In the 

Missouri Court of Appeals

Western District

STATE OF MISSOURI EX REL CITY OF 

LEE'S SUMMIT, MISSOURI,

Relator,

v.

HONORABLE KENNETH R. 

GARRETT, III, JUDGE FOR THE 16TH

JUDICIAL CIRCUIT OF MISSOURI,

Respondent.

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WD82262

OPINION FILED:

February 13, 2019

Original Proceeding on Petition for Writ of Prohibition

Before Writ Division:

Alok Ahuja, P.J., Gary D. Witt, and Thomas N. Chapman, JJ.

The City of Lee’s Summit (“the City”) seeks a writ of prohibition directing the Circuit 

Court of Jackson County to grant the City's motion to dismiss claims against it. In the 

underlying suit Kurt Pycior (“Plaintiff”) claims that he was injured, in part, due to the City’s 

failure to properly inspect property and enforce its ordinances. The City claims it is entitled to 

sovereign immunity against Plaintiff’s claims. We issued a preliminary writ of prohibition and 

now make that writ permanent.
2

Factual and Procedural Background

Plaintiff filed the underlying suit in the Circuit Court of Jackson County on May 4, 2018. 

According to facts alleged in the petition,

1

on April 18, 2017, Plaintiff suffered serious injuries 

when he fell from an unguarded retaining wall. The wall was situated between two differently 

elevated tracts of a parking lot located at the Summit Fair shopping district within the City. 

Various corporations, also named in the petition (“Corporate Defendants”), either designed and 

built the retaining wall and parking lot (which were constructed between 2009 and 2010), or 

owned or operated the real estate where the accident occurred. The City did not own or operate 

the property where the retaining wall was located. 

The City adopted portions of the International Building Code (“IBC”) as its regulation 

governing, among other things, the design and construction of retaining walls (the “Building 

Code).2 In particular Sec. 7-224 of the Building Code provided: “Guards are required at 

retaining walls over thirty (30) inches above grade when walking surfaces are within ten (10) 

feet of the high side of the retaining wall.” In order to construct the retaining wall and parking 

lot, the Corporate Defendants were required to obtain building permits from the City, and the 

 

1

“In reviewing a motion to dismiss we examine the pleadings, allowing them their broadest intendment, 

treating all facts alleged as true, and construing the allegations favorable to plaintiff to determine whether they 

invoke principles of substantive law.” Aiello v. St. Louis Cmty. Coll. Dist., 830 S.W.2d 556, 558 (Mo. App. E.D. 

1992).

2 Lee’s Summit Ordinance No. 7369 adopted the 2012 IBC and was in effect at the time of the subject 

incident. Lee’s Summit Ordinance No. 6399 adopted the 2006 IBC and was in effect at the time of the building 

permit and inspections at issue.
3

City issued building permits after its agents inspected (or failed to inspect) 3the site or design 

plans. 

The City collected the applicable fees and issued the permits which allowed the 

Corporate Defendants to construct the retaining wall. Plaintiff alleged that the retaining wall was 

not in conformity with the Building Code, as it did not include a guard, fence, or barrier.

In his petition, Plaintiff claimed that the City’s negligent inspection (or lack of 

inspection) contributed to his injuries and that aggravating circumstances warranted an award of 

punitive damages. In its Motion to Dismiss the City claimed sovereign immunity. The trial 

court denied the motion and the City sought a writ of prohibition in this Court. 

Discussion

We review de novo whether a defendant claiming sovereign immunity is entitled to 

dismissal from suit for failure to state a cause of action. Thomas v. City of Kansas City, 92 

S.W.3d 92, 96 (Mo. App. W.D. 2002). “The pleadings are liberally construed, and all alleged 

facts are accepted as true and construed in a light most favorable to the pleader.” Id.; see also

State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 82 (Mo. banc 2008). However, “Missouri 

courts have routinely held that sovereign immunity is not an affirmative defense and that the 

plaintiff bears the burden of pleading with specificity facts giving rise to an exception to 

sovereign immunity when suing a public entity.” Richardson v. City of St. Louis, 293 S.W.3d 

133, 137 (Mo. App. E.D. 2009).

 

3 Plaintiff’s petition states that Lee’s Summit did conduct an inspection or review (but did so negligently) 

and also alleges that Lee’s Summit failed to conduct an inspection. 
4

A writ of a prohibition is an extraordinary remedy. State ex rel. Norfolk S. Ry. Co. v. 

Dolan, 512 S.W.3d 41, 45 (Mo. banc 2017). It is available: 

(1) to prevent the usurpation of judicial power when the trial court lacks authority 

or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of 

discretion where the lower court lacks the power to act as intended; or (3) where a 

party may suffer irreparable harm if relief is not granted. 

Id. (quoting State ex rel. Missouri Pub. Def. Comm'n v. Waters, 370 S.W.3d 592, 603 (Mo. banc 

2012)). This Court is typically reluctant to exercise our authority to issue a writ of prohibition to 

correct interlocutory error. State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 500 (Mo. App. E.D. 

1985). However,“[i]f a party cannot state facts sufficient to justify court action or relief, it is 

fundamentally unjust to force another to suffer the considerable expense and inconvenience of 

litigation. It is also a waste of judicial resources and taxpayer money.” State ex rel. Henley v. 

Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009). “A writ of prohibition is appropriate to correct

interlocutory error where parties do not have adequate remedy by way of appeal.” State Ex rel. 

City of Nevada v. Bickel, 267 S.W.3d 780, 782 (Mo. App. W.D. 2008).

“Prohibition is particularly appropriate when the trial court, in a case where the facts are 

uncontested, wrongly decides a matter of law thereby depriving a party of an absolute defense.” 

State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 101 (Mo. App. S.D. 1996) (quoting State 

ex rel. Feldman v. Lasky, 879 S.W.2d 783, 784–85 (Mo. App. E.D. 1994)). Where it applies, 

sovereign immunity is an absolute defense. State ex rel. Div. of Motor Carrier & R.R. Safety v. 

Russell, 91 S.W.3d 612, 615 (Mo. banc 2002). Prohibition is therefore an appropriate remedy 

when “a defendant is clearly entitled to immunity.” State ex rel. Bd. of Trs. of City of North 

Kansas City Mem'l Hosp. v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992). 
5

Under the common law municipalities are immune from tort liability “when engaged in 

‘governmental’ functions, but not ‘proprietary’ functions.” Richardson, 293 S.W.3d at 136–37. 

Governmental functions are “performed for the common good of all.” Parish v. Novus Equities 

Co., 231 S.W.3d 236, 242 (Mo. App. E.D. 2007). Proprietary functions entail acts that are 

performed for the special benefit or profit of the municipality. State ex rel. City of Marston v. 

Mann, 921 SW.2d 100, 102 (Mo. App. S.D. 1996). Proprietary functions often involve a 

municipality providing services or conveniences to its citizens. Bennartz v. City of Columbia, 

300 S.W.3d 251, 259 (Mo. App. W.D. 2009). 

Plaintiff maintains that the City was engaged in a proprietary function when it negligently 

inspected (or failed to inspect) the retaining wall and then issued its building permit. Plaintiff 

claims no other exception to sovereign immunity.4 We must therefore determine whether 

Plaintiff has pled with specificity facts which indicate that the City was engaged in a proprietary 

function when it issued its building permit. Richardson, 293 S.W.3d at 137.

Plaintiff’s Petition, in pertinent part, provides as follows:

39. Upon information and belief, Defendant Lee’s Summit issued building 

permits after its agents and/or employees inspected the site and or/design plans 

and collected a fee5for doing so.

 

4

“A municipality has sovereign immunity from actions at common law tort in all but four cases: (1) where 

a plaintiff's injury arises from a public employee's negligent operation of a motor vehicle in the course of his 

employment; (2) where the injury is caused by the dangerous condition of the municipality's property; (3) where the 

injury is caused by the municipality performing a proprietary function as opposed to a governmental function; and 

(4) to the extent the municipality has procured insurance, thereby waiving sovereign immunity up to but not beyond 

the policy limit and only for acts covered by the policy.” Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo. 

App. W.D. 2009) (internal citations omitted). Plaintiff’s Petition alleged no facts that encompass the other 

exceptions and he makes no argument in support of any other exception to sovereign immunity. As a consequence, 

the only exception for our consideration is whether the City was engaged in a proprietary function in the course of 

the conduct alleged in the Petition. 

5 The petition does not indicate the amount charged for the permit fee. Allegations regarding the amount of 

the permit fee (or its purpose) were only raised in responsive arguments and were not included in the petition.
6

****

 84. Defendant Lee’s Summit, pursuant to City Code and Regulation, had 

a duty to inspect the retaining wall to insure its safety and compliance with all 

applicable City Codes. Such duty to conduct City Inspections is and was a 

mandatory and ministerial action that was to be taken by Defendant Lee’s Summit 

through its agents and employees, and more specifically, by its inspectors.

85. In conducting construction inspections for compliance with City 

Codes, Defendant Lee's Summit, through its authorized agents, employees, and 

inspectors would conduct themselves in such a fashion that they were performing 

ministerial activities. The failure to install a guardrail fence, barricade or other 

safety feature along the retaining wall was open and obvious to any inspector or 

inspectors, if such inspection had in fact taken place.

86. Specifically, the absence of a guard, fence or barricade on of [sic] a 

retaining wall over thirty inches above grade and the high side of the retaining 

wall was within ten feet of a walking surface would have been open and obvious 

to any inspection. Such condition, left unremedied, would be a condition that was 

not only dangerous and defective, but in violation of City Code.

87. Failure of the Defendant Lee’s Summit to inspect was negligent and 

was a failure to perform non-discretionary6duties.

When we determine whether sovereign immunity bars a claim, our “analysis focuses on 

the activity giving rise to the injury to determine whether the activity was an exercise of a 

governmental or a proprietary function.” State ex rel. Bd. of Trustees of City of N. Kansas City 

Mem'l Hosp., 843 S.W.2d at 358. Promulgation of a building code by a municipality is an 

exercise of the police power conferred on it by the legislature for health and safety. Engelage v. 

 

6 Throughout his Petition, Plaintiff contended that certain duties are non-discretionary. The distinction 

between discretionary and non-discretionary (ministerial) duties is an issue when analyzing whether public 

employees are entitled to claim official immunity. E.g., Rhea v. Sapp, 463 S.W.3d 370, 376 (Mo. App. W.D. 2015). 

The distinction between ministerial and discretionary duties is not relevant in determining whether a function is 

proprietary or governmental.
7

City of Warrenton, 378 S.W.3d 410, 414–15 (Mo. App. E.D. 2012). “It is well established that 

enforcement of ordinances is a governmental function.” Nevada v. Bickel, 267 S.W.3d at 783. 

In Nevada v. Bickel, the claimant alleged that the City of Nevada had charged a fee for an 

electrical inspection that was woefully inadequate. Id. The occupant of the dwelling that had 

been inspected died of electrocution and the City of Nevada was sued for conducting a negligent 

inspection. Id. at 782. The claimant in Nevada v. Bickel (like Plaintiff herein) argued that the 

inspection was so negligent it was tantamount to performing no inspection, and that its only real 

purpose was pecuniary (to collect the fee), and thus a proprietary function. Id. at 783. Granting 

a permanent writ of prohibition based on sovereign immunity, the Nevada v. Bickel court stated:

“We find neither assertion persuasive. Charging a fee for a public service does not transform a 

governmental function into a proprietary one. Nor does negligent performance of a public 

function, even grossly negligent performance, make a governmental function proprietary.” Id.

(internal citations omitted). 

Plaintiff argues that, because there may have been no inspection before the City of Lee’s 

Summit issued its permit and charged its fee, the facts herein are distinguishable from Nevada v. 

Bickel (where the inspection was alleged to be grossly inadequate). Plaintiff cites no basis for 

this distinction, and we find none.

 “[F]unctions that are otherwise governmental are not transformed into proprietary 

functions merely because they generate a profit or are accompanied by a fee.” Crouch v. City of 

Kansas City, 444 S.W.3d 517, 524 (Mo. App. W.D. 2014). When assessing whether an action is 

governmental or proprietary we do not assess the particular performance of a specific event but 
8

rather the general nature of the activity being performed. State ex rel. Bd. of Trustees of City of 

N. Kansas City Mem'l Hosp., 843 S.W.2d at 359. 

In examining the question of whether an activity is governmental or proprietary, 

the nature of the particular defendant's conduct is often less important than the 

generic nature of the activity. Rather than examining the motives of the city 

employees who were performing the function, the analysis focuses on the motives 

of the legislature that conferred the power upon all municipalities.... The status of 

a function of a city does not vary from day to day with the whims of the particular 

people elected or appointed to municipal offices. 

Id. 

Paragraph 84 of Plaintiff’s petition indicates that the City had a “duty to inspect the 

retaining wall to insure its safety and compliance with all applicable City Codes.” Providing the 

petition in question the broadest interpretation of its allegations, Plaintiff claims that the City 

breached its duty to properly enforce its building code. “The generic nature of the inspections is 

to enforce ordinances designed to protect public health and safety. It is well established that 

enforcement of ordinances is a governmental function.” Nevada v. Bickel, 267 S.W.3d at 783. 

An omission, or failure to act, may be the basis for a claim of negligence, and such failure 

to act may be in the course of carrying out a governmental function. See Aiello v. St. Louis 

Community College, 830 S.W.2d 556, 559 (Mo. App. E.D. 1992). For example, in Aiello the 

Plaintiffs claimed that a school district had failed to discover and stop fraudulent expense 

reimbursement requests. Id. The Aiello court found that the alleged omissions were in the 

course of the district’s duty to manage its funds, and thus a governmental function entitled to 

sovereign immunity. Id. 

Regardless of whether Plaintiff alleges an act or omission that constituted a breach of the 

City’s duty of care to enforce its building code, the City was engaged in a governmental function 
9

in doing so. The fact that the City charged a fee for issuance of a permit did not transform 

enforcement of its building code into a proprietary function. Crouch, 444 S.W.3d at 524. 

Because the alleged negligent acts (or omissions) of the City were in the course of carrying out 

the governmental function of enforcing its building code, the City is entitled to sovereign 

immunity.

Conclusion

Because the City was entitled to an absolute defense of sovereign immunity, the circuit 

court erred in overruling the City’s Motion to Dismiss.7 Accordingly, our writ is now made 

permanent. The circuit court shall take no further action against the City other than entering an 

order dismissing all of the claims against the City with prejudice. Nothing herein should be read 

to affect any of the remaining claims against the other named defendants in the underlying action 

pending before the circuit court.

/s/ Thomas N. Chapman

Thomas N. Chapman, Judge

All concur.

 

7

In its Motion to Dismiss the City also claimed that Plaintiff was not entitled to seek punitive damages 

against the City. Because the City was entitled to sovereign immunity with respect to all claims, we have not 

separately addressed the issue of punitive damages.