Monthly Archives: September 2013

Motion to Dismiss granted to Missouri Highways and Transportation Commission

PS Partners/Associate: J. Phillip Bryant, Partner

We represented: Missouri Highways and Transportation Commission (MHTC)

Venue: Circuit Court of the City of St. Louis, Missouri


Personal injury lawsuit in which Plaintiffs Yvonne Marshall, Ricky Tyberendt, and Steven Chott claim they were injured on February 23, 2011 when they were involved in a 37 car pileup on eastbound Interstate 64 near the Market Street exit. According to their Petitions and the police report from the incident, a freezing rain fell in the early morning hours of February 23, 2011 covering the Vandeventer Ave. bridge with ice from the freezing rain. It is alleged that Robert Luzynski was operating a truck in the course of his employment with United Parcel Service, Inc. (“UPS”) when he lost control of his truck, blocking the eastbound lanes of I-64. This set off a chain reaction with numerous other vehicles colliding into the UPS truck as well as into those vehicles operated by individual motorists already involved in the collision.

After much discovery occurred, Ricky Tyberendt, Steven Chott and Yvonne Marshall joined MHTC as a defendant in their lawsuits alleging that a dangerous condition existed because the road allegedly lacked proper skid resistance and/or was unreasonably slick. They further claimed that MHTC had actual or constructive notice of the dangerous condition caused by the freezing rain, which allegedly occurred hours prior to the accidents, but that MHTC failed to take measures to protect against this condition. Specifically, these plaintiffs claimed that MHTC failed to obtain an accurate or reliable weather forecast, failed to treat the roads with de-icing agents, and failed to notify traffic of the slick conditions.

We moved to dismiss MHTC on the argument that MHTC is protected by sovereign immunity on the plaintiffs’ claims against it. Specifically, we argued that plaintiffs’ allegation that MHTC failed to obtain a weather forecast does not trigger a waiver of sovereign immunity. Nor did plaintiffs’ complaint that MHTC failed to de-ice the road. Similarly, the alleged failure to warn motorists of slick road conditions was insufficient to trigger a waiver of sovereign immunity. Plaintiffs countered that the alleged failures by MHTC arose out of a condition of the property, thereby triggering a waiver of sovereign immunity. Judge Dierker agreed that MHTC is under a duty to maintain the roadway so that it is safe for drivers. However, the duty to remedy an icy condition depends upon pleading and proof that the condition was not common to the area in general at the time of the injury and that, considering the scope of the roadways under the defendant’s control, there was ample advance notice of the particular condition to permit the defendant to remedy it. Judge Dierker noted that the pleadings are bereft of allegations showing that the hazard on the roadway was different than the hazard posed by freezing rain anywhere else in the area. The allegation that MHTC had notice of freezing rain in the vicinity of the accident site some hours before the accident is patently insufficient to afford MHTC time to protect against the specific hazard existing at the site of the accident.

Past results afford no guarantee of future results.  Every case is different and must be judged on its own merits.

Local Fire Protection District Prevails on Summary Judgment

The Monarch Fire Protection District (“The District”), and two members of its Board of Directors (“Directors”), recently prevailed on a Motion for Summary Judgment prepared and filed by Pitzer Snodgrass. District Court Judge Rodney W.  Sippel, issued an Memorandum Order on August 6, 2013, dismissing the pending Complaint, filed by three former chief officers of the District.

 Basic Facts:

The Plaintiffs were terminated in the wake a sexual harassment lawsuit which resulted in a verdict against the District. The Plaintiffs were the top ranking officers of the District at the time that the alleged acts of discrimination and harassment took place. The Board of Directors of the Monarch Fire Protection District voted to terminate the three Plaintiffs, and a fourth officer who was not a party to the instant lawsuit, when the jury verdict against the District in the sexual harassment suit was affirmed in the Missouri Court of Appeals. The Plaintiffs were not members of the local union bargaining unit and did not have a written employment contract with the District. All three Plaintiffs testified that they did not request a pre or post termination hearing from the District or the Directors.

 Legal Allegations:

The Plaintiffs filed their lawsuit, naming as defendants the District and the two Directors, individually, who voted to terminate their employment. The Plaintiffs did not name the Board of Directors, as a whole, or a third board member who did not vote in favor of terminating the Plaintiffs. The Plaintiffs’ Complaint alleged they were terminated in violation of their procedural and substantive due process rights. Namely, the Plaintiffs alleged they had a constitutionally protected property interest in their continued employment at the District.

 Finding of the Trial Judge:

In Judge Sippel’s thorough opinion,  he held the District was protected by the doctrine of sovereign immunity, which shields political subdivisions from liability absent a statutory waiver. Further, Judge Sippel found the named Directors were entitled to official  immunity, because the act of terminating an employee is discretionary in nature, and is shielded by qualified immunity, because the Directors had no objectively reasonable basis to know the termination of Plaintiffs would violate a constitutional right.   Moreover, Judge Sippel found that under Missouri law, Plaintiffs failed to establish the existence of a constitutionally protected property interest in their continued employment. Rather, as Defendants successfully argued, the Plaintiffs were “at will” employees and could be fired for any reason, not illegal.

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