CLESLIE DAVID ALLEN, ) 

 ) 

 Plaintiff-Appellant, ) 

 ) 

vs. ) No. SD33843 

 ) 

M.W. TRADER and IVIE A. WARREN, ) Filed: July 28, 2015 

 ) 

 Defendants-Respondents. ) 

 

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY 

Honorable J. Dan Conklin, Circuit Judge 

AFFIRMED 

 Cleslie David Allen ("Plaintiff") appeals from the trial court's entry of 

summary judgment in favor of Missouri State Highway Patrol Troopers Mark W. 

Trader ("Trooper Trader") and Ivie Warren ("Trooper Warren") (collectively 

"Defendants") on Plaintiff's petition for damages arising out of an automobile 

accident. We disagree with Plaintiff's arguments and affirm the trial court's 

judgment. 
2 

Standard of Review 

 "Appellate review of summary judgment is de novo." Southers v. City 

of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008). "Summary judgment 

is appropriate where the moving party has demonstrated, on the basis of facts as 

to which there is no genuine dispute, a right to judgment as a matter of law." Id. 

In conducting this review, the appellate court must view "the record in the light 

most favorable to the party against whom judgment was entered." Id.

Factual and Procedural Background 

 The following recitation of facts is drawn from the parties' statements of 

uncontroverted material facts, viewed in the light most favorable to the nonmoving party. See id. In 1996, Plaintiff worked as a tow truck driver for Brines 

Tow Truck Service. On September 2 of that year, there was a two-car accident 

near the intersection of Highway 13 and Farm Road 94 in Greene County. 

 Defendants responded to the scene of the accident. One of the vehicles 

involved in the accident was partially in the roadway blocking traffic. By the time 

Plaintiff arrived at the accident scene, there were traffic cones in the roadway to 

direct traffic away from the obstruction. 

 Upon arriving, Plaintiff spoke with Trooper Trader, asked which vehicle he 

should take, and then proceeded to load up the vehicle. Then Plaintiff again 

spoke with Trooper Trader and asked where the accident debris was. Trooper 

Trader responded that it was near the intersection. Plaintiff told Trooper Trader 

that he was going to drive up to the next intersection to turn around and then 

park his truck on the other side of the road. Plaintiff never spoke to Trooper 

Warren that evening. 
3 

 Trooper Warren did not believe there was any debris in the roadway that 

would impede traffic or that needed to be cleaned up. When Trooper Warren saw 

the tow truck pull away, she ordered some personnel from the fire department to 

remove the orange traffic cones to get traffic moving. 

 Plaintiff drove his tow truck around to the other side of the highway as he 

had explained to Trooper Trader. Plaintiff then got out of his truck and began to 

sweep debris from the roadway. While he was sweeping up debris, an oncoming 

car struck Plaintiff. 

 Plaintiff sued the driver of the oncoming car, Trooper Trader, Trooper 

Warren, and the State of Missouri, seeking damages for injuries he sustained in 

the accident. As relevant to this appeal, Plaintiff claimed Defendants were 

negligent in reopening the roadway while Plaintiff was still working. 

 On September 23, 2004, the claim against the State of Missouri was 

dismissed in accordance with a writ issued from this Court. State ex rel. 

Nixon v. Westbrooke, 143 S.W.3d 737 (Mo. App. S.D. 2004). Later, 

Defendants moved for summary judgment, arguing they were protected by the 

doctrine of official immunity and by the public duty doctrine. 

 The trial court granted the motion. In that judgment, the trial court stated 

as follows: 

The Court grants summary judgment in favor of Defendants . . . 

because they have official immunity and are protected by the public 

duty rule, as more fully set forth in the legal memorandum of 

Defendants filed in support of their Motion. The State of Missouri 

has sovereign immunity from suit. The claims do not fall within 

any exception to sovereign immunity under § 537.600, RSMo. 

These claims do not arise from the operation of a motor vehicle by 

[Defendants], and does not arise from the dangerous condition of 

any property of the State of Missouri. 
4 

 Plaintiff thereafter voluntarily dismissed his claim against the driver of the 

oncoming vehicle, and this appeal followed. 

Point I: Sovereign Immunity 

 In his first point, Plaintiff argues the trial court erred in granting summary 

judgment in favor of Defendants because Defendants are not entitled to sovereign 

immunity. This argument is without merit because it misinterprets the trial 

court's order. 

 "We will not convict a trial court of an error it did not commit." Hunt v. 

Hunt, 65 S.W.3d 572, 577 (Mo. App. S.D. 2002). In the present case, the trial 

court's analysis of sovereign immunity referred to the State of Missouri only. Its 

discussion of sovereign immunity simply referred back to the prior dismissal of 

the claims against the State of Missouri pursuant to this Court's writ in State ex 

rel. Nixon v. Westbrooke, 143 S.W.3d 737 (Mo. App. S.D. 2004). That is, the 

trial court did not make the conclusion Plaintiff challenges in this point—that 

Defendants were protected from suit under the doctrine of sovereign immunity. 

The judge said they had official immunity. The trial court did not commit the 

error Plaintiff challenges in his first point so we will not convict the trial court of 

that error. 

 Plaintiff's first point is denied. 

Point II: Official Immunity 

 In his second point, Plaintiff claims the trial court erred in granting 

summary judgment to Defendants because they were not entitled to official 

immunity as the challenged actions involved ministerial duties. Plaintiff is 

incorrect. 
5 

 Official immunity "protects public employees from liability for alleged acts 

of negligence committed during the course of their official duties for the 

performance of discretionary acts." Southers, 263 S.W.3d at 610. The rationale 

for this rule is that "society's compelling interest in vigorous and effective 

administration of public affairs requires that the law protect those individuals 

who, in the face of imperfect information and limited resources, must daily 

exercise their best judgment in conducting the public's business." State ex rel. 

Hill v. Baldridge, 186 S.W.3d 258, 260 (Mo. banc 2006). 

 To determine whether a public employee is entitled to official immunity 

for an alleged act of negligence, Missouri courts look at whether the act was 

committed in furtherance of a discretionary duty or a ministerial duty. 

Southers, 263 S.W.3d at 610. This determination is governed by the amount of 

reason and judgment necessary in performing the act. Davis v. Lambert-St. 

Louis Intern. Airport, 193 S.W.3d 760, 763 (Mo. banc 2006) "A discretionary 

act requires the exercise of reason in the adaptation of means to an end and 

discretion in determining how or whether an act should be done or course 

pursued." Southers, 263 S.W.3d at 610. A ministerial act is an act which is 

clerical in nature and which the officer must complete in a prescribed way when 

certain prescribed facts occur, without reference to his or her own judgment. 

Id. "To discern whether an act is ministerial or discretionary, the court looks to 

three factors: (1) the nature of the duties; (2) how much policymaking or 

professional expertise and judgment the act involves; and (3) the consequences of 

withholding immunity." Davis, 193 S.W.3d at 763. 
6 

 Based on these general principles, Missouri courts have frequently held 

that public safety officers are entitled to official immunity with respect to acts 

undertaken in response to emergencies or accidents. See, e.g., Southers, 263 

S.W.3d at 619; Davis, 193 S.W.3d at 763; Hill, 186 S.W.3d at 260; Green v. 

Denison, 738 S.W.2d 861, 865-66 (Mo. banc 1987) (overruled on other grounds 

by Davis, 193 S.W.3d at 763); Rhea v. Sapp, No. WD77301, 2015 WL 965918, 

*5 (Mo. App. W.D. March 3, 2015); Deuser v. King, 24 S.W.3d 251, 254 (Mo. 

App. E.D. 2000); Costello v. City of Ellisville, 921 S.W.2d 134, 136-37 (Mo. 

App. E.D. 1996) (overruled on other grounds by Davis, 193 S.W.3d at 763); 

Fonseca v. Collins, 884 S.W.2d 63, 67 (Mo. App. W.D. 1994). Here, 

determining when it was safe to open the road to traffic after completing the 

investigation of the first accident was part of Defendants' response to the first 

accident, so it was a discretionary act for which Defendants are entitled to official 

immunity. 

 Plaintiff's argument to the contrary rests primarily on analogies to 

Jungerman v. City of Raytown, 925 S.W.2d 202 (Mo. banc 1996) 

(abrogated on other grounds by Southers, 263 S.W.3d at 610), and 

Richardson v. Burrow, 366 S.W.3d 552 (Mo. App. E.D. 2012). Plaintiff's 

reliance on those cases is misplaced because neither of those cases involved 

official responses to traffic accidents. Jungerman involved an official's failure 

to follow a booking procedure in a jail, while Richardson involved a 

paramedic's failure to follow the prescribed procedure for intubating a patient. 

Jungerman, 925 S.W.3d at 206; Richardson, 336 S.W.3d at 553-54. Those 
7 

situations are not sufficiently similar to traffic accidents to provide useful 

guidance in this case. 

 The trial court did not err in determining that Defendants were entitled to 

official immunity under the facts of this case. Plaintiff's second point is denied. 

Point III: Public Duty Doctrine 

 In his third and final point, Plaintiff claims the trial court erred in granting 

Defendants summary judgment based on the public duty doctrine. However, 

because Defendants are entitled to summary judgment on the basis of official 

immunity, we need not consider whether the public duty doctrine applies in this 

case. See Conway v. St. Louis County, 254 S.W.3d 159, 166 (Mo. App. E.D. 

2008). 

Decision 

 The trial court's judgment is affirmed. 

MARY W. SHEFFIELD, C.J. – OPINION AUTHOR 

DANIEL E. SCOTT, P.J. – CONCURS 

JEFFREY W. BATES, J. – CONCURS