Bottorff-Arey v. Truman State Univ.
| Citation | 633 S.W.3d 508 |
| Decision Date | 21 September 2021 |
| Docket Number | WD 84006 |
| Parties | Melissa BOTTORFF-AREY, on Her Own Behalf, and as Personal Representative of the Estate of, and as Parent of Alexander David Mullins, Deceased, and Suzanne and Michael Thomas, on Their Own Behalf, and as Personal Representative of the Estate of, and as Parents of Joshua Michael Thomas, Deceased, Appellants, v. TRUMAN STATE UNIVERSITY; the Fraternity of Alpha Kappa Lambda, Inc.; Brandon Grossheim; Alpha Kappa Lambda, Xi Chapter; Lou Ann Gilchrist; and Truman State University Campus Security Authorities, Respondents. |
| Court | Court of Appeal of Missouri (US) |
Nicole Gorovsky ; Sarah Schwartz, St. Louis for appellants.
Jeffrey Blaylock, Jill Jackson, Theodore Lindsey, John Benson, for Respondent.
Before Division One: Lisa White Hardwick, Presiding Judge, Alok Ahuja, and Anthony Rex Gabbert, Judges
Melissa Bottorff-Arey, on her own behalf and as personal representative of the estate of, and as parent of, Alexander David Mullins, deceased, and Suzanne and Michael Thomas, on their own behalf and as personal representatives of the estate of, and as parents of, Joshua Michael Thomas, deceased (collectively, "Appellants"), appeal the circuit court's judgment dismissing their claims against Truman State University ("Truman") and Lou Ann Gilchrist, vice-president of student affairs at Truman. Appellants contend their petition stated valid Missouri Merchandising Practices Act ("MMPA") and breach of contract claims against Truman and that their claims against Truman and Gilchrist were not barred by sovereign immunity. For reasons explained herein, we affirm.
In reviewing a judgment dismissing a petition with prejudice, "we assume all facts alleged in the petition are true and liberally construe all reasonable inferences in favor of the plaintiff." Taylor v. Curators of Univ. of Mo. , 602 S.W.3d 851, 853 n.2 (Mo. App. 2020) (citation omitted). The facts alleged in the petition are as follows:
Between August 2016 and August 2017, five young adults in Kirksville died by apparent suicide: Mullins, Thomas, John Doe 1, John Doe 2, and Jane Doe. Mullins, Thomas, and John Doe 1 were Truman students and Alpha Kappa Lambda ("AKL") fraternity members, while John Doe 2 and Jane Doe were local Kirksville residents. All five had connections to Brandon Grossheim, a Truman student and AKL member.
Mullins suffered from depression throughout his life. In February 2016, while he was attending Truman and living in the AKL house, his depression symptoms worsened, and he began having regular nightmares and angry moods. He obtained mental health treatment for the first time through Truman's University Counseling Services ("University Counseling") and reported suicidal thoughts. In early June 2016, Mullins stopped attending his scheduled counseling appointments at University Counseling. University Counseling followed up with emails to Mullins about his missed appointments but did not make further attempts to reach him or to perform a welfare check and, instead, closed his file in early July 2016 due to his no-shows. On August 7, 2016, Mullins died by suicide by hanging in his room at the AKL house. At some point before his death, Mullins had stopped taking his prescribed depression medication.
Like Mullins, Thomas also suffered from depression throughout his life, had thoughts of suicide and a history of prior suicide attempts, and had stopped taking his prescribed depression medication prior to his death. During the week of March 13-17, 2017, while on spring break in South Padre Island with some of his fraternity brothers, Thomas attempted suicide by hanging in front of numerous other friends, Truman students, and/or fellow AKL members. After this suicide attempt, Truman did not take any action to intervene or to inform his parents. On April 6, 2017, Thomas died by suicide by hanging in a storage closet at the AKL house.
A third AKL member, John Doe 1, also had issues with depression and anxiety. John Doe 1 attempted suicide and made suicidal statements during a party at the AKL house in August 2016. John Doe 1 died by suicide by hanging in August or September 2016 in his room at the AKL house. John Doe 2 had issues with depression, had been diagnosed with bipolar disorder
, and had attempted suicide in the past, including in November 2016. On January 27 or 28, 2017, John Doe 2 died by suicide by hanging in his apartment. Jane Doe allegedly died by suicide in her apartment on July 5, 2017.
Grossheim was a member of the AKL fraternity during the same time as Mullins and Thomas and served as house manager in 2016 and 2017. As house manager, he had access to all of the fraternity house rooms. Grossheim "found"1 the bodies of Mullins and John Doe 1 following their suicides. Shortly after John Doe 1's death, Grossheim was observed with cash, drugs, and clothes obtained from John Doe 1's room. Grossheim's name and contact information was found on a scrap of paper next to where Thomas's body was found. Grossheim lived in the same apartment building and across the hall from John Doe 2. Grossheim was the manager of that apartment building and had keys to all of the apartments. Grossheim saw John Doe 2 on the night of his suicide. Grossheim was friends with and a neighbor to Jane Doe and found her body following her alleged suicide.
Grossheim had a known fascination with death and had proclivities that others found concerning. He reported that he told his friends that he was "there for them" and gave them "advice" and "step by step directions" on how to "deal with depression." Grossheim's advice included how to commit suicide. Grossheim called himself a "superhero" and the "peacemaker" and gravitated toward "these [depressed] people." Grossheim reported that he saw himself as a person that people could go to so he could counsel them and give them advice on how to "do their own free will." Grossheim aided or encouraged the deaths of multiple young people, including Mullins and Thomas.
Truman and Gilchrist had specialized knowledge that Mullins and Thomas had extremely vulnerable mental states and suffered from depression. Additionally, Mullins and Thomas had both reported that they had stopped taking their depression medication and had thoughts of suicide and/or a history of prior suicide attempts. Truman and Gilchrist were also aware of Grossheim's dangerous proclivities before Mullins's and Thomas's deaths and knew he was violent.
Neither Grossheim nor any other individual has been criminally charged in connection with any of the five deaths. Grossheim remains in Kirksville and spends time with students. Truman and Gilchrist have not warned the Truman student population about Grossheim's dangerousness.
Truman's website stated, in part, "We make sure you have the resources to stay healthy, be safe, and feel well." Truman had a team of professionals, the Students of Concern, to support students and maintain a safe environment at the school.2
After filing their initial petition in July 2019, Appellants filed their second amended petition in December 2019. In their second amended petition, Appellants asserted: in Count I, a negligence/premises liability claim against AKL3 ; in Count II, violations of the MMPA against Truman and AKL; in Count III, a negligent misrepresentation claim against AKL; in Count IV, a wrongful death claim against Grossheim; in Count V, a wrongful death claim against AKL; in Count VI, a negligence per se claim against Grossheim; in Count VII, a breach of contract claim against Truman; and in Count VIII, a negligence/breach of ministerial duty claim against Gilchrist and Truman State Campus Security Authorities.
Truman and Gilchrist subsequently filed a motion to dismiss Counts II, VII, and VIII against them, asserting that the claims were barred by sovereign immunity and that Appellants failed to state a claim upon which relief could be granted. After hearing arguments on the motion, the circuit court entered an order sustaining the motion to dismiss Counts II, VII, and VIII.4 Appellants attempted to appeal the order; however, we dismissed the appeal for lack of a final, appealable judgment. The circuit court then entered a judgment dismissing Appellants’ claims against Respondents in Counts II, VII, and VIII with prejudice and certifying the judgment for appeal after finding that there was no just reason for delay. Appellants filed this appeal.5
We review the grant of a motion to dismiss de novo and will consider only whether the grounds stated in the motion supported the dismissal. Aldridge v. Francis , 503 S.W.3d 314, 316 (Mo. App. 2016).
In Points I, II, and III, Appellants challenge all of the grounds upon which the circuit court could have dismissed Count II, which was their MMPA claim against Truman. In Count II, Appellants alleged that they purchased consumer merchandise, specifically, admissions to and/or tuition for courses at Truman, for personal, family, or household purposes. They further alleged that, in connection with that purchase, Truman misrepresented and/or made false promises to them that they would be given the resources to stay healthy, be safe, and feel well; that they would be supported and be in a safe environment; that they would be provided with a course of action, resources, and intervention in the event of a mental health crisis; and that they would be provided with an emergency notification system and timely notice of dangerous persons in their midst. Appellants asserted that Truman's misrepresentations and/or false promises constituted unfair practices that were deceptive, false, fraudulent, unethical, unscrupulous, and/or otherwise offended public policy, and they resulted in Appellants’ suffering an ascertainable loss of money and/or property. Appellants requested compensatory and punitive damages.
In its dismissal motion, Truman contended that Appellants failed to state a...
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