Missouri Court of Appeals Eastern District rules Six Flags not

Daily Record and the Kansas City Daily News-Press, Jul 23, 2008 by Donna Walter

Neither Six Flags nor the city of Eureka can be held liable for an accident that killed five family members eight years ago.

The Vonder Haars, visiting from Breese, Ill., were on their way to Six Flags St. Louis on the morning of July 31, 2000, when their vehicle hit a car that had stopped in front of them in a traffic jam about a mile before the park exit. The family car then crossed into the left lanes of Interstate 44 and was hit by a tractor-trailer.

Kyle Vonder Haar, then 12, was the only survivor. The collision left him brain-injured.

Vonder Haar, represented by Gretchen Garrison and Joan M. Lockwood of Gray, Ritter & Graham, sued Six Flags, the city of Eureka, the Missouri Department of Transportation and DTI Lebanon Subsidiary Inc., the Lebanon, Mo., trucking company that owned the tractor-trailer.

MoDOT and DTI settled with Vonder Haar. Lockwood said the settlement agreements are confidential.

St. Louis County Judge Robert S. Cohen granted summary judgment in favor of Six Flags and Eureka. On Tuesday, the Missouri Court of Appeals Eastern District upheld Cohen's decision.

Lockwood said the plaintiff intends to seek transfer to the Missouri Supreme Court.

According to the Court of Appeals, however, Vonder Haar doesn't have a case.

"No member of this court ignores the gravity of Appellant's tragic, indeed heartbreaking, loss. As a legal matter, however, we must conclude that Appellant has already recovered from the proper defendants," Judge Booker T. Shaw wrote for the unanimous panel.

Although MoDOT is responsible for maintaining the highway, Vonder Haar alleged Six Flags, too, owed a duty to him and his family. He said the exit was an extension of the park's private driveway because most of those leaving the highway at that location were going to Six Flags. He also argued Six Flags marketed the park and provided driving directions to the park - affirmative acts that created a duty to maintain the public road. The Court of Appeals rejected both arguments.

The court said it wouldn't have made a difference if the park had opened additional parking that morning - as the plaintiff suggested - because traffic inside Six Flags' entrance lanes was flowing freely.

Vonder Haar also argued that the accident was foreseeable, but the cases the plaintiff relied on all dealt with defendants who could take some sort of action to prevent harm. "Here, even if Six Flags foresaw the danger, MoDOT controlled the roadways, signage, and stoplights," Shaw wrote.

Again and again, the court returned to a few basic facts: The accident occurred on a federal highway maintained by MoDOT that Six Flags had no control over. MoDOT's exclusive control of the highway also relieved the city of liability.

In addition, the city is protected by sovereign immunity, the court said, rejected Vonder Haar's argument that Eureka waived its sovereign immunity defense because it sometimes uses city police to direct traffic at the intersections leading to the park.

Reed W. Sugg and Timothy C. Sansone, both of Sandberg Phoenix & von Gontard, represented Six Flags. Sugg was out of town Tuesday and could not be reached for comment, and Sansone did not return a phone call requesting comment. The city's attorney, William A. Hellmich II, of King, Krehbiel, Hellmich, Hentz & Borbonus, also did not return a call seeking comment.