Hoffman v. United State of America et al

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant City of Wentzvilles Motion to Dismiss ECF 12 is DENIED. Signed by District Judge John A. Ross on 8/26/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROSE HOFFMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA and
CITY OF WENTZVILLE,
Defendants.

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No. 4:13-CV-761 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant City of Wentzville’s Motion to Dismiss
First Amended Complaint (ECF 12), and Plaintiff Rose Hoffman’s opposition thereto (ECF 13).1
Defendant City of Wentzville has not filed a reply brief, and the time in which to do so has
expired. Accordingly, the matter is ready for disposition. For the reasons stated below, the
motion will be DENIED.
STANDARD OF REVIEW
In ruling on a motion to dismiss, the Court “must accept the allegations contained in the
complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted); see also Eckert v. Titan Tire
Corp., 514 F.3d 801, 806 (8th Cir. 2008) (citing Luney v. SGS Auto Servs., Inc., 432 F.3d 866,
867 (8th Cir. 2005)). To survive a motion to dismiss, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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Defendant United States of America has also filed a response, in which it states that at the present time it is
unaware of information which would be relevant to the matter at issue in Defendant City of Wentzville’s motion.
(ECF 14.)

570 (2007) (abrogating the “no set of facts” standard for Rule 12(b)(6) found in Conley v.
Gibson, 355 U.S. 41 (1957)). Therefore, a plaintiff’s obligation to provide the grounds of her
entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 555.
FIRST AMENDED COMPLAINT
On July 9, 2013, Plaintiff filed her First Amended Complaint. (ECF 8.) She alleges that
on February 12, 2011, she exited the postal office on East Allen Street in Wentzville, Missouri,
and, while on the sidewalk in front of the building, slipped on a patch of ice that had
accumulated in a large crack. Count I asserts a claim of negligence against Defendant United
States of America, and Count II asserts a claim of negligence against Defendant City of
Wentzville. Relevant to the matter now before the Court, Plaintiff alleges in ¶24 that “Defendant
City of Wentzville was given proper notice of the occurrence in accordance with RSMo §
79.480.”
DISCUSSION
Defendant City of Wentzville sets forth one argument to support its motion to dismiss.
Defendant City of Wentzville argues that, to maintain the instant claim against it, Mo. Rev. Stat.
§ 79.480 requires Plaintiff to have provided written notice to its mayor within 90 days of the
alleged occurrence. Defendant City of Wentzville argues that Plaintiff fails to allege sufficiently
such notice in the First Amended Complaint, and therefore her claim against it must be dismissed
with prejudice.
Plaintiff opposes Defendant City of Wentzville’s motion. Plaintiff argues that the notice
requirement is to be construed strictly against the municipality and that substantial compliance
with the notice requirement is sufficient. Plaintiff states that a St. Charles County ambulance

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and the City of Wentzville Police Department were present at the scene, and argues that proper
notice was therefore received by Defendant City of Wentzville. Plaintiff additionally contends
that, at the very least, the motion should be denied so that discovery on the matter may proceed.
Under Missouri law,
No action shall be maintained against any city organized under the laws of this
state as a city of the fourth class on account of any injuries growing out of any
defect or unsafe condition of or on any bridge, boulevard, street, sidewalk or
thoroughfare, in said city until notice shall first have been given in writing to the
mayor of said city, within ninety days of the occurrence for which said damage is
claimed, stating the place where, the time when such injury was received, and the
character and circumstances of the injury, and that the person so injured will
claim damages therefor from such city.
Mo. Rev. Stat. § 79.480. This statute requires that the notice be “in writing,” although a plaintiff
“need not have been the person who actually reduced the notice to writing.” Kirkpatrick v. City
of Glendale, 99 S.W.3d 57, 59 (Mo. Ct. App. 2003). Further, an authorized agent of a mayor,
such as a city manager or a mayor’s secretary, may be served in place of a mayor. See id.; but
see Frogge v. Nyquist Plumbing & Ditching Co., 453 S.W.2d 913, 915 (Mo. 1970) (“There is . . .
no contention that the mayor had designated the city clerk as his authorized agent upon whom
notices directed to him could be served. It therefore follows that § 79.480 was not complied with
unless service of the papers upon the city clerk can be said to constitute notice in writing to the
mayor of said city. We . . . conclude[] that the statute was not complied with. As we have
heretofore indicated, the requirement of the statute that notice in writing be given the mayor is to
be strictly construed.”). Moreover, notice is sufficient if a defendant city is “informed of the
place, time, and circumstances of how plaintiff’s injuries occurred, as well as the nature of those
injures and the defect in the sidewalk which caused them,” and it is “not necessary for the notice
to expressly state that plaintiff was going to claim damages from the [c]ity.” Kirkpatrick, 99
S.W.3d at 60. “[S]ufficiency of the notice is for the court and not the jury” to decide. Travis v.

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Kansas City, 491 S.W.2d 521, 524 (Mo. 1973) (considering a similar notice requirement
contained in Mo. Rev. Stat. § 82.210).
In Kirkpatrick, the plaintiff fell and injured himself while on a sidewalk in Glendale,
Missouri. Kirkpatrick, 99 S.W.3d at 58. After the incident, he reported the fall to the city
manager and received treatment from a fire department paramedic. Id. The paramedic filed a
written incident report, and the city manager requested that a building inspector examine the
sidewalk. Id. A Missouri court of appeals found that § 79.480 had been satisfied, and reversed a
trial court’s grant of summary judgment in the defendant’s favor on the issue. Id. at 60.
In this case, Plaintiff alleges satisfaction of the relevant Missouri notice statute. Further,
in her opposition to Defendant City of Wentzville’s motion, she explains that this notice
allegation is based on the presence of an ambulance and the Wentzville Police Department at the
scene of the occurrence and her belief proper notice was therefore received.
The Court agrees with Plaintiff that the instant motion is premature at this stage in the
litigation. Accordingly, she will be allowed an opportunity to conduct discovery regarding,
among other things, whether sufficient notice was received by Defendant City of Wentzville. If,
after discovery, Defendant City of Wentzville continues to believe that notice was insufficient, it
may file a motion for summary judgment on the issue.
For the above stated reasons,
IT IS HEREBY ORDERED that Defendant City of Wentzville’s Motion to Dismiss
(ECF 12) is DENIED.

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Dated this 26th day of August, 2013.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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