PATRICIA L. COHEN, Judge.
Trina Dibrill (Plaintiff) by her next friend and mother, Annginette Wheeler, appeals the trial court judgment in favor of Normandy Nursing Center, Kerry Kaufmann, and Clara Mayes (Defendants). Plaintiff claims the trial court: (1) erred
On February 23, 2010, Plaintiff filed a nine-count petition against Defendants and Santonio McCoy, a former housekeeper at Normandy, seeking damages for injuries caused by McCoy's alleged rape of Plaintiff. At the time of the alleged rape, Plaintiff was a resident of Normandy Nursing Center (Normandy), defendant Kaufmann owned Normandy, and defendant Mayes was Normandy's director of nursing. In her petition, Plaintiff asserted claims of negligence, assault and battery, negligent hiring and retention, negligent supervision, false imprisonment, respondeat superior, and intentional and negligent infliction of emotional distress. Defendants filed a motion for a more definite statement and a motion to strike Plaintiff's claims for punitive damages. Before the court could rule on Defendants' motion, Plaintiff filed a first amended petition. On May 25, 2010, the trial court granted Defendants' motion for more definite statement and struck Plaintiff's claims for punitive damages.
Plaintiff filed a second amended petition on June 4, 2010 alleging actions for: negligence against Defendants and McCoy; assault and battery against McCoy; negligent hiring and retention against Defendants; negligent supervision against Defendants; false imprisonment against McCoy; respondeat superior against Defendants; and intentional infliction of emotional distress against McCoy, Kaufmann, and Mayes. In response, Defendants filed a motion to dismiss Plaintiff's causes of action for negligent hiring and retention, respondeat superior, and intentional infliction of emotion distress. Defendants also filed a motion for more definite statement and motions to strike Plaintiff's claims for attorneys' fees and punitive damages. On July 22, 2010, the trial court: dismissed Plaintiff's claims for negligent hiring, negligent supervision, respondeat superior, and intentional and negligent infliction of emotion distress; struck Plaintiff's claims for punitive damages and attorneys' fees; and granted Defendants' motion for more definite statement.
On August 11, 2010, Plaintiff filed a third amended petition, to which Defendants responded with additional motions to dismiss and motions for more definite statement. On November 30, 2010, the trial court dismissed Plaintiff's third amended petition without prejudice for failure to file a healthcare affidavit.
On December 22, 2010, Plaintiff re-filed her petition stating claims for: negligence per se against Normandy, Kaufmann, and Mayes (Counts I, II, III); breach of fiduciary duty against Kaufmann and Mayes (Count IV); battery against McCoy (Count V); assault against McCoy (Count VI); negligent hiring against Defendants (Count VII); false imprisonment against McCoy (Count VIII); negligent supervision against Defendants (Count IX); respondeat superior against Defendants (Count X); and aggravating circumstances/punitive damages against Defendants and McCoy (Count XI).
Plaintiff filed a motion to amend and/or alter the trial court's judgment of June 15, 2011, and the trial court heard arguments on the motion on September 16, 2011. While Plaintiff's motion to amend and/or alter the judgment was pending, Plaintiff filed a notice of appeal. After this court issued an order to show cause, Plaintiff filed with the trial court a motion to certify the entire court file as a final order/judgment pursuant to Rule 74. After hearing arguments and receiving each party's proposed orders, the trial court issued an order on January 13, 2012 stating:
Plaintiff appeals.
Rule 55.27(a)(6) allows a defendant to file a motion to dismiss a plaintiff's petition for failure to state a claim upon which relief can be granted. Rule 55.27(a)(6); Capitol Group, Inc. v. Collier, 365 S.W.3d 644, 647 (Mo.App. E.D.2012). "A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition." Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). When considering whether a petition fails to state a claim upon which relief can be granted, we review the petition "in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010) (quotation omitted). In so doing, we accept as true all properly pleaded facts, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader. Id. Our review of a dismissal for failure to state a claim is de novo. Miles ex rel. Miles v. Rich, 347 S.W.3d 477, 481 (Mo.App. E.D.2011).
We review the denial of leave to amend a petition for an abuse of discretion, and we will not disturb the trial court's decision absent a showing that the trial court palpably and obviously abused its discretion. Zubres Radiology v. Providers Ins. Consultants, 276 S.W.3d 335, 341-42 (Mo.App. W.D.2009) (quotation omitted). A ruling constitutes an abuse of discretion when "it is clearly against the logic of the circumstances and is so arbitrary
In her first point on appeal, Plaintiff claims the trial court erred in dismissing with prejudice each count of her petition. More specifically, Plaintiff contends that her petition stated claims upon which relief can be granted and was sufficient to withstand a motion to dismiss.
In her petition, Plaintiff alleged three counts of negligence per se — Count I against Normandy, Count II against Kaufmann, and Count III against Mayes. Plaintiff based her negligence per se claim against Defendant Normandy on violations of state regulations issued by the Missouri Department of Health and Senior Services pursuant to its authority under the Missouri Omnibus Nursing Home Act (ONHA). Mo.Rev.Stat. § 198.079.
In their motion to dismiss and in their brief, Defendants argued that Plaintiff failed to state claims for negligence per se because she "failed to allege that: 1) she is within the class of persons intended to be protected by the regulations she cites, and 2) the injury alleged is of the nature that the regulations she cites were designed to prevent." Where, as here, the trial court did not provide reasons for its dismissal of the petition, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss, and we will affirm if dismissal was appropriate on any grounds stated therein. Fenlon v. Union Elec. Co., 266 S.W.3d 852, 854 (Mo.App. E.D.2008).
"[T]he violation of a statute, which is shown to be the proximate cause of the injury, is negligence per se." Imperial Premium Fin., Inc. v. Northland Ins. Co., 861 S.W.2d 596, 599 (Mo.App. W.D. 1993). Negligence per se arises when the legislature pronounces in a statute what the conduct of a reasonable person must be and the court adopts the statutory standard of care to define the standard of conduct of a reasonable person. Burns v. Frontier II Props. Ltd. P'ship, 106 S.W.3d 1, 3 (Mo.App. E.D.2003). "When a case based on negligence per se is submitted to the jury, the standard of care is omitted because the statutory violation itself constitutes a breach of the standard of care." Id. at 4. In addition to legislative enactments, courts may adopt the requirements of municipal ordinances and administrative regulations "as the standard of conduct necessary to avoid liability for negligence." RESTATEMENT (SECOND) OF TORTS § 285 cmt. d (1965). To establish a claim of negligence per se, the plaintiff must plead the following four elements: (1) the defendant violated a statute or regulation;
Missouri courts have not specifically considered whether a nursing home resident such as Plaintiff is within the class of persons intended to be protected by the cited regulations. However, in Stiffelman v. Abrams, 655 S.W.2d 522 (Mo. banc 1983), the Supreme Court determined that a ninety-year-old nursing home resident who was severely beaten by employees of the nursing home was protected by the provisions of the Missouri Omnibus Nursing Home Act (ONHA). Stiffelman, 655 S.W.2d at 531. Likewise, although Missouri courts have not expressly determined whether rape is an injury of the nature the regulations were designed to prevent, the Supreme Court was very clear in Stiffelman that the legislature, through the enactment of the ONHA, "intended to provide a remedy for physical and emotional abuse in the nursing home...." Id.; see also Estate of French v. Stratford House, 333 S.W.3d 546, 562 (Tenn.2011) ("The two prerequisites for a negligence per se claim are present here: Ms. French belonged to the class of persons the federal and state nursing home regulations were designed to protect, and her injuries were the type that the regulations were designed to prevent.").
Plaintiff's petition alleged that Plaintiff was "an individual, disabled vulnerable person, residing in St. Louis County, Missouri at the Normandy Nursing Center" and she "was unable to provide for her own health and safety as a result of severe mental retardation and cerebral palsy, which rendered her mentally and physically disabled." Plaintiff further pleaded that Defendants violated numerous regulations designed to protect residents of skilled nursing and long-term care facilities, including, inter alia: 19 CSR 30-88.010(22), providing that "[e]ach resident shall be free from abuse," defined as "the infliction of physical, sexual, or emotional injury or harm"; 19 CSR 30-85.042(16), providing that "[a]ll persons who have any contact with the residents in the facility shall not knowingly act or omit any duty in a manner which would materially and adversely affect the health, safety, welfare or property of resident"; 19 CSR 30-85.042(37), requiring all facilities to "employ nursing personnel in sufficient numbers and with sufficient qualifications to provide nursing and related services which enable each resident to attain or maintain the highest practicable level of physical, mental and psychosocial well-being"; 19 CSR 30-85.042(66), providing that "[e]ach resident shall receive twenty-four (24)-hour protective oversight and supervision"; and 19 CSR 30-85.042(67), providing that "[e]ach resident shall receive personal attention and nursing care in accordance with his/ her condition and consistent with current acceptable nursing practices." Plaintiff further pleaded that Defendants violated their duty of care and, in so doing, "directly and proximately caused" Plaintiff to suffer the "severe, permanent and progressive injuries" caused by McCoy's physical assault and rape of Plaintiff.
Giving the pleadings their broadest intendment, we conclude that, contrary to Defendants' contention, Plaintiff's petition asserts facts establishing that she was a member of the class of persons the regulations were intended to protect and her
In Count IV of her petition, Plaintiff alleged that defendants Kaufmann and Mayes breached their fiduciary duty to "protect [Plaintiff] from harm and injury." To prevail on a breach of fiduciary duty claim, a plaintiff must establish that: (1) a fiduciary duty existed between the parties; (2) the defendant breached the duty; and (3) the breach caused the plaintiff to suffer harm. Western Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 15 (Mo. banc 2012). A fiduciary relationship consists of the following elements:
Roth v. Equitable Life Assur. Soc. of U.S., 210 S.W.3d 253, 260 (Mo.App. E.D.2006). Importantly, the question of whether a fiduciary or confidential relationship exists turns on "whether or not trust is reposed with respect to property or business affairs of the other." Birkenmeier v. Keller Biomedical, LLC, 312 S.W.3d 380, 391 (Mo.App. E.D.2010); see also Arnold v. Erkmann, 934 S.W.2d 621, 629 (Mo.App. E.D.1996) ("Things of value such as land, monies, a business, or other things of value must be possessed or managed by the dominant party.")
Plaintiff alleges that the following allegations establish that defendants Kaufmann and Mayes had a fiduciary duty to Plaintiff that they breached:
Defendants Kaufinann and Mayes moved to dismiss Plaintiff's breach of fiduciary duty claim on the grounds that Plaintiff failed to establish the existence of a fiduciary relationship. More specifically, Plaintiff did not plead that Kaufinann and Mayes had responsibility for Plaintiff's property or manipulated Plaintiff's actions. We agree that Plaintiff failed to support her breach of fiduciary duty claim with factual averments demonstrating the existence of a fiduciary relationship.
In Counts VII and IX, Plaintiff alleged claims of negligent hiring and negligent supervision. To establish a claim for negligent hiring, a plaintiff must allege that: (1) the employer knew or should have known of the employee's dangerous proclivities; and (2) the employer's negligence was the proximate cause of the plaintiff's injuries. Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo. banc 1997). A claim for negligent supervision may be established in circumstances where:
Id. at 247 (quoting RESTATEMENT (SECOND) OF TORTS § 317 (1965)). Both causes of action "require evidence that would cause the employer to foresee that the employee would create an unreasonable risk of harm outside the scope of his employment." Reed v. Kelly, 37 S.W.3d 274, 278 (Mo.App. E.D.2000).
In support of her claim for negligent hiring, Plaintiff alleged that: State law required Defendants to perform pre- and post-employment background checks of McCoy; McCoy had "a criminal background
Defendants moved to dismiss Plaintiff's claims of negligent hiring and negligent supervision on the grounds that Plaintiff "failed to allege a particular dangerous proclivity of McCoy or that his alleged misconduct was consistent with a particular dangerous proclivity." (emphasis original). More specifically, Defendants argued that Plaintiff failed to identify a particular proclivity or background consistent with the alleged sexual assault. In support of this argument, Defendants rely on Reed v. Kelly, 37 S.W.3d 274 (Mo.App. E.D.2001). In Reed, the plaintiff brought an action against the employee, an armed security guard, and his employer to recover damages she suffered when the employee falsely imprisoned and sexually touched her. 37 S.W.3d at 276. The plaintiff's actions against the employer were based on negligent hiring, negligent retention, and negligent supervision. Id. This court affirmed the trial court's grant of summary judgment for employer on the plaintiff's negligent hiring claim because employer's prior acts of misconduct — which involved slapping his wife and a physical altercation with a co-worker — did not "put him at risk to commit the sexual offense on plaintiff" such that the employer could be liable for negligent hiring. Id. at 277. This court also affirmed summary judgment for the employer on the plaintiff's negligent retention and negligent supervision claims because the combination of the employee's pre-employment assaults and a sexually harassing comment he made during his employment did not "put employer on notice that [the employee] had dangerous sexual propensities that it would be foreseeable that [the employee] would sexually assault a building visitor." Id. at 278; see also Stubbs v. Panek, 829 S.W.2d 544, 548 (Mo.App. W.D.1992) (affirming summary judgment on claims of negligent hiring and negligent retention because employee's pending charge for petty larceny, conviction for illegal trash dumping, and dropped charge of child abuse did not suggest dangerous proclivities that would make the employee a risk to abduct, assault, and a murder a child); Butler v. Hurlbut, 826 S.W.2d 90, 93 (Mo.App. E.D.1992) (affirming entry of
Although factually similar, Reed is procedurally distinguishable from the instant case. Reed was decided on a motion for summary judgment. By contrast, here the trial court dismissed Plaintiff's case for failure to state a claim. Whether the nature of McCoy's criminal history was such that Defendants knew or should have known that McCoy had the particular dangerous proclivity of beating and sexually assaulting a nursing home resident is a fact issue that cannot be resolved on a motion to dismiss for failure to state a claim. "Matters of foreseeability and proximate cause must be left for the court and jury after presentation of evidence." Gaines, 655 S.W.2d at 571. We therefore conclude that this consideration was not appropriate on a motion to dismiss and Plaintiff sufficiently pleaded facts establishing the elements of negligent hiring and negligent supervision.
Plaintiff also argues that the trial court erred in dismissing with prejudice Count X, alleging respondeat superior.
Under the doctrine of respondeat superior, an employer is liable for the misconduct of an employee where that employee is acting within the course and scope of his employment. State ex rel. Green v. Neill, 127 S.W.3d 677, 678-79 (Mo. banc 2004). An act is within the course and scope of employment if: (1)
In the fact section of her petition, Plaintiff alleged that, at the time McCoy assaulted her, McCoy was "an on-duty employee, functioning in the course and scope of his employment for Normandy." However, Plaintiff does not allege that McCoy committed the alleged rape "in furtherance of" Defendants' business or interests. Cf. Young v. Stensrude, 664 S.W.2d 263, 266 (Mo.App. E.D.1984) (holding that plaintiff sufficiently pleaded that employer should be vicariously liable for employee's intentional tort where plaintiff pleaded that those acts "occurred during a business meeting and were in furtherance of the [defendants'] purposes."); Scott v. St. Louis-San Francisco Ry. Co., 52 S.W.2d 459, 460-61 (Mo.App.1932) (holding that petition stated a cause of action based on the theory of respondeat superior where plaintiff alleged that defendant's employee "while in pursuit of his said employment and in furtherance thereof, unlawfully and wantonly struck plaintiff"). Furthermore, Plaintiff pleads no factual allegations supporting her conclusory allegation that McCoy was acting in the course and scope of his employment at the time of the alleged rape. See, e.g., Summer Chase Second Addition Subdivision Homeowners Ass'n v. Taylor-Morley, Inc., 146 S.W.3d 411, 418 (Mo.App. E.D. 2004) (holding the plaintiff's allegation that subcontractor "acted `on behalf' of [the defendant, general contractor] is merely a conclusory statement; it does not allege facts that, if true, establish agency or respondeat superior."). When reviewing a dismissal for failure to state a claim, we disregard conclusory allegations that are not supported by the facts. Miles ex rel. Miles v. Rich, 347 S.W.3d 477, 481 (Mo. App. E.D.2011). We therefore conclude that the trial court did not err in dismissing with prejudice Plaintiff's claim that Defendants were vicariously liable for the injuries McCoy caused Plaintiff.
Finally, Plaintiff contends that the trial court erred in dismissing with prejudice her claim for punitive damages contained in Count XI of the petition. Plaintiff and Defendants agree that Section 538.210.5 governs punitive damages in this case.
Punitive damages must be pleaded and proved. City of Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 627 (Mo.App. W.D.2009). While the request for punitive damages need not be pleaded in a separate count, "it must nevertheless appear from the complaint, either by direct averment or from necessary inference, that the act occasioning the damages was done maliciously or was the result of the willful misconduct of the defendant ...." Id. (quoting Bower v. Hog Builders, Inc., 461 S.W.2d 784, 798 (Mo.1970)). Accordingly, to state a claim for punitive damages against a health care provider, a plaintiff's petition must allege facts indicating the defendant willfully, wantonly, or maliciously injured the plaintiff by its tortious act.
Plaintiff's petition asked for punitive damages and asserted that Defendants failed to: protect her from harm or injury; maintain adequate staffing and oversight; supervise and train employees; and perform an adequate pre-employment background screening and periodic post-employment background checks on McCoy. Plaintiff further alleged that these acts were "willful, wanton, malicious and outrageous because of Kaufmann's and Mayes's reckless indifference to Plaintiff's rights and or [sic] showed Kaufmann's and Mayes's complete indifference to or conscious disregard for Plaintiff's safety."
Liberally granting Plaintiff all favorable inferences from her pleading, the petition provided sufficient facts to demonstrate that the wrongful acts complained of were done willfully, wantonly, or maliciously. We find that the facts, coupled with the allegation that such entitled Plaintiff to punitive damages, fairly informed Defendants of the nature of the demand. See, e.g., City of Greenwood, 299 S.W.3d at 627. We therefore conclude that the trial court erred in dismissing for failure to state a claim Plaintiff's request for punitive damages. Point I is granted in part and denied in part.
In her second point on appeal, Plaintiff claims the trial court abused its discretion in denying her leave to amend her petition. Specifically, Plaintiff contends that her proposed first amended petition included factual allegations that were not available at the time of the initial filing, the amendment was timely and would not have prejudiced Defendants, and the trial court's denial of her motion for leave to amend prevented her from pursuing a valid cause of action.
Because we reverse the trial court's dismissal of Plaintiff's claims of negligence per se (Counts I, II, and III), negligent hiring (Count VII), negligent supervision (Count IX), and punitive damages (Count XI) we need not address Plaintiff's contention that the trial court should have allowed
Rule 67.06 provides that "[o]n sustaining a motion to dismiss a claim ... the court shall freely grant leave to amend." Rule 67.06. Similarly, Rule 55.33(a) states that leave to amend a pleading "shall be freely given when justice so requires." Rule 55.33(a). While both rules stress liberality in permitting amendments to pleadings, they do not confer an absolute right to file even a first amended petition. Moore v. Firstar Bank, 96 S.W.3d 898, 903 (Mo.App. S.D.2003). "Denial of leave to amend is within the sound discretion of the trial court, and its decision will not be disturbed unless there is a showing that such court palpably and obviously abused its discretion." Id. (quotation omitted).
To determine whether to grant leave to amend a petition, courts consider: "the reasons for the moving party's failure to include the matter in the original proceedings; whether there is any prejudice to the non-moving party; and whether there will be hardship to the party requesting amendment if the request is denied." Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609, 624 (Mo.App. E.D.2001). As the recognized purpose of allowing amendments to pleadings is to allow a party to present evidence that was overlooked or unknown when the original pleading was filed, "[a]ppellate courts have found no abuse of discretion in denying the amended pleadings of parties who fail to show the pleadings include any facts that were unknown when the original pleading was filed." Moore, 96 S.W.3d at 904.
Plaintiff's proposed amendments to Counts IV and X and her added counts of negligence and breach of contract, do not present any new facts or circumstances that she could not have raised earlier. See, e.g., Trans World Airlines, 58 S.W.3d at 624. Plaintiff's new and amended claims are based entirely on the facts and allegations contained in her original petition. Moreover, Plaintiff failed to show any reason why the proposed allegations and causes of action were not included in the original petition. "There is no abuse of discretion in denying the amended pleadings of parties who fail to show the pleadings include any facts that were unknown when the original pleading was filed." Tisch v. DST Systems, Inc., 368 S.W.3d 245, 258 (Mo.App. W.D.2012). We therefore conclude that the trial court did not abuse its discretion in denying Plaintiff's motion for leave to amend her petition. Point denied.
The judgment of the trial court is affirmed in part and reversed in part.
LAWRENCE E. MOONEY, P.J., and KURT S. ODENWALD, J., concur.
Mo.Rev.Stat. § 538.205(4). "Health care services" are defined as:
Mo.Rev.Stat. § 538.205(5).
