Brummitt v. Springer

• Decision Date: 14 February 1996
• Docket Number: No. 20127,20127
• Citation: 918 S.W.2d 909
• Parties: Gaylee BRUMMITT, Plaintiff-Appellant, v. Cindy SPRINGER and Michael H. Powers, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 909

918 S.W.2d 909

Gaylee BRUMMITT, Plaintiff-Appellant, v. Cindy SPRINGER and Michael H. Powers, Defendants-Respondents.

No. 20127.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 14, 1996.

Motion for Rehearing or Transfer

Denied March 6, 1996.

Application to Transfer Denied

April 23, 1996.

Appeal from the Circuit Court, Greene County; David P. Anderson, Judge.

Robert P. Warden, Joplin, L. Thomas Elliston, Webb City, Philip A. Glades, Joplin, for plaintiff-appellant.

Jeremiah W. (Jay) Nixon, Attorney General, John R. Munich, David A. Johnston, Clate Baker, Assistant Attorneys General, Jefferson City, for defendants-respondents.

MONTGOMERY, Presiding Judge.

Gaylee Brummitt (Plaintiff) appeals from an order sustaining a motion to dismiss her two-count petition against Defendants Cindy Springer and Michael Powers. Plaintiff's petition alleged that her daughter, Abigail Rhoades, died as a result of Defendants' negligent acts occurring while Abigail was in foster care.

Both counts of Plaintiff's First Amended Petition name the Defendants as Springer and Powers (describing them as state employees working for the Springfield Regional Center, which is under the direct supervision of the Missouri Department of Health) and Charles and Susan Farris, licensed by the state as foster parents. The Farrises also own and operate a day care center licensed by the state.

After Springer and Powers filed their motion to dismiss, the trial court dismissed Plaintiff's claims against them for failure to state a claim for which relief may be granted and properly designated the dismissal as final for the purposes of appeal. See Rule 74.01(b).

Summarized, Count I alleges that Springer was Abigail's case worker and Powers was Springer's direct supervisor. Abigail was a mentally retarded child and required "total care." Plaintiff states that (1) Springer and Powers owed a specific duty to Abigail to ensure her care was in compliance with "Chapter 630 V.A.M.S.," ¹ and (2) their conduct complained of is ministerial in nature and not discretionary.

In 1989, Plaintiff sought the advice and help of the Springfield Regional Center concerning Abigail's care and treatment. An Individual Habilitation Plan (IHP) was developed for Abigail. Eventually, with Plaintiff's consent, Abigail was placed in the Farris foster home after Plaintiff admitted herself into a substance abuse program.

From March 23, 1992, until September 4, 1992, the date Abigail died, she was in the sole care and custody of the Farrises, allegedly under the supervision of the Springfield Regional Center and the Department of Mental Health. As to Abigail's care during this time period, Plaintiff alleges, in part:

18. On March 25, 1992, Abigail was taken by Defendant Susan Farris to Dr. Marla Floyd; she, at this time, weighed 35 1/2 pounds. From this date until May 13, 1992, she is seen by Dr. Floyd for various complaints and is, in fact, admitted to Cox South in Springfield, Missouri.

19. Springfield Regional Center's Chronological Case Notes by Cindy Springer state that she visited Abigail at Cox South on 5/14/92 and that her case notes reflect:

"Spoke with the nurse who admitted her. She was concerned because Abi was " "dirty" " [sic] & the area around her feeding tube being " "crusted over" " [sic] with a discharge."

It is further noted that Abigail's weight is 26 lbs.

20. That on June 4, 1992, Abigail is seen by Dr. Yvonne C. Bussman; the medical records note that she now weighs 30 1/2 pounds and that her weight two weeks ago was 28 lbs. The records also note that the Regional Center desires to know the status of her cardiac disease and her neurological condition and further state: "Apparently have noted a regression of her social skills and abilities, in that she can no longer sit up, and is not as responsive as she has been in the past". The medical report also notes concern about her nutritional status.

21. The IHP Plan Review on or about 6/26/92, states that

"Abigail's health continues to be a concern. At the IHP meeting in May, 1992, it was discussed Abi's failure to gain weight. The school also reported that her skills are deteriorating."

22. She is seen by Dr. Marla Floyd on July 2, 1992. Records note her weight as 29 lbs., which is unchanged from her last visit. She is, again, admitted to hospital. History and Physical Examination by Dr. Floyd notes "severe wasting is present." It was also noted that, during her hospital stay, she developed significantly an increased ability to eat and did not note difficulty in swallowing. She weighed 14.1 kg which, according to the records was an increase from 12.4 kg at the time of admission.

23. On August 12, 1992, Springfield Regional Chronological Notes by Defendant Springer state that she "ran into" Susan Farris and Abi at the pediatrician's office. The records do not denote that Abigail Rhoades was visited in the home by Defendant Cindy Springer, except on March 24, 1992 when she took a wheelchair and clothes to Abi.

24. Although discharge notes state that she is to see Dr. Floyd in one week, Abigail is not seen until August 12, 1992, by Dr. Don D. Sponenberg. Medical records state that "exam reveal[s] horrible malnutrition" and denotes her weight as 29 lbs. Another foster child living in the home with Abigail who is also a total care child, Johnny Berry, is also seen by Dr. Sponenberg, who reports his nutritional status as "horrible".

On September 4, 1992, Abigail, after choking on her own vomit, died allegedly in a weakened and malnourished condition while unsupervised in the Farris day care center. Plaintiff alleges that Springer and Powers had a duty to recommend a qualified foster home for Abigail and a duty to ensure that the Farrises met the requirements of "Chapter 630 V.A.M.S." while caring for Abigail.

According to Plaintiff, Springer and Powers were negligent in discharging their duties to Abigail. The gist of their alleged negligence is that they should have personally evaluated and observed Abigail in the foster care home, observed her weight loss and physical deterioration and removed her from the home. Plaintiff asserts that Springer and Powers failed to follow "Chapter 630 V.A.M.S., regulations or in-house procedures" regarding their responsibilities for Abigail's care and treatment.

Plaintiff's first point contends that the trial court erroneously dismissed Count I as to Springer and Powers because, as state employees, "they breached a ministerial duty owed to Abigail Rhoades, imposed by statute and the regulations of the State of Missouri, and their negligent acts and omissions are not protected by official immunity."

In reviewing a motion to dismiss for failure to state a claim, this Court examines the petition, allowing the petition its broadest intendment, treating all facts alleged as true, and construing the allegations favorably to determine whether they invoke principles of substantive law. Cooper v Corderman, 809 S.W.2d 11, 13 (Mo.App.), cert. denied, 502 U.S. 944, 112 S.Ct. 385, 116 L.Ed.2d 336 (1991). However, we are not required to accept the petitioner's conclusions as true. Id. On appeal, the trial court will be affirmed if any grounds asserted for dismissal are valid. Id.

Under the official immunity doctrine, public officers ² acting within the scope of their authority are not personally liable in tort for injuries arising from their discretionary acts, functions or omissions. Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985). This doctrine provides "that a public official is not civilly liable to members of the public for negligence strictly related to the performance of discretionary duties." Green v. Denison, 738 S.W.2d 861, 865 (Mo. banc 1987).

Discretionary acts involve the exercise of reason in developing a means to an end, and discretion in determining how or whether an act should be done or a course pursued. Kanagawa, 685 S.W.2d at 836. In contrast, ministerial functions concern clerical duties to be performed upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to the public officer's own judgment or opinion on the propriety of the act. Id. The official immunity doctrine serves society's compelling interest in vigorous and effective administration of public affairs by protecting public officers from fear of personal liability as they make judgments concerning the public safety and welfare. Id.

Before liability in tort exists, a public official must breach a ministerial duty imposed by statute or regulation. Norton v. Smith, 782 S.W.2d 775, 777 (Mo.App.1989). In the instant case, the only specific statute Plaintiff mentions is § 630.645, ³ which provides:

The department shall provide or shall arrange for follow-up care and aftercare and shall make or arrange for reviews and visits with the client at least quarterly to the residential facility or day program in which the client has been placed to determine whether the client is receiving care, treatment, habilitation and rehabilitation, including medical care, consistent with his needs and condition. The department shall identify the facilities, programs or specialized services operated or funded by the department which shall provide necessary levels of follow-up care, aftercare, habilitation or medical treatment to clients in certain geographic areas where they are placed. After a client has been placed through the placement program, the department shall, for a period of four months following the initial placement, evaluate and review the progress of the client in the placement at least once a month.

Plaintiff argues that Springer's failure to make regular visits to the Farris foster home and evaluate and review Abigail's progress violated the specific terms of this statute. In other words, Plaintiff believes that had Springer and Powers properly "evaluated and reviewed" the progress of...