walls neither defective nor

intrinsically dangerous were not altered or changed and thus were not “dangerous”

per § 537.600.1(2) under any case cited to or found by us. 2

       Lackey alleges that “Morris organized a game of ‘long base’ in the gymnasium

… [and] created or otherwise established the location of the ‘base’ and its proximity

to the wall,” resulting in “a dangerous and defective condition in that the ‘base’ was

located in a position relative to the gymnasium’s wall which made it improbable, if

not impossible, for a ‘batter’ such as Lackey to come to a complete stop after crossing

the   line,   but   before   striking   the   wall[.]”   Stripped   of   immunity-targeted

2 Cases factually nearer to ours, all post-Alexander, include Necker v. City of
Bridgeton, 938 S.W.2d 651 (Mo.App. 1997) (rejecting Alexander-based theory
that dangerous condition was created by locating non-defective balance beam in
hallway); Goben v. Sch. Dist. of St. Joseph, 848 S.W.2d 20 (Mo.App. 1992)
(rejecting Alexander-based theory that dangerous condition was created by gym
teacher setting hurdles on concrete floor and urging overweight student to jump over
them); Stevenson v. City of St. Louis Sch. Dist., 820 S.W.2d 609 (Mo.App.
1991) (child sliding down school stairway bannister; not a dangerous condition).


                                              4
ornamentation, this is a complaint that Morris picked the wrong spot on a floor. We

borrow, once again, an observation from our western district:

             What appellant seeks is to engraft upon the term “dangerous
          condition” any and all conditions or events which, if foreseeable,
          cause or produce injury arising out of or in conjunction with the
          property or employees of a public entity. If appellant’s argument
          were carried to its logical conclusion, § 537.600(2) [now
          § 537.600.1(2)] would become a nullity.

Johnson v. City of Springfield, 817 S.W.2d 611, 615 (Mo.App. 1991) (quoting

Twente v. Ellis Fischel State Cancer Hosp., 665 S.W.2d 2, 12 (Mo.App.

1983)).

       “[W]e strictly construe statutory provisions that waive sovereign immunity,”

id., and would have to do otherwise to accept Lackey’s view. Point denied.

                   Point II – Morris’s Coverdell Act Defense

       To explain why this summary judgment fails, we start with two oft-repeated

principles recognized by all three districts of this court:

          1. A trial court grants or denies summary judgment based on facts
             established by the summary judgment motion and responses
             thereto; “our review is confined to the same facts and does not
             extend to the entire record before the trial court.” 3

          2. Facts come into a summary judgment record only per Rule
             74.04(c)(1) and (2), “that is, in the form of a pleading containing
             separately numbered paragraphs and a response addressed to
             those numbered paragraphs.” 4


3 Metro. Nat’l Bank v. Commonwealth Land Title Ins. Co., 456 S.W.3d 61,
67 (Mo.App. 2015) (quoting Holzhausen, 414 S.W.3d at 494); see also Robinson
v. Missouri State Highway & Transp. Comm’n, 24 S.W.3d 67, 80 n.5
(Mo.App. 2000).
4 Cross v. Drury Inns, Inc., 32 S.W.3d 632, 636 (Mo.App. 2000); see also

Metro. Natl. Bank, 456 S.W.3d at 67; Holzhausen, 414 S.W.3d at 493;
Shellabarger v. Shellabarger, 317 S.W.3d 77, 84 (Mo.App. 2010); Space
                                            5
          Since Morris won summary judgment on Coverdell immunity, an affirmative

defense, we can affirm that ruling only if the summary judgment record – those

“separately numbered paragraphs” and responses per Rule 74.04(c) – establishes

every element of Coverdell immunity. See Shellabarger, 317 S.W.3d at 81.

          The Coverdell Act, as relevant here, states that no teacher “shall be liable for

harm caused by an act or omission of the teacher on behalf of the school if --

             (1) the teacher was acting within the scope of the teacher’s
                 employment or responsibilities to a school or governmental
                 entity; [and]
             (2) the actions of the teacher were carried out in conformity with
                 Federal, State, and local laws (including rules and regulations) in
                 furtherance of efforts to control, discipline, expel, or suspend a
                 student or maintain order or control in the classroom or school;
                 [and]
             (3) if appropriate or required, the teacher was properly licensed,
                 certified, or authorized by the appropriate authorities for the
                 activities or practice involved in the State in which the harm
                 occurred, where the activities were or practice was undertaken
                 within the scope of the teacher’s responsibilities; [and]
             (4) the harm was not caused by willful or criminal misconduct, gross
                 negligence, reckless misconduct, or a conscious, flagrant
                 indifference to the rights or safety of the individual harmed by
                 the teacher[.]”

20 U.S.C. § 6736(a). No such element was established by this summary judgment

record, i.e., the “separately numbered paragraphs” and responses per Rule 74.04(c).

Morris did not even assert Rule 74.04(c)(1) paragraphs as to most of these. Morris’s

brief includes two pages titled “Uncontroverted Facts” and would have us affirm

based on such material, but links none of those “facts” to the Rule 74.04(c) record

either.

Planners Architects, Inc. v. Frontier Town-Missouri, Inc., 107 S.W.3d 398,
404 (Mo.App. 2003); Sloss v. Gerstner, 98 S.W.3d 893, 898 (Mo.App. 2003).

                                              6
      Morris has “expanded [his Coverdell] argument with additional facts not

included in the record pursuant to Rule 74.04(c)(1) and (2).” Shellabarger, 317

S.W.3d at 84. “The facts properly in the record are wholly deficient to support a

claim of [Coverdell immunity].” Id. “As such, [Morris is] clearly not entitled to

summary judgment based on this affirmative defense.” Id.

      For more than 20 years, Rule 74.04 has required these numbered paragraphs

and responses for “specificity regarding the contentions raised in motions for

summary judgment.” Osage Water Co. v. City of Osage Beach, 58 S.W.3d 35,

44 (Mo.App. 2001) (attributing this 1994 rule change to our supreme court’s desire

that opposing parties and courts be clearly advised of the claimed basis for summary

judgment). Thus “Rule 74.04(c) dictates a specific format for a motion and response

in order to clarify the areas of dispute and eliminate the need for the trial or

appellate court to sift through the record to identify factual disputes.” Cross, 32

S.W.3d at 636. “All facts must come into the summary judgment record in the

manner required by Rule 74.04(c)(1) and (2), that is, in the form of a pleading

containing separately numbered paragraphs and a response addressed to those

numbered paragraphs.” Id.

      Despite this longstanding mandate and case law warnings we have cited, the

error seen in this case occurs too frequently, even when the trial judge and lawyers

are, as here, excellent. Movants often cite primarily or exclusively to affidavits,

exhibits, and discovery – material with a critical supporting role in our numbered-

paragraphs-and-responses framework. Courts cannot “sift through a voluminous

record, separating fact from conclusion, admissions from disputes, the material from

                                         7
the immaterial, in an attempt to determine the basis for the motion” without

impermissibly acting as advocates. Miller v. Ernst & Young, 892 S.W.2d 387,

389 (Mo.App. 1995). Rule 74.04(c) aims at “benefiting trial and appellate courts to

expedite the disposition of cases[;] noncompliance with these requirements is not a

matter subject to waiver by a party.” Miller, 892 S.W.2d at 389.

      The lesson bears repeating: summary judgment rarely if ever lies, or can

withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c)

numbered paragraphs and responses alone.

      We grant Point II and reverse Morris’s Coverdell-based summary judgment. 5

                                   Conclusion

      We affirm the judgment as to Respondent District. As to Respondent Morris,

we reverse and remand for further proceedings.


DANIEL E. SCOTT, P. J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS




5 This also moots Lackey’s third and final point, which is directed at Coverdell
immunity as well.
   We decline Morris’s invitation to affirm his summary judgment on an alternative
ground, either official immunity or the public duty doctrine. He fails to persuade us
that, given current law and this Rule 74.04(c) record, the trial court was wrong to
find twice (on January 30, 2013, and again on May 11, 2015) that factual disputes
precluded Morris’s claims for summary judgment on those two theories.

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