Bosch v. St. Louis Healthcare Network
| Decision Date | 20 March 2001 |
| Parties | (Mo.banc 2001) Ron Bosch, Appellant, v. St. Louis Healthcare Network, Respondent. SC82721 0 |
| Court | Missouri Supreme Court |
Appeal From: Circuit Court of St. Louis County, Hon. Barbara Wallace
Counsel for Appellant: Burton H. Shostak, D. J. Westling and Grant J. Shostak
Counsel for Respondent: Christine M. Kocot, Paul E. Kovacs and Jeffrey T. McPherson
Opinion Summary: Ron Bosch's wife, a nurse, pricked herself with an infected needle at work and contracted hepatitis C. Bosch sued St. Louis Health Care Network for loss of his wife's consortium and negligent infliction of emotional distress on him. The court dismissed the case. Bosch appealed dismissal of the negligent infliction of emotional distress claim.
Court en banc holds: 1) The exclusivity of workers' compensation applies to spouses for claims on account of the covered injury, section 287.120.2. Loss of consortium is a derivative claim that arises out of the original covered injury to the spouse and is barred. Negligently inflicted emotional distress is independent of and not derivative from the injury of the covered worker, so it is not one that is "on account of such accidental injury" and is not barred.
2) Bosch fails to allege all the elements of a negligent infliction of emotional distress claim. He does not allege he was present when his wife stuck herself or within the zone of danger, as the claim requires. The Court is not inclined to extend the claim for negligent infliction to the day-to-day interaction of husband and wife after the event.
Stith, J., not participating.
This case comes to us after the dismissal of the plaintiff's claim. Two issues are presented. First, whether section 287.120.2, RSMo 1994, part of the workers' compensation act, precludes the spouse of an employee who has made a claim for a workplace injury from bringing his or her own cause of action against the employer for negligent infliction of emotional distress. And second, whether the plaintiff has pled sufficient facts to make out a cause of action for negligent infliction of emotional distress. Section 287.120.2 does not preclude an action for a spouse's independent injury. However, Bosch did not plead that he was at the scene of an injury-producing sudden event as required to support a claim for negligent infliction of emotional distress.
A motion to dismiss attacks the plaintiff's pleadings. In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, the following standard of review applies:
A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed 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.
Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) (internal citations omitted).
The following facts were alleged in the petition filed by Ron Bosch. Bosch's wife, Patricia Bosch, was employed as a nurse at the St. Joseph Health Center. She was required to draw blood in the course of her employment. Bosch alleged that on February 9, 1994, his wife drew blood from a patient infected with hepatitis C. After drawing the blood, she tripped over a small child in a crowded hall causing her to be pricked by the needle she used to draw the blood. Ms. Bosch contracted hepatitis C as a result of the needle prick.
On February 3, 1999, Ron Bosch (Bosch) filed a two-count petition against St. Louis Health Care Network ("SSM"), the operator of St. Joseph Health Center. In the first count, Bosch alleged that he lost his wife's consortium, and in the second he alleged that SSM negligently inflicted emotional distress on him.
In his petition, Bosch first alleged that his wife's injury caused him to lose her consortium. He also alleged that: (1) SSM should have known that its conduct created an unreasonable risk of bodily harm to him, (2) he was present at the scene of an injury-producing sudden event, and (3) he was and is in the zone of danger by his continuing risk of contracting hepatitis C and other blood diseases from Wife. Bosch further alleged that he was in reasonable fear of contracting the disease and that the acts of SSM have caused him severe mental and emotional distress and anguish and pain of body.
SSM filed a motion to dismiss the petition for lack of subject matter jurisdiction and for failure to state a claim. SSM claimed that the trial court lacked subject matter jurisdiction over both the loss of consortium claim and the negligent infliction of emotional distress claim because such claims are barred by section 287.120.2. Even if it was not barred by that section, SSM claimed that Bosch failed to allege sufficient facts to state a claim for relief based on negligent infliction of emotional distress. The trial court granted the motion to dismiss, but did not state the grounds for dismissal.
On appeal, Bosch abandoned his claim for loss of consortium. Bosch asserts that the trial court erred, however, in granting the motion to dismiss with respect to the negligent infliction of emotional distress claim.
The Court is first required to address the question of jurisdiction. Kuyper v. Stone County Com'n, 838 S.W.2d 436, 437 (Mo. banc 1992). Section 287.120.2, RSMo 1994, provides that:
The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.(Emphasis added).
Our court of appeals has held that section 287.120.2 precludes an...
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