Sovereign immunity in effect

537.600. Sovereign immunity in effect — exceptions — cause of action for damages, liability — definitions. — 1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

(1) Injuries directly resulting from the negligent acts or omissions by public employees, or an agent of the Missouri department of transportation, arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, 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, or an agent of the Missouri department of transportation, within the course of his employment, created the dangerous condition or a public entity, or an agent of the Missouri department of transportation, 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. In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective, or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.

2. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.

3. A statutory cause of action for damages against an agent of the Missouri department of transportation is hereby created, replacing any such common law cause of action against a private contractor, subcontractor, engineer, or employee thereof for liability of claims arising from design, condition, or maintenance of a Missouri department of transportation project after execution of a contract to perform work but prior to the commencement of construction activities on the project site and for when construction activities on the project site are approved and accepted by the Missouri department of transportation. The Missouri department of transportation shall be solely liable for personal injury or death arising out of instances after execution of a contract to perform work but prior to the commencement of construction activities and after construction activities on the project site are approved and accepted by the Missouri department of transportation.

4. The immunity provided in subsection 3 of this section shall not apply when any of the following conditions exist:

(1) The work is so defective that it creates an imminent danger to third parties;

(2) A defect in the work was concealed and not discoverable by a reasonable inspection by the state highways and transportation commission;

(3) The agent of the Missouri department of transportation knew of the dangerous condition and did not disclose it to the state highways and transportation commission; or

(4) The plans or specifications followed were so imperfect or improper that the agent of the Missouri department of transportation should have known the work to be done thereunder would result in an unsafe condition.

5. The Missouri standard specifications for highway construction, or its successor, as published by the state highway and transportation commission shall not include provisions requiring a contractor to indemnify or defend the state, the state highways and transportation commission, employees of the Missouri department of transportation, or an agent of the Missouri department of transportation prior to the commencement of work under a contract. No contractor shall be required to agree to an indemnification or a duty to defend provision as a condition of any agreement to perform work for the state highways and transportation commission.

6. The term "public entity" as used in this section shall include any multistate compact agency created by a compact formed between this state and any other state which has been approved by the Congress of the United States.

7. The term "agent of the Missouri department of transportation" as used in this section shall mean any private contractors, subcontractors, engineers or the employees thereof performing work in accordance with the plans and specifications approved by the Missouri department of transportation.

8. The term "final inspection" as used in this section shall mean the project engineer has made an inspection of the project and determined that all construction contemplated by the contract has been completed to the engineer's satisfaction, and the engineer has notified the contractor in writing of acceptance for maintenance as of the date of that inspection, with the exception of items covered by item specific performance bonds.

9. The phrase "after execution of a contract to perform work but prior to the commencement of construction activities" as used in this section shall apply as a period of time when a contract is fully executed and signed by an agent of the Missouri department of transportation and the Missouri department of transportation but shall end when the agent of the Missouri department of transportation first begins performing work pursuant to the terms of the contract, including the furnishing of labor, material, equipment, and other incidentals necessary or convenient to the successful completion of the project and the carrying out of duties and obligations imposed by the contract.

10. The phrase "construction activities on the project site are approved and accepted by the Missouri department of transportation" as used in this section shall apply as a fixed date in time when all corrections are completed by an agent of the Missouri department of transportation and a final inspection has been conducted by the engineer for the Missouri department of transportation. Approval and acceptance of the construction activities on the project site shall be deemed approved and accepted for partial or full acceptance of the work on a project site upon the expiration of twenty business days after conducting the final inspection by the Missouri department of transportation.