Synopsis: Sovereign immunity law in Missouri has developed as a patchwork quilt of actions and reactions by the Supreme Court and the General Assembly. This article concisely summarizes this development and presents a reference diagram to aid in understanding the law as it currently exists.
I. Introduction
A cursory inspection of § 537.600, RSMo 1994, cannot help but leave the reader with the unmistakable impression that something very strange lies in the history of the doctrine of sovereign immunity in Missouri. The first sentence of the first subsection keys the reimposition of sovereign immunity to a specific date, September 12, 1977; the second subsection emphasizes that the limited exceptions to immunity established in subsection 1 are absolute and apply irrespective of insurance coverage; the third subsection expressly defines multi-state compact agencies as public entities; the fourth subsection expresses the General Assembly's intent concerning the absence of immunity for proprietary functions of multi-state compact agencies; and the fifth subsection proposes to nullify any court decision after August 13, 1978, which is contrary to subsection 4.
Each of the subsections of § 537.600 have one thing in common -- they are each a legislative reaction to a Supreme Court of Missouri decision with which the General Assembly disagreed. Indeed the study of the checkmate fashion in which the law of sovereign immunity has developed in Missouri is an intriguing separation of powers saga in itself. Unfortunately, the piecemeal fashion in which this area of the law has developed (and is developing) obscures understanding and analysis of the law at any given time.
The purposes of this article are twofold: first, to recount the recent history of the doctrine of sovereign immunity in Missouri starting with Judge Finch's path-breaking dissent in O'Dell v. School Dist. of Independence;1 second, to graphically explain the state of the law as it exists today and as it would have existed had Governor Ashcroft not vetoed the General Assembly's attempt to nullify Wollard v. City of Kansas City.2 The historical background and rationality of the doctrine of sovereign immunity itself are left for another day.
II. Recent History of Sovereign Immunity in Missouri
A. O'Dell v. School Dist. of Independence -- March 10, 1975
Modern sovereign immunity law in Missouri traces its roots to Judge Finch's scholarly dissent in O'Dell v. School Dist. of Independence. The case involved a suit by a high school student for injuries he sustained when a physical education coach applied an illegal wrestling hold on the student. The trial court dismissed the student's case against the school district and the Supreme Court of Missouri, by a vote of four (Donnelly, Holman, Morgan, and Henley) to three (Finch, Seiler and Bardgett), affirmed.
Nothing in the holding of the majority is particularly noteworthy. School districts had routinely been held to be public entities fully protected from suit by the doctrine of sovereign immunity. The significance of O'Dell is the strong argument made by Judge Finch, joined by two other judges, for the complete abolition of sovereign immunity. Judge Finch systematically analyzed each of six justifications for the doctrine and found each of them wanting. Interestingly, those judges who voted in the majority did not disagree with Judge Finch's criticisms of sovereign immunity. They, however, viewed such a radical change in the law as best left to the legislative branch, "which more directly reflects the wishes of the citizens of this state."3 Thus, the abolition of sovereign immunity was left for another day.
B. Jones v. State Highway Comm'n4 -- September 12, 1977
The judicial abrogation of the doctrine of sovereign immunity came only two years after the O'Dell decision in the case of Jones v. State Highway Comm'n. The departure from the holding in O'Dell only two years later is purely a function of a change in the composition of the Court. In the interim between O'Dell and Jones, Judge Holman (voting with the majority in O'Dell) left the Court and Judge Rendlen became the swing vote. Judge Seiler's majority opinion in Jones added nothing new to the analysis. It simply incorporated the arguments made by Judge Finch in his O'Dell dissent. The abrogation of sovereign immunity was prospective "as to all claims arising on or after August 15, 1978, except for the cases decided today as to which abrogation applies here and now."5 The prospective abrogation of the doctrine was deemed necessary to enable the public entities a transition period and to permit the legislature to consider the issue.
C. L. 1978, H.B. No. 1650 §§ 1-9
And consider the issue the legislature did. In the general session immediately following the Jones decision, the General Assembly "overruled" the Supreme Court and reimposed sovereign immunity as it "existed at common law in this state prior to September 12, 1977 . . ." [i.e. prior to Jones] "except to the extent waived. . . ."6 In the same legislation the General Assembly provided for two express, albeit limited, waivers: (1) for injuries directly resulting from the negligent operation of motor vehicles; and (2) for injuries caused by the dangerous condition of a public entity's property. The waivers were limited by the language of § 537.610.2, which provides:
The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed one million dollars for all claims arising out of a single accident or occurrence and shall not exceed one hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, RSMo.
Thus, the waivers established in § 537.600.1 were limited both in scope and size.
D. Bartley v. Special Sch. Dist. of St. Louis County7 -- April 26, 1983
The next chapter in the sovereign immunity saga was written in Bartley v. Special Sch. Dist. of St. Louis County. The case involved a lawsuit by a student against a bus driver and the school district for injuries sustained by the student when another student, allegedly possessing dangerous propensities, was allowed on the bus and thereafter assaulted the plaintiff. The trial court dismissed the plaintiff's lawsuit on the basis that the school district was protected by sovereign immunity. The plaintiff and amicus curiae argued that the school district waived its sovereign immunity by purchasing liability insurance -- i.e., § 537.610.1 creates a third waiver provision. A highly divided Court (the vote was again 4 to 3) not only rejected this argument but went considerably further. In what must be regarded as obiter dictum in that neither of the express exceptions to sovereign immunity were before the Court and the public entity had purchased liability insurance, the Court held that "the General Assembly's enactment only waived sovereign immunity as provided in subsections (1) and (2) of § 537.600 and then only to the extent the public entity has purchased liability insurance for such purposes."8 The vigorous dissent lamented the unreasonableness of the majority's position:
Approval of that result means that any public entity can set at naught the express waiver of sovereign immunity under Section 537.600, by the simple expedient of refusing to purchase insurance. I cannot believe that the General Assembly intended such an unreasonable result or contemplated that the Sovereign Immunity Act would result in such a "local option."9
Nonetheless, dictum or not, the law subsequent to Bartley appeared to be that the two statutory exceptions to sovereign immunity were not exceptions at all unless each public entity had deemed them to be so through the purchase of liability insurance.
E. L. 1985, S.B. No. 323, § A
Again the legislature reacted. Subsection 2 of § 537.600, effective September 28, 1985, was passed for the specific purpose of nullifying Bartley. The provision reads as follows:
The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.
The reference to liability insurance in the statute is clearly explained as a reaction to Bartley. The reference to governmental or proprietary capacity is not as easily explained. The pre-Jones law was that municipal corporations, being both governmental and corporate in character, were only immune while functioning in their governmental capacities and then, by virtue of § 71.185, only to the extent they were not insured. Therefore, the passage of § 537.600 with its limited waivers of sovereign immunity had no effect on the liability of municipal corporations acting in their proprietary capacities -- they had no immunity to begin with. Did the legislature intend to change this result in any respect with the passage of subsection 2? The answer to this question must await further developments.
F. State ex rel. Trimble v. Ryan10 -- February 17, 1988
Trimble involved the liability of Bi-State Development Agency for the negligence of one its bus drivers. The trial court had held that Bi-State was a public entity within the meaning of § 537.600 and, therefore, immune from tort liability except to the extent of the statutory exceptions. Since Bi-State's liability had arisen from the negligent operation of a motor vehicle the court permitted the plaintiff's claim to go forward but restricted Bi-State's liability to $100,000. The Supreme Court, which had initially granted a provisional writ of prohibition, quashed the provisional rule. The Court based its ruling on the following analysis: "the nature and history of Bi-State leads to the inescapable conclusion that it is a public entity with substantial governmental authority and power, and that, like special road and sewer districts, it is not a municipality."11 The conclusion that Bi-State was not a municipality was significant, so it seemed, because municipalities did not have sovereign immunity for the operation of ground transportation systems -- this being a proprietary function. Accordingly, the Court concluded that Bi-State's liability was limited by the provisions of § 537.610.2.
G. L. 1989, H.B. No. 161, § A -- Effective July 14, 1989
The General Assembly reacted to Trimble by adding subsections 3-5 to § 537.600. Subsection 3 provided for an express waiver of sovereign immunity, if any ever existed, for the proprietary functions of multi-state compact agencies (i.e. Bi-State). Subsection 4 was a legislative declaration that, prior to Jones, multi-state compact agencies were never immune from suit for injuries caused by their employees while performing proprietary functions. Finally, subsection 5 declared that Trimble "erroneously interprets the law and the public policy of this state."12 It is obvious that the General Assembly did not agree with the Supreme Court that Bi-State's liability should be limited to $100,000 for an injury arising out of the operation of a motor vehicle.
H. Wollard v. City of Kansas City13 -- April 21, 1992
Wollard involved a suit against Kansas City for an injury sustained by the plaintiff resulting from the dangerous condition of the city's property. It was conceded that the plaintiff was injured as a result of activities of the city undertaken in its proprietary capacity. The issue was whether the statutory liability cap established in § 537.610.2 applied to Mrs. Wollard's claim. The plaintiff argued that municipalities were never immune for activities undertaken in their proprietary capacities and, therefore, the exceptions to immunity established in subsection 1 of § 537.600 had no application to such claims. The city argued that the passage of subsection 2 in 1985 eliminated the governmental/proprietary dichotomy for injuries caused by the negligent operation of motor vehicles and for injuries caused by the dangerous condition of a public entity's property.
The Supreme Court accepted the city's position based primarily on the literal language of the 1985 amendment. The Court reasoned that the phrase "whether or not the public entity was functioning in a governmental or proprietary capacity" was intended by the legislature to bring all motor vehicle and dangerous property cases within the provisions of §§ 537.600, et seq., regardless of how the proprietary capacity cases may have been treated previously at common law. Any other construction, the Court reasoned, would render the relevant phrase of the legislation meaningless.
Thus, after Wollard, any claim for damages caused by the dangerous condition of a municipality's property or by the negligent operation of a municipal vehicle is subject to the $100,000 damage cap. The cap would not apply, however, to injuries caused in other ways arising out of the municipality's proprietary functions. The Wollard Court did not address the apparent inconsistency between its decision concerning municipalities and the General Assembly's express contrary intent concerning multi-state compact agencies.
I. H.S.H.C.S.S.S. #2 S.C.S.S.Bs 504, 548 and 538
Within weeks of the Wollard decision, the Missouri General Assembly passed H.S.H.C.S.S.S. #2 S.C.S.S.Bs 504, 548 and 538, which purported to amend § 537.600 by adding subsection 6 as follows:
Pursuant to the prerogative of the general assembly to declare the public policy of the state in matters concerning liability of the state in matters concerning liability in tort, the general assembly declares that prior to September 12, 1977, there was no governmental or sovereign immunity for, and no limitation on causes of action arising out of, proprietary functions of municipalities or municipal corporations, and that policy is hereby reaffirmed and declared to remain in effect. Such was the original legislative intent of subsection 1 of section 537.600 and any decision subsequent to August 13, 1978, holding to the contrary [i.e. Wollard] erroneously interprets the law and public policy of this state.14
Subsection 6, however, was not enacted into law because Governor Ashcroft vetoed the measure on July 9, 1992.15 Nevertheless, it is difficult to argue that the General Assembly's intent was that attributed to it by the Supreme Court in Wollard. No developments have occurred, either legislatively or judicially, since 1992 that alter sovereign immunity analysis.
III. Missouri Sovereign Immunity Law Summarized
Figure 1 is a flow chart which characterizes current Missouri sovereign immunity law for all public entities except multi-state compact agencies. Figure 1 is constructed under the assumption that Wollard is controlling law. The Supreme Court has yet to revisit the Wollard issue in light of the General Assembly's articulation of its intent in the 1992 amendments. The chart is not only a convenient tool to explain the current state of the law but is also an excellent quick reference source. The following discussion moves from decision box to decision box starting from the "Public Entity" entry box. The answers to the consecutive decision box questions lead to one of the four conclusion boxes.
A. Is the Defendant a Public Entity?
The initial question to ask in sovereign immunity analysis is whether the defendant asserting sovereign immunity is, in fact, an entity of the sovereign. Although the term "public entity" was first introduced to the lexicon of Missouri sovereign immunity jurisprudence by the legislature in § 537.600,16 the term is used herein as a shorthand to capture the concept of sovereignty. The question may seem trivial if one's focus is restricted to the state or a county or a city as a defendant. However, a vast number of hybrid agencies have presented genuine questions as to their "sovereign-ness." The Supreme Court of Missouri's thorough analysis of this issue in Stacy v. Truman Medical Center17 is essential reading if there is any question concerning whether a defendant is a public entity. If the defendant is not deemed to be a public entity, then, of course, there can be no sovereign immunity.
B. Does a Statutory Exception Apply?
If the defendant is, in fact, a public entity, the next question to consider is whether the injuries were caused by the dangerous condition of the public entity's property or by the negligent operation of a motor vehicle by an employee of the public entity within the course and scope of employment. The dangerous property exception applies to both real and personal property of the public entity.18
If the injury was caused by one of the two statutory exceptions, then the public entity is potentially liable up to the statutory maximum of $100,000 -- i.e., liability is capped. This result follows directly from the Wollard decision. It does not matter if the public entity is a municipality, or whether the injury resulted from the entity carrying out a proprietary function or whether the public entity has insurance. Immunity is waived up to the statutory cap -- end of story.
C. Is the Public Entity a Municipality?
If a statutory exception is not applicable, the next question to consider is whether the public entity is a municipality or municipal corporation. If the entity is a municipality and the injury resulted from the municipality carrying out one of its proprietary functions, then no immunity attaches. This result is represented as a "Yes" exit out of the "Municipal Corp." decision box and a "No" exit out of the "Gov't Function" decision box. The conclusion box at the terminus of this path is "No Immunity."
D. Does the Public Entity Have Liability Insurance?
If the public entity is not a municipality (a "No" exit out of the "Municipal Corp." box) or if the public entity is a municipality carrying on a governmental function (a "Yes" exit out of the "Gov't Function" box), the next question to consider is whether the entity is covered by liability insurance for the incident. If there is no such insurance, the entity is fully protected by the doctrine of sovereign immunity. If liability insurance exists, the entity is deemed to have waived its sovereign immunity to the extent of the insurance coverage.19
Two statutory provisions apply to the insurance/waiver question. Subsection 1 of § 537.610 authorizes the state and "each political subdivision of this state" to purchase liability insurance for tort up to a maximum of $100,000 per person and $1,000,000 per occurrence. The provision also prohibits the state and its political subdivisions from settling any claim for more than the maximum policy limits established in the statute. Finally, the statute expressly waives sovereign immunity up to the liability limits.
The second statutory section, § 71.185, applies only to municipalities. The section authorizes any municipality to purchase liability insurance to cover damages caused by the municipality or its employees while engaged in governmental functions and waives sovereign immunity "to the extent of the insurance so carried." The question of whether § 537.610.1 prohibits a municipality from purchasing insurance with limits in excess of $100,000/1,000,000 has not been decided.
IV. Alternative Sovereign Immunity Analysis: Multi-state Compact Agencies and Municipalities but for Wollard
Figure 2 presents an alternative sovereign immunity analysis which would have prevailed had Governor Ashcroft not vetoed H.S.H.C.S.S.S. #2 S.C.S.S.Bs 504, 548 and 538. The chart applies as well to multi-state compact agencies if the phrase "Multi-State Agency" is substituted for "Municipal Corp." in the chart. The fundamental difference between figures 1 and 2 is that, in figure 2, municipalities have no immunity for damages caused by their employees while carrying out proprietary functions -- period. It does not matter that the injury resulted from the negligent operation of a motor vehicle or from the dangerous condition of property. If the municipality was functioning in its proprietary capacity, it is held liable just as any other corporation. This, of course, was the law of Missouri prior to Jones and would have been the law if the legislature's attempt to nullify Wollard had been successful.
V. Conclusion
Missouri's sovereign immunity law has developed over the past 20 years more as a sparring match between the General Assembly and the Supreme Court than as rational public policy. This type of legal development has led to a statute that is difficult to comprehend and cases intrepreting the statute which are not easily reconciled. Hopefully, the diagrams contained in this article will provide a useful tool to practitioners faced with sovereign immunity questions in the future.
Endnotes
1 521 S.W.2d 403 (Mo. banc 1975).
2 831 S.W.2d 200 (Mo. banc 1992).
3 Morgan, J. (concurring), 521 S.W.2d at 409.
4 557 S.W.2d 225 (Mo. banc 1977).
5 557 S.W.2d at 231.
6 Section 537.600.1, RSMo 1994.
7 649 S.W.2d 864 (Mo. banc 1983).
8 649 S.W.2d at 868 (emphasis supplied).
9 649 S.W.2d at 871.
10 745 S.W.2d 672 (Mo. banc 1988).
11 745 S.W.2d at 674.
12 Trimble is not mentioned by name -- only by date.
13 831 S.W.2d 200 (Mo. banc 1992).
14 See Dorlon v. City of Springfield, 843 S.W.2d 934, 939 n.6 (Mo. App. S.D. 1992).
15 Id. at 940.
16 State ex rel. Reg'l Justice Info. Serv. Comm'n v. Saitz, 798 S.W.2d 705, 706 (Mo. banc 1990).
17 836 S.W.2d 911 (Mo. banc 1992).
18 Warren v. State, 939 S.W.2d 950, 955 (Mo. App. W.D. 1997) (prison table saw missing a safety guard).
19 State ex rel. Bd. of Trustees of the City of North Kansas City Memorial Hosp. v. Russell, 843 S.W.2d 353, 360 (Mo. banc 1992).
Dr. Burt is a shareholder in The Strong Law Firm, P.C., in Springfield, and adjunct professor of economics at Drury College. He received his Ph.D. in economics and J.D. from the University of Missouri-Columbia.
1998, James A. Burt