When an Outdated Design Finally Needs to be Put to Bed:
The Government’s “State of the Art” Defense in Road Design Cases
II. Sovereign Immunity in Missouri
The Missouri Supreme Court struck down sovereign immunity in Jones v. State Highway Commission5 and the Missouri Legislature quickly responded by enacting RSMo., 537.600. Section 537.600 reinstated sovereign immunity for governmental entities unless a plaintiff’s injury is the result of the negligent operation of a motor vehicle by a public employee, or the public entity’s property is in a dangerous condition6. Because liability for torts is the exception to the general rule of sovereign immunity, the plaintiff must affirmatively plead that the government entity has waived sovereign immunity.7
Section 537.600 waives sovereign immunity for a dangerous condition if the plaintiff can show.
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. 8
The waiver of sovereign immunity for dangerous conditions “establishes an absolute waiver of immunity . . . and abolishes any distinction between governmental and proprietary acts as a test of governmental liability.”9 The negligence of a driver will not defeat a claim based on a negligent design theory.10 Instead, the evidence will only allow MHTC to apportion fault between itself and the driver.11 A plaintiff suing MHTC (or any other governmental entity which maintains a road) for negligent design of a roadway or highway may still not be successful even if he has established all of the requirements for a “dangerous condition” listed in Section 537.600.1(2) since MHTC still has the “state of the art” defense.
5 Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977).
6 537.600, RSMo 1985.
7 Topps v. City of Country Club Hills, 272 S.W.3d 409 (Mo. App. E.D. 2008); Leathers v. Missouri Highway and Transp. Com’n, 961 S.W.2d 83 (Mo. App. W.D. 1997).
8 537.600.1(2), RSMo 1985.
9 Linton v. MHTC, 980 S.W.2d 4 (Mo. App. E.D. 1998).
10 Cole v. MHTC, 770 S.W.2d 296 (Mo. App. W.D. 1989).
11 Id.
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