City Immune from Construction Lawsuit after Pedestrian’s Fall off Retaining Wall

in Columns/Law
James R. Keller

Missouri’s Western District Court of Appeals recently dismissed a pedestrian’s lawsuit against the City of Lee’s Summit, MO for serious injuries after his fall in 2017 from an unguarded retaining wall. The court held the city was immune from the lawsuit, even if its actions or inactions were negligent.

The case is State ex rel. City of Lee’s Summit v. Garrett, 568 S.W.3d 515 (Mo. Ct. App. 2019), decided February 13.

The city did not own or operate the property where the retaining wall was located. But it did issue the building permit for the retaining wall.

The plaintiff, Kurt Pycior, claimed that the city negligently inspected the wall or did not inspect it at all.

He also sued various corporations that designed and/or built in 2009 and 2010 the retaining wall and parking lot below the wall. The appellate court ruled Pycior’s lawsuit will continue in Circuit Court against them and potentially will be scheduled for an upcoming trial.

The wall was located between two differently elevated portions of a parking lot. The parking lot was at Summit Fair Shopping District within the city limits.

The City of Lee’s Summit had adopted portions of the International Building Code, more commonly known as IBC, as its governing regulation for design and construction of retaining walls. The IBC provides that “Guards are required at retaining walls over 30 inches above grade when walking surfaces are within 10 feet of the high side of the retaining wall.”

Many municipalities have adopted the IBC in their public contracts. It is widely accepted as a standard – if not the standard – in the construction industry.

The city required the corporate defendants, who remain in the lawsuit after this decision, to obtain building permits. The city’s agent, according to plaintiff’s allegations, either did not inspect at all or failed to inspect the project site and the design plans.

The city did collect the appropriate permit fees and issued the building permits, thereby allowing the corporate defendants to construct the retaining wall. Pycior claimed that the as-built retaining wall did not conform with the building code because it did not include a guard, fence or barrier.

Due to the City of Lee’s Summit’s alleged negligent inspection or lack thereof, the plaintiff sought recovery for his injuries including the award of punitive damages.

The city moved to dismiss, claiming sovereign immunity. The trial court denied this request. The city then sought a writ of prohibition in the Western District Court of Appeals.

A writ of this sort, if granted, prevents the trial court from what it decided and requires it to do something else, generally the opposite of whatever it did.

A lawsuit against a city requires the plaintiff to show enough to prove there is a viable lawsuit that survives a city’s typical immunity. Missouri’s courts have routinely held that sovereign immunity is not for the municipality to plead and prove.

Rather, it is for the plaintiff to allege and to show with specificity that there are facts that merit an exception to the doctrine of sovereign immunity. Sovereign immunity, simply stated, prevents a lawsuit against the city because it is a city.

Loosely speaking, the concept dates way back to the idea that the king and queen could do no wrong, thus they were above the law and thus above any lawsuit. A more modern American version, of course, is the expression, “You can’t sue city hall.”

But sovereign immunity is not absolute. The critical distinction is whether the city engaged in governmental functions or proprietary functions.

Governmental functions are performed for the common good of all. Proprietary functions are performed for the special benefit or profit of the municipality. They involve a municipality providing services or conveniences to its citizens.

The distinction can be elusive. This helps to explain why various plaintiffs over the years believe they have had a viable lawsuit against a city.

There have been many lawsuits before, some successful, and there surely will be many to come in the years ahead.

In this case, the plaintiff maintained that the City of Lee’s Summit engaged in a proprietary function when it negligently inspected or failed to inspect the retaining wall and then issued its building permit.

The city’s code and regulations required that it inspect the retaining wall to ensure safety and compliance with the city’s code and regulations, including the IBC. This duty was mandatory, according to the plaintiff’s allegations.

The opinion does not indicate anywhere that the retaining wall complied with the IBC. Yet, this was not the determining factor regarding the city’s liability.

The appellate court noted that governmental functions do not become proprietary functions merely because they generate a profit or in this case a fee for a construction permit. Instead, the court focused on the general nature of the activity being performed.

The court found this activity to be governmental in nature.

The appellate court stated that the city may have been negligent in its actions or its failure to act. This negligence may even have caused a breach of the city’s duty of care to enforce its building code.

From a legal point of view, however, this did not matter. The City of Lee’s Summit was carrying out its governmental functions by enforcing the building code. Therefore, the city is immune from this lawsuit. In fact, the court found that the city had an “absolute defense of sovereign immunity.”

The court of appeals ruled that the trial court erred in not granting the city’s initial motion to dismiss the lawsuit. The appellate court’s writ of prohibition is now permanent. The city is removed from the lawsuit.

James R. Keller is counsel with Sandberg Phoenix & von Gontard P.C. where he concentrates his practice on construction law, complex business disputes, real estate and ADR. He also is an arbitrator and a mediator. Keller can be reached at (314) 446-4285 or jkeller@sandbergphoenix.com.

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