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Court of Appeals of Missouri, Western District, Division Three
March 6, 2018, Opinion Filed
[*367] J.M., through his next friend, appeals from the trial court's entry of summary judgment in favor of Lee's Summit School District R-VII ("District") and Douglas DeMarco ("DeMarco"). J.M. argues that the trial court erred in granting summary judgment in favor of the District because sovereign immunity is inapplicable because the injury was caused by a dangerous condition of property under section 537.600.1(2)1 Further, J.M. argues that the trial court erred in granting summary judgment in favor of DeMarco because he was not entitled to protection under the official immunity doctrine as his actions were ministerial rather than discretionary. We affirm in part and reverse and remand in part.
Facts and Procedural History2
J.M. attended Boy's Club for the academic year of 2014-2015. Boy's Club is an afterschool program for 5th and 6th grade boys at Prairie View Elementary, a school within the District. Boy's Club is sponsored and led by Prairie View Elementary gym teacher, Felton Bishop ("Bishop"). [**2] Bishop is assisted by DeMarco, a volunteer for the District. DeMarco was under the supervision of Bishop.
On the last day of Boy's Club for the academic year, the boys were going to play softball. Prior to playing, Bishop and DeMarco gathered the boys into the gym, and Bishop explained how to play the game and the safety rules the boys were to follow. This included a mandate that any person playing the catcher position was required to wear the facemask and chest protector provided by the District. The boys were also instructed to drop the bat after a hit instead of throwing it, as the flying bats were a danger to others.
After the instruction, the boys were split into two groups, half with Bishop and half [*368] with DeMarco on an adjacent field. J.M. was playing on the field supervised by DeMarco. When it was J.M.'s turn to play catcher, he first tried on one facemask, which was too small for his face. J.M. then tried on another facemask, which was too big for his face. J.M. attempted unsuccessfully to tighten the larger facemask so that he could use it. J.M. took the facemask to DeMarco to have it tightened. DeMarco was also unable to adjust the facemask to make it fit J.M. DeMarco instructed [**3] J.M. to play catcher without the facemask but stand further back, closer to the fence behind the plate.
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545 S.W.3d 363 *; 2018 Mo. App. LEXIS 225 **; 2018 WL 1161134
J.M., MINOR CHILD, THROUGH HIS NEXT FRIEND, SARA GRANT, Appellant, v. LEE'S SUMMIT SCHOOL DIST. AND DOUGLAS DEMARCO, Respondents.
Prior History: [**1] Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Jack R. Grate, Judge.
facemask, argues, immunity, summary judgment, dangerous condition of property, dangerous condition, catcher, playing, ministerial, trial court, softball, grant summary judgment, affirmative defense, discretionary, supervise, sovereign immunity, public entity, wear, protective equipment, public employee, board policy, school board, waived, bat
Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Legal Entitlement, Materiality of Facts, Evidentiary Considerations, Absence of Essential Element, Burdens of Proof, Movant Persuasion & Proof, Torts, Public Entity Liability, Immunities, Premises & Property Liability, General Premises Liability, Dangerous Conditions, Immunities, Sovereign Immunity, Governments, Legislation, Interpretation, Responses, Defenses, Demurrers & Objections, Affirmative Defenses, Qualified Immunity