#### Shaina MANGUM, Plaintiff-Appellant, v. WEBSTER COUNTY, Missouri, Defendant-Respondent.

No. SD 34534

Missouri Court of Appeals, Southern District, Division Two.

Filed: May 25, 2017

*723Attorneys for Appellant—James E. Cor-bett, Daniel P. Malloy, Justin T. Gregg of Springfield, MO.

Attorneys for Respondent—Brian D. Malkmus, Deborah A. Malkmus, Alex C. Riley of Springfield, MO.

GARY W. LYNCH, P.J.

Shaina Mangum appeals the trial court’s grant of summary judgment in favor of Webster County, Missouri (“County”), on her claim for damages resulting from an automobile accident in which she asserts County’s liability based on a waiver of sovereign immunity. In a single point, Mangum claims the trial court erred in granting County’s motion for summary judgment because “there were one or more genuine disputes of material fact and [County] did not show that it was entitled to judgment as a matter of law.” Because the summary judgment record does not establish that Mangum would be able to show a dangerous condition and therefore a waiver of sovereign immunity, we affirm the trial court’s judgment.

Factual and Procedural Background

On April 27, 2001, Mangum was driving a four-wheel all-terrain vehicle eastbound on Old Hillcrest Road in Webster County. Mangum collided with a westbound car driven by Lucas Tyson. Either Mangum or Tyson was driving on the wrong side of the road. At the time and place of the collision, Old Hillcrest Road was owned and maintained by County, which is a governmental entity.

Mangum filed a petition against County alleging that the collision occurred “just over a hillcrest on Old Hillcrest Road” and that “Old Hillcrest Road, at the site of the collision and areas adjacent to the collision, were in a dangerous condition because motorists traveling along Old Hillcrest Road did not have enough sight distant [sic] along the road to see approaching motorists.” Mangum further alleged that “County knew or could have known of the dangerous condition in time prior to the collision to have remedied or warned of the dangerous condition.” County answered the petition asserting, among other things, that it “is a governmental entity and is protected from suit by sovereign immunity and the provisions of R.S.Mo. § 537.600.”

Thereafter, County filed a motion for summary judgment, asserting that Man-gum “is unable as a matter of law to make her case against the county” because Man-gum failed “to plead or prove a physical defect in the premises which is required to prove a waiver of sovereign immunity” and “[t]he roadway sight distance is an open and obvious condition for which there is no duty to warn or remedy.” In her response to this motion, Mangum admitted that she was “not claiming the negligent design or construction of the road as a dangerous condition[,]” but rather was “claiming a negligent failure to warn of or remove a dangerous condition of [County’s] property.” Also in her response, Mangum alleged thirteen numbered additional material facts that remained in dispute. Only three *724address the sight distance, or lack thereof, on Old Hillcrest Road:

> 9. A westbound motorist approaching the hillcrest to the immediate east of the scene of the collision cannot see eastbound vehicles to the west of the hill-crest due to the hillcrest.

> 10. An eastbound motorist approaching the hillcrest to the immediate east [sic] of the scene of the collision cannot see westbound vehicles to the east of the hillcrest.due to the hillcrest.

> 11. A westbound motorist cannot see over the hillcrest to the immediate east of the scene of the collision until the westbound motorist is “almost cresting” the hillcrest.

The trial court sustained County’s motion for summary judgment and entered judgment on Mangum’s petition in favor of County and against Mangum. Mangum timely appeals.

Standard of Review and Applicable Law

> Our review essentially is de novo, using the same criteria that trial courts should employ to determine summary judgment motions initially. We view the record in the light most favorable to the [non-movant], without deferring to the trial court, since the propriety of summary judgment is purely an issue of. law.

*Maune ex rel. Maune v. City of Rolla,*203 S.W.3d 802, 804 (Mo. App. 2006)(eiting *ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp.,*854 S.W.2d 371, 376 (Mo. banc 1993)).

As a public entity, County was entitled to sovereign immunity from tort liability except to the extent immunity was waived under section 537.600, RSMo 2000. As relevant in this case, immunity, was waived for:

> [i]njuries caused by the condition of a public entity’s property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Section 537.600.1(2). “The plaintiff must establish these elements as part of its own case, because sovereign immunity is not an affirmative defense.” *Maune,*203 S.W.3d at 804.

> We presume Plaintiffs claim was asserted in a manner designed to allow it to fall within the statutory exception to what would otherwise provide County with sovereign immunity to her tort claim. *See*§ 537.600;c ] *State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell,*91 S.W.3d 612, 615 (Mo. banc 2002) (“Sovereign immunity is a judicial doctrine that , precludes bringing suit against the government without its consent”).

> 

> As the defending party, County could “establish a right to summary judgment by showing: (1) facts negating any one of the claimant’s elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of the existence of any one of the claimant’s elements; or (3) that there is no genuine dispute as to the existence *of*each of the facts necessary to support a properly pleaded affirmative defense.” *Ameristar Jet Charter, Inc. v. Dodson Int’l Paris, Inc.,*155 S.W.3d 50, 58-59 (Mo. banc 2005).

> *725*Belt v. Wright Cnty., Mo.,*347 S.W.3d 665, 666-67 (Mo. App. 2011). Under the second method, therefore, as the summary judgment movant and defending party, County could establish a right to summary judgment if Mangum presented insufficient evidence to allow the finding of the existence of any one of the elements of her claim.

Discussion

Mangum’s sole point relied on contends:

> The trial court erred in granting Respondent’s Motion for Summary Judgment because MO.R.Civ.P. 74.04 does not permit the relief granted by the trial court, in that there were one or more genuine disputes of material fact and [County] did not show that it was entitled to judgment as a matter of law. [1]

In order to establish that County waived sovereign immunity, Mangum must plead and prove all four elements of waiver, the first and most critical element in this case being that the “property was in dangerous condition- at the time of the injury[.]” Section 537.600.1(2). “A ‘dangerous condition’ under Section 537.600 requires a defect in the physical condition of public property. For property to be dangerous, there must be some defect, physical in nature, in the sovereign’s property.”' *Maune,*203 S.W.3d at 805.

In her petition,. Mangum alleges the dangerous condition as “motorists traveling along Old Hillcrest Road did not have enough sight distant [sic] along the road to see approaching motorists,” She describes it in her brief as the “deficient” or “limited sightline distance” created by the “blind hillcrest.” She argues' that “the danger was the presence of obstacles over the crest of the blind hillcrest that cannot be perceived due to the sight distance limitations until it was too late to avoid the obstacle,” In other words, and because it is uncontro-verted that either Mangum or Tyson was driving on the wrong side of the road at the time of the collision, Mangum is claiming that the hill itself was a dangerous condition because it obscured motorists’ view of vehicles traveling on the wrong side of the road on the other side of the hillcrest.

In support of her position, Mangum relies heavily on *Ielouch v. Missouri Highway and Transp. Comm’n,*972 S.W.2d 563 (Mo. App. 1998).2 In *Ielouch,*the court *726found that plaintiffs were entitled to a jury instruction for failure to warn of a dangerous condition based on allegations that a hillcrest obscured a motorist’s view of a school entrance. *Id.*at 564. The intersection created by the school entrance and its proximity to the hillcrest makes *Ielouch*materially distinguishable. In this case, and in contrast to *Ielouch,*the hill was not obscuring the view of an intersection or any other physical condition that in combination with the hill created a danger. According to the summary judgment record here, the hillcrest in question was located along a straight section of Old Hillcrest Road that had no nearby intersections or driveways and that followed the natural elevations of the land. Only natural terrain—the land’s own rise and fall—affected a driver’s view on this straight and ordinary stretch of road.

As asserted by County, this case is more factually similar to *Harris v. Niehaus, 857*S.W.2d 222 (Mo. banc 1993). In *Harris,*three children were drowned when the “automobile in which they had been left unattended i'olled down a roadway, through some woods and into a lake.” *Id.*at 224. Our supreme court found that because the “road obviously slopes down toward the lake” which was less than 300 feet away “and the only visible barriers between the road and the lake” are the trees, the natural condition of the area was “open and obvious to all who would encounter it.” *Id.*at 226. Based on this, the Court concluded that the road owners were “entitled to expect that their invitees will exercise ordinary perception, intelligence and judgment, discover this obvious condition, appreciate the risk it presented, and take the minimal steps necessary to avert a tragedy.” *Id.*

As in *Harris*and as distinguished from *Ielouch,*the roadway in the instant case involved only the natural condition of the area—the hill. In the same way that gravity’s potential effect in *Harris*was open, obvious, and recognizable to all, the inability here to see through or over a naturally occurring solid object—the hill—was also open, obvious, and recognizable to all.

Whether the danger is open and obvious influences the propriety of summary judgment based on sovereign immunity because, as we noted in *Maune:*

> A landowner is not an insurer of the well-being of invitees, and generally is not required as a matter of law to protect invitees against open and obvious conditions. The landowner is entitled to expect that invitees will exercise ordinary perception, intelligence, and judgment to discover open and obvious conditions, appreciate the risk they present, and take the minimal steps necessary to protect themselves. In other words, the landowner may reasonably rely on invitees to see and appreciate risks presented by open and obvious conditions, and may reasonably rely on an invitee’s normal sensibilities to protect against same. *See, e.g., Crow v. Kansas City Power & Light Co.,*174 S.W.3d 523, 534 (Mo. App. 2005), *citing Harris v. Niehaus,*857 S.W.2d 222, 226 (Mo. banc 1993).

*Maune,*203 S.W.3d at 805.

Because the road in this case simply followed the natural contours of the area and did not obscure any man-made physical conditions, we are persuaded by County’s summary judgment position that Mangum “is unable as a matter of law to make her case against the count/’ because Mangum failed “to plead or prove a physical defect in the premises which is required to prove a waiver of sovereign immunity” and “[t]he roadway sight distance *727is an open and obvious condition for which there is no duty to warn or remedy.”

> One way that a defendant can prove a right to summary judgment is by showing that, after an adequate period of discovery, the plaintiff is and will remain unable to produce evidence sufficient to establish any one of the plaintiffs required elements. Upon such showing, the plaintiff may not rest upon the mere allegations of his pleading, but must respond by affidavit or otherwise to set forth specific facts showing that there is a genuine issue for trial.

*Maune,*203 S.W.3d at 804.

Under the facts of this case, in order for this particular hill, to be a dangerous condition, Mangum needed to respond to County’s motion for summary judgment by producing evidence of some physical defect in the road or the surrounding area other than its natural condition of simply being located on an open and obvious hill. In doing so, Mangum could not rest upon the mere allegations of her petition, but needed to set forth specific facts showing a genuine issue for trial. Rule 74.04(c)(2). Mangum’s statement of additional material facts set forth three facts regarding the hill’s alleged defects.3 These statements, set forth above, establish at best that eastbound and westbound motorists cannot see each other until “almost cresting” the hill. This sight limitation, however, is not due to a physical defect in the roadway. Rather, it is due to the open and obvious “natural condition of the area[.]” *Harris,*857 S.W.2d at 226. Because Mangum failed to produce any evidence of a physical defect in the roadway created by the hill, summary judgment was appropriate. *Maune,*203 S.W.3d at 804. Mangum’s point is denied.

Decision

The trial court’s judgment in favor of County is affirmed.

NANCY STEFFEN RAHMEYER, J.— DISSENTS IN SEPARATE OPINION

WILLIAM W. FRANCIS, JR., J.— CONCURS

1

. Instead of all capital letters as used in her brief, we quote Mangum’s point using upper and lower case letters to assist readability. Because no rule requires or suggests that points relied on be presented using all capital letters, *see*Rule 84.06; Rule 81.18; *State ex rel. Marshall by Franklin v. Hercey,*869 S.W.2d 878, 879 (Mo. App. 1994), we strongly encourage the use of upper and lower case letters in points relied on in all briefs for the same reason.

All rule references are to Missouri Court Rules (2017).

Mangum’s point is deficient in its failure to "explain in summary, fashion why, in the context of the case, those legal reasons support the claim of reversible error" as required by Rule 84.04(d)(1)(C). Untethered from the specific context of this case, Mangum’s point is nothing more than an abstract statement of the law applicable to every case in which the trial court grants a motion for summary judgment. Although her failure to comply with the rule preserves nothing for our review, we review her claim ex gratia because it appears that County understands the argument and we are also able to surmise the nature of her claim from her argument such that our review is not unduly impaired. *Won II Kim v. Shelton,*485 S.W.3d 377, 379 (Mo. App. 2016).

2

. Mangum also cites *Boney v. Worley,*261 S.W.3d *641,*647 (Mo. App. 2008), *Belt v. Wright Cnty.,*347 S.W.3d 665 (Mo. App. 2011), and *United Mo. Bank, Conservator of the Estate of Dennis Gallagher*v. *City of Grandview,*105 S.W.3d 890 (Mo. App. 2003). They all are distinguishable for the same reason as *Ielouch.*

3

. Mangum also set out several fact statements related to the absence of any warning signs on either side of the hill, which County admitted. Failure to warn, however, "cannot constitute a dangerous condition of the properly for purposes of waiving sovereign immunity.” *Maune,*203 S.W.3d at 805.

Nancy Steffen Rahmeyer, J.,

dissenting.

I respectfully dissent because I believe our affirmance of the summary judgment motion is being granted without a proper evidentiary basis. The majority opinion finds that County is entitled to summary judgment because Mangum presented insufficient evidence to allow the finding that there was an. inadequate sight distance on the hill. To reach that result, the majority relies upon *Harris v. Niehaus,*857 S.W.2d 222, 224 (Mo. banc 1993), a case that was tried to a jury on a negligence claim against the trustees of a subdivision. After hearing all the evidence, the jury returned a verdict for the plaintiffs. Id. The Supreme Court, again, after reviewing the evidence, including the visibility of the road, the distance from the parking place, and other facts of the case, found the conditions to be “open and obvious.” *Id.*at 227-28.

There is no evidence in this case to reach that conclusion. Mangum contended there were “no signs alerting motorists to the presence” of a hillcrest, “advising motorists to reduce their speed for the hill-*728crest,” or “warning motorists of the [reduced] sight distance on the hillcrest” near where the collision occurred. There have been no experts telling us whether, with this sight line, County is reasonable to expect that drivers will appreciate the danger of this particular hill. We do not know how steep this hill is or the layout of the hill, We do not know whether this hill was obscured in any way or the speed limit of the roadway. We simply do not know whether this hill was, open and obvious by the summary judgment motion before the trial court. Instead, we simply rely on a conclusion that, in our judgment, a hill is open and obvious. We draw that conclusion that the hill is open and obvious and, therefore, there is no duty to warn despite the fact that we could find no cases granting summary judgment on that basis.

I note previous case's which have allowed the assertion of an inadequate sight line on a hill was inappropriate for summary judgment and a fact question as to dangerous condition. For instance, in *Ielouch v. Missouri Highway and Transportation Commission,*972 S.W.2d 563 (Mo.App. W.D. 1998), the Ielouchs sued the Missouri Highway and Transportation Commission arising out of an automobile crash in which they contended that a hillcrest obscured motorists’ vision of a school entrance ánd made the highway unsafe. *Id.*at 564. The appellate court found the verdict director to be faulty because the plaintiffs were entitled to submit a jury instruction on the theory that the commission failed to warn of a dangerous condition. *Id.*at 566. Plaintiff in this case has alleged that one of the dangerous conditions was a failure to warn of the “blind hillcrest that obstructed the ability of motorists to see and react to obstacles on the opposite side of the hill-crest until it was too late.” “[A] dangerous condition of public property may arise from a general failure to post adequate signing or traffic controls.” *United Missouri Bank, N.A. v. City of Grandview,*105 S.W.3d 890, 902 (Mo.App. W.D. 2003). The allegation of a failure to warn of a dangerous condition “ ‘allege[d] a dangerous condition generally as opposed to negligent design.’” *Boney v. Worley,*261 S.W.3d 641 (Mo.App. W.D. 2008) *(quoting Ielouch,*972 S.W.2d at 566).

Likewise, County’s claim that one of the parties driving on the wrong side of the road was an intervening cause does not withstand scrutiny. “If two or more persons are guilty of consecutive acts of negligence thei’e is a question as to whether the initial act of negligence was a proximate cause of the injury or whether there was an efficient, intervening cause.” *United Missouri,*105 S.W.3d at 900 (internal citation and quotation omitted). “An efficient, *intervening*cause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate, and immediate cause of the injury,'but it may not consist of merely an act of concurring or contributing negligence.” *Id.*

This may be a difficult factual situation for Mangum to prevail, but until the facts are fully developed, I believe summary judgment is inappropriate. I would reverse and remand.