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SHANNA PAINTER and LANCE ) 

PAINTER, ) 

 ) 

 Plaintiffs-Appellants, ) 

 ) 

 vs. ) No. SD33111 

 ) 

CITY OF HUMANSVILLE, MISSOURI, ) Filed: February 20, 2015 

 ) 

 Defendant, ) 

 ) 

and LEONARD WALBURN, RHONDA ) 

ROGERS, JOHN HENRY, and DARRELL ) 

R. LEAN, JR., ) 

 ) 

 Defendants-Respondents. ) 

APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY 

Honorable Donald G. Cheever, Special Judge 

AFFIRMED

 Shanna and Lance Painter (collectively, “Plaintiffs”) appeal the trial court’s entry 

of summary judgment on their Second Amended Petition in favor of John Henry 

(“Henry”), Darrell R. LeAn, Jr. (“LeAn”), Rhonda Rogers (“Rogers”) and Leonard 

Walburn (“Walburn”) (collectively, the “Individual Defendants”), and the trial court’s 

denial of their motions for leave to file a third amended petition that sought to add 
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allegations that the Individual Defendants acted “willfully or in bad faith” to overcome 

public duty and official immunity and “to seek punitive damages.” Because, under the 

most recent decision of the Supreme Court of Missouri, the Individual Defendants were 

entitled to immunity under the public duty and official immunity doctrines from the 

allegations in Plaintiffs’ Second Amended Petition, the trial court properly granted 

summary judgment in favor of the Individual Defendants. In addition, the trial court did 

not abuse its discretion in denying Plaintiffs leave to file a third amended petition as 

untimely. The trial court’s summary judgment is affirmed. 

Facts

The material facts with respect to the Individual Defendants were the following.1 

Tryston Painter, the minor child of Plaintiffs Shanna and Lance Painter, was killed on 

October 11, 2010 when a free-standing chimney on private property in Humansville fell 

on him. Plaintiffs alleged that the Individual Defendants, in their capacities as employees 

or officers of Humansville, were liable for Tryston’s injuries based on the Individual 

Defendants’ negligent failure to enforce, or comply with their duty under, a Humansville 

ordinance that provided a procedure for abating the nuisance presented by the chimney. 

Henry was the mayor and an alderperson for Humansville until he resigned on October 

13, 2009. LeAn was the chief of police for Humansville; Rogers was an alderperson; and 

Walburn was the mayor of Humansville. On October 11, 2010, Humansville had a 

general liability policy of insurance that insured Humansville. 

In April 2008, Rogers had determined that the chimney in question and other 

conditions on the property were a nuisance, and notified the owner of the property that 

 

1

 We review the facts and inferences in the light most favorable to the party against whom summary 

judgment was granted. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 

S.W.2d 371, 376 (Mo. banc 1993). 
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the owner had to remove the chimney. The owner did not take any of the actions 

permitted by the ordinance in response to the notice. Under the ordinance in question, 

once notified that a nuisance must be abated or removed, the person notified must within 

fourteen days (1) abate the nuisance, (2) consent for Humansville to abate the nuisance, 

or (3) request a hearing before the mayor. If the person notified does not “exercise one of 

the[se] alternatives,” “then the Mayor, or his or her designee, shall confirm the finding 

that a nuisance exists and proceed with the abatement of the nuisance in any reasonable 

manner . . . .” Henry, LeAn, Rogers and Walburn did not “abate the nuisance.” 

Procedural History 

In April 2011, Plaintiff Shanna Painter filed suit against the City of Humansville 

and the Individual Defendants among others. Lance Painter, Shanna’s husband, also 

joined as a plaintiff. On April 17, 2013, the Individual Defendants, along with another 

defendant, filed a motion for summary judgment with respect to Plaintiffs’ Second 

Amended Petition. The Individual Defendants based their motion on the official 

immunity doctrine and the public duty doctrine. 

The case was set for trial on December 16, 2013. 

On September 12, 2013, Plaintiffs filed a motion for leave to file a third amended 

petition that added allegations that the Individual Defendants acted “willfully or in bad 

faith” to overcome public duty and official immunity and “to seek punitive damages.” 

The trial court denied Plaintiffs’ motion on October 7, 2013. Subsequently, on 

November 15, 2013, Plaintiffs filed a second motion for leave to file a third amended 

petition that added allegations that the Individual Defendants acted “willfully or in bad 
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faith” to overcome public duty and official immunity.

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 The trial court overruled 

Plaintiffs’ second motion with respect to these allegations on December 4, 2013. The 

trial court found the motion to be “fairly late in the game” and causing a “substantial 

change in strategy” that could prejudice defendants. 

After having initially denied the Individual Defendants’ motion for summary 

judgment on May 17, 2013, the trial court then reconsidered the motion in a hearing on 

December 4, 2013, and granted the motion as to the Individual Defendants on December 

5, 2013. The court found the individual employees had immunity and the purchase of the 

insurance policy by the city did not waive immunity as to the individual employees. The 

judgment granting the motion included a determination pursuant to Rule 74.01(b),3 that 

“there exists no just reason for delay.” At that time, the trial court continued the trial of 

the case to permit Plaintiffs to appeal the grant of the Individual Defendants’ motion for 

summary judgment. 

Point I 

In Plaintiffs’ first point, Plaintiffs’ argue that the trial court erred in granting 

summary judgment to the Individual Defendants because Humansville’s “purchase of 

liability insurance that insures public employees” and does not include an endorsement 

that preserves the insureds’ immunities waived the employee-insureds’ immunity under 

the public duty and official immunity doctrines. Our review then is a question of law. 

 Our review is essentially de novo. The criteria on appeal for 

testing the propriety of summary judgment are no different from those 

which should be employed by the trial court to determine the propriety of 

sustaining the motion initially. E.O. Dorsch Electric Co. v. Plaza Const. 

 

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 The proposed third amended petition again included a request for “punitive damages” against the 

Individual Defendants as well. 

3

 All rule references are to Missouri Court Rules (2015), unless otherwise specified. 
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Co., 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary 

judgment is purely an issue of law. As the trial court’s judgment is 

founded on the record submitted and the law, an appellate court need not 

defer to the trial court’s order granting summary judgment. Elliott v. 

Harris, 423 S.W.2d 831, 834 (Mo. banc 1968); Swink v. Swink, 367 

S.W.2d 575, 578 (Mo.1963). 

ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 

371, 376 (Mo. banc 1993). 

Plaintiffs’ principally base their claim on two theories: (1) sections 71.185, 

RSMo 2000, and 537.610, RSMo Cum.Supp. 2009, and (2) our high court’s statement in 

Kunzie v. City of Olivette, 184 S.W.3d 570 (Mo. banc 2006). 

 Turning first to sections 71.185 and 537.610, we note that by their terms neither 

statute purports to waive any immunity of any individual. Section 71.185.1 as relevant 

here states, “[a]ny municipality” (1) “may carry liability insurance . . . to insure such 

municipality and their employees . . ., and [(2)] shall be liable as in other cases of torts . . 

. to the extent of the insurance so carried.” The phrase “shall be liable as in other cases of 

torts . . . to the extent of the insurance so carried” clearly refers to “[a]ny municipality” -- 

not “such municipality and their employees.” 

 Section 537.610.1 as relevant here provides: 

The commissioner of administration . . . may purchase liability insurance 

for tort claims, made against the state or the political subdivision, . . . . 

Sovereign immunity for the state of Missouri and its political subdivisions 

is waived only to the maximum amount of and only for the purposes 

covered by such policy of insurance . . . . 

 

By its terms, the waiver under section 537.610 is limited to a waiver of sovereign 

immunity for the state and its political subdivisions. As a result, the language of sections 

71.185 and 537.610 does not support Plaintiffs’ argument. Further, our high court, in the 

context of discussing sections 71.185 and 537.610, most recently stated “[t]he 
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legislature’s waivers of immunity applicable to defendant municipalities and political 

subdivisions do not abrogate the immunity protections afforded to public employees.” 

Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo. banc 2008). 

 Plaintiffs attempt to overcome the plain language of sections 71.185 and 537.610 

by asserting that our high court in its 2006 opinion in Kunzie specifically held that a 

municipality’s purchase of liability insurance waived all the municipality’s immunities 

and that, as a matter of policy, this same principle should be extended to the immunities 

of the municipality’s employee-insureds. To support their assertion, Plaintiffs point to 

the Supreme Court’s statement in Kunzie that a municipality’s purchase of liability 

insurance “constitutes an absolute and complete waiver of all immunities” and then in a 

footnote, our high court’s further statement that “[t]his absolute waiver includes 

governmental function immunity, the discretionary immunity doctrine, and the public 

duty doctrine.” Kunzie, 184 S.W.3d at 574 & 574 n.4. Plaintiffs complete their 

argument by claiming that the phrase in the footnote “the discretionary immunity 

doctrine, and the public duty doctrine” refers to the “municipal equivalent[s]” of the 

official immunity and public duty doctrines applicable to the municipality’s employeeinsureds with the result that, as a matter of policy, the waiver described in Kunzie should 

be extended to the employee-insureds’ immunities. 

 We are bound by the most recent decision of our Supreme Court. T.Q.L. ex rel. 

M.M.A. v. L.L., 291 S.W.3d 258, 266 (Mo.App. S.D. 2009). In Southers, 263 S.W.3d at 

609, the court stated “[t]he legislature’s waivers of immunity applicable to defendant 

municipalities and political subdivisions do not abrogate the immunity protections 

afforded to public employees.” The only defendant in Kunzie was a municipality. At the 
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time Kunzie was decided, the law was that a municipality (separate and apart from its 

employees) was entitled to three types of immunity – immunity for “governmental 

functions” and immunity under the “discretionary immunity” and “public duty” 

doctrines. See Jungerman v. City of Raytown, 925 S.W.2d 202, 204-06 (Mo. banc 

1996), abrogated in part by Southers, 263 S.W.3d at 613-14 & 614 n.13. Consequently, 

Kunzie does not support Plaintiffs’ position. Kunzie was addressing a municipal 

defendant’s immunities and not the immunities of the municipal defendant’s employeeinsureds.4

 Plaintiffs’ Second Amended Petition alleged that the Individual Defendants were 

negligent in failing to enforce, or to comply with their duty to abate the nuisance 

presented by the free-standing chimney under, a Humansville ordinance that provided a 

procedure for abating the nuisance. Enforcement of, or compliance with, an ordinance is 

a duty owed to the general public rather than a particular individual. See Berger v. City 

of University City, 676 S.W.2d 39, 41-42 (Mo.App. E.D. 1984) (“[e]nforcement of the 

law and keeping of the peace are duties which a municipality and its employees owe to 

the general public but a breach of which is not actionable by a citizen” and, “similarly,” 

the city and its employees were not liable because “they failed to comply with [city] 

ordinances” because they are not liable for a failure to enforce city ordinances (internal 

citations omitted)). Because the duty owed by the Individual Defendants under the 

 

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 Plaintiffs in their reply brief also referred us to the Western District’s opinion in Newson v. City of 

Kansas City, 606 S.W.2d 487, 489, 490-91 (Mo.App. W.D. 1980), as support for the proposition that a 

municipality’s purchase of liability insurance waives the immunities of the municipality’s employeeinsureds. In Newson, the trial court dismissed a petition against a city employee for the negligent operation 

of a fire truck. The Western District reversed and remanded with the direction that Newson “will have

opportunity to amend the petition” as to the city employee to allege that the city employee waived 

immunity under section 71.185. We are not persuaded by the Western District’s view of the scope of 

section 71.185 in light of the plain language of section 71.185 and Southers’ admonition that “[t]he 

legislature’s waivers of immunity applicable to defendant municipalities and political subdivisions do not 

abrogate the immunity protections afforded to public employees.” Southers, 263 S.W.3d at 609. 
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ordinance at issue was to the general public, the Individual Defendants were entitled to 

immunity under the public duty doctrine. See Southers, 263 S.W.3d at 611-12.5

 Summary judgment in favor of the Individual Defendants on Plaintiffs’ Second 

Amended Petition was proper. Plaintiffs’ first point is denied. 

Point II 

 In Plaintiffs’ second point, Plaintiffs contend that the trial court abused its 

discretion in denying their motions for leave to file a third amended petition. The first of 

Plaintiffs’ motions was filed slightly more than three months before trial in a case that 

had been pending more than two years.6

 The proposed amended petition sought to add 

allegations that the Individual Defendants acted “willfully or in bad faith” to overcome 

public duty and official immunity and “to seek punitive damages.” 

 The denial of a motion for leave to amend a petition “lies soundly within the trial 

court’s discretion,” and will not be disturbed unless the denial is an abuse of the trial 

court’s discretion. Lunn v. Anderson, 302 S.W.3d 180, 193 (Mo.App. E.D. 2009); see 

also Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519, 526 

(Mo.App. E.D. 2010). A trial court abuses its discretion “when a ruling is clearly against 

the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense 

of justice and indicate a lack of careful consideration.” Wheeler ex rel. Wheeler v. 

Phenix, 335 S.W.3d 504, 510 (Mo.App. S.D. 2011) (internal citation and quotation 

 

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 We also believe the ordinance may require the exercise of discretion in confirming the existence of a

nuisance and in abating the confirmed nuisance “in any reasonable manner.” For that reason, the 

Individual Defendants may also have been entitled to immunity under the official immunity doctrine. See

Southers, 263 S.W.3d at 610-11. 

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 Plaintiffs are not clear in their briefs if they are appealing the denial of one or both motion for leave to file 

a third amended petition. We assume Plaintiffs intended to appeal the denial of both motions. 
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marks omitted). In determining whether the trial court abused its discretion, we should 

consider a number of factors including: 

1) the hardship to the moving party that a denial would cause; 2) the 

reasons for the moving party’s failure to include the matter in the original 

pleadings; 3) the timeliness of the application for leave to amend; and 4) 

the hardship or injustice that granting leave to amend would cause to the 

non-moving party. See Lester v. Sayles, 850 S.W.2d 858, 869 (Mo. banc 

1993). The most common reason for denying leave to amend is the 

resultant prejudice to the non-moving party. Western Casualty and Surety 

Co. v. Kansas City Bank and Trust Co., 743 S.W.2d 578, 582 

(Mo.App.1988). 

Concerned Citizens for Crystal City, 334 S.W.3d at 526-27. 

Southers makes clear that official immunity will not protect a public employee “if 

the conduct is willfully wrong or done with malice or corruption,” and the public duty 

doctrine will not protect a public employee if the employee acts “in bad faith or with 

malice.” Southers, 263 S.W.3d at 610, 612. Plaintiffs’ knew early in the lawsuit that the 

Individual Defendants asserted they were immune from liability under the official 

immunity and public duty doctrines. To wait until slightly more than three months before 

trial to first attempt to amend the petition to add factual allegations that, if proven, would 

negate the availability to the Individual Defendants of the official immunity and public 

duty doctrines and expose the Individual Defendants to punitive damages caused the 

proposed amendment to be untimely and prejudiced the Individual Defendants in the 

presentation of their defenses. In these circumstances, the trial court’s denial of 

Plaintiffs’ request to file a third amended petition was not clearly against the logic of the 

circumstances and not so arbitrary and unreasonable as to shock our sense of justice and 

indicate a lack of careful consideration. 
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 Plaintiffs’ second point is denied.7 The trial court’s summary judgment is 

affirmed. 

Nancy Steffen Rahmeyer, J. - Opinion Author 

Gary W. Lynch, J. - Concurs 

Don E. Burrell, J. - Concurs 

 

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 In their brief, Plaintiffs indicate that they believe the trial court’s denial of their motion for leave to file a 

third amended petition is moot because the trial has been continued to allow this appeal and Plaintiffs 

intend again to ask the trial court for leave to file an amended petition following the completion of this 

appeal. We express no opinion on the merits of a post-appeal motion for leave to file an amended petition. 

We simply state that the trial court did not abuse its discretion in denying the earlier motions.