## Facts

- Stanford Richardson, Sr. suffered respiratory distress and received pre-hospital emergency care from Bryan Burrow, an emergency medical technician employed by the City of St. Louis Fire Department.
- The widow alleged Burrow improperly placed an endotracheal tube into the esophagus rather than the trachea and failed to recognize the error, causing an anoxic brain injury and death.
- The petition alleged the City’s Bureau of Emergency Medical Services operated within the fire department and offered EMS services to the public “for a fee” as a “commercial enterprise.”
- The widow sued the City for negligent training/supervision and vicarious liability for employee negligence.
- The widow sued Burrow individually for professional negligence and sought punitive damages, alleging willful, wanton conduct or conscious disregard of her rights.

## Issues

1. Whether the petition pleaded facts sufficient to avoid the City’s sovereign immunity under Missouri law, including by alleging EMS was a proprietary/commercial function or by alleging a statutory waiver under § 537.600.
2. Whether Burrow was shielded by official immunity because the alleged conduct involved discretionary acts within his authority, and if so, whether pleaded malice or bad faith removed that protection.
3. Whether the public duty doctrine barred the individual claim against Burrow.

## Decision

- The appellate court affirmed in part, reversed in part, and remanded.
- The dismissal of claims against the City was affirmed on sovereign-immunity grounds.
- The dismissal of claims against Burrow was reversed; the allegations were sufficient at the pleading stage to proceed despite an official-immunity defense.
- The case was remanded for further proceedings on the claims against Burrow.

## Legal Principles

- Under § 537.600, public entities are immune from negligence liability except to the extent immunity is expressly and strictly waived.
- Pleading that a municipal service is “commercial” or provided “for a fee,” without supporting facts fitting a recognized waiver or exception, is insufficient to overcome sovereign immunity at the motion-to-dismiss stage.
- Official immunity protects public employees from liability for negligence in performing discretionary acts within the scope of authority, but not for ministerial acts or for conduct alleged and later proved to be in bad faith or with malice.
- Allegations of willful, wanton conduct or conscious disregard supporting punitive damages can sufficiently plead malice or bad faith to defeat official immunity at the pleading stage.

## Conclusion

The court held that the petition did not plead a recognized waiver or exception to overcome the City’s sovereign immunity for EMS-related negligence claims, but it allowed the suit against the EMT to proceed because allegations of willful, wanton conduct and conscious disregard were sufficient to plead malice or bad faith that falls outside official immunity at the motion-to-dismiss stage.


Richardson v. City of St. Louis, 293 S.W.3d 133 (Mo. Ct. App. E.D. 2009)