Butler v. Circulus, Inc.

Citation557 S.W.2d 469
Decision Date11 October 1977
Docket NumberNo. 38696,38696
PartiesLinda Diane BUTLER, a minor, by and through Frieda J. Butler, her mother and next friend, Carl Butler and Frieda J. Butler, Plaintiffs-Appellants, v. CIRCULUS, INC., doing business as Laurel Haven School for Exceptional Children, Defendant-Respondent. . Louis District, Division Three
CourtCourt of Appeal of Missouri (US)

Ray E. White, Jr., Clayton, for plaintiffs-appellants.

Theodore D. Ponfil, Clayton, Evans & Dixon, Eugene Buckley, St. Louis, for defendant-respondent.

MILTON A. SAITZ, Special Judge.

Plaintiffs Linda Diane Butler (a minor who filed suit by and through her mother and next friend Frieda J. Butler and who will be referred to in this opinion simply as plaintiff), Carl Butler and Frieda J. Butler filed a petition against defendant Circulus, Inc., doing business as Laurel Haven School for Exceptional Children, claiming liability on the part of defendant for alleged physical and mental abuse and treatment of Linda Diane Butler while she was a "resident and student" at defendant's institution. After the filing of plaintiffs' sixth amended petition defendant filed a motion to dismiss urging (1) that the petition failed to state a claim upon which relief could be granted against defendant, (2) that the petition failed to comply with previous court orders made with respect to plaintiffs' pleadings, and (3) that the petition commingled allegations of assault and battery with allegations of negligence in violation of a previous court order. Without stating any grounds for its decision, the trial court dismissed the sixth amended petition with prejudice. Plaintiffs appeal.

If any of the grounds asserted for dismissal are valid, the trial court's order dismissing the petition must be affirmed. McClellan v. Highland Sales & Investment Co., 514 S.W.2d 371, 374(1) (Mo.App.1974). For plaintiffs to prevail we must find that no ground for dismissal was valid. We first consider whether the trial court's order is sustainable on the ground that the petition fails to state a cause of action against defendant.

In reviewing whether a petitionstates a cause of action "we are required to construe the petition favorably and to give the pleader the benefit of every reasonable and fair intendment in view of the facts alleged. If the pleader's allegations invoke principles of substantive law which may entitle the party to relief, the petition is not to be dismissed. If the facts pleaded and reasonable inferences to be drawn therefrom, looked at most favorably from the plaintiff's standpoint, show any ground upon which relief can be granted, the plaintiff has a right to proceed." Euge v. Golden, 551 S.W.2d 928, 931(4) (Mo.App.1977). And "if the petitioner's allegations invoke substantive principles of law which may entitle the pleader to relief, it will be sustained even though the cause of action is imperfectly or defectively stated." Id. at 932(8). We set out the sixth amended petition in full.

"SIXTH AMENDED PETITION

COUNT I

Comes now plaintiff, Linda Diane Butler, a minor, by and through Frieda J. Butler, her mother and next friend, and for her cause of action states;

1. That Linda Diane Butler is a minor, mentally retarded, has no legally appointed guardian and brings this cause of action by and through her natural mother and duly appointed next friend, Frieda J. Butler.

2. That the defendant, Circulus, Inc., is a Missouri Corporation organized and authorized to do business in the State of Missouri and is licensed to do business under the Fictitious Name Act of the State of Missouri with the name of 'Laurel Haven School for Exceptional Children' and does operate a residential institution and facility which accepts mentally retarded persons for care, treatment, custody, training and education in Ballwin, Missouri which institution is licensed by the State of Missouri to provide care, treatment, custody, training and education of mentally retarded persons under the provision of Section 202.900 Revised Statutes of Missouri 1969 as amended 1972, formerly Section 202.831.

3. That on or about the 7th day of January, 1974, this plaintiff was admitted as a resident and student at the institution and facility operated by defendant in Ballwin, Missouri, and was a resident and student at said school until on or about May 3, 1974 for the purpose of defendant providing her care, treatment, training and education as a mentally retarded person.

4. Plaintiff states that during the time she was a resident and student of said institution and facility, defendant, by and through its employees and agents during times said employees and agents were providing her care, treatment, training and education as a mentally retarded person,

a) developed and carried into effect an improper program of behavior modification in respect to plaintiff which was based on physical and psychological punishment of plaintiff in an effort to cause plaintiff to obey orders and directions and as part of said program committed the following acts:

i) Routinely, on a daily basis, defendant's employee Kenneth A. Meyer twisted plaintiff's arms slapped plaintiff and sat on plaintiff in an effort to punish plaintiff and to cause plaintiff to obey orders and directions.

ii) Routinely, on a daily basis, defendant's employee, Kenneth A. Meyer, while acting in his capacity as supervisor of the Sheltered Workshop Division of defendant's institution ridiculed plaintiff, called plaintiff derogatory names, threatened plaintiff, used abusive language towards plaintiff and singled plaintiff our (sic) for special disciplinary actions by the employees of defendant's institution in an effort to punish plaintiff and cause plaintiff to obey orders and directions.

iii) On or about May 1, 1974 defendant's employee Kenneth A. Meyer struck plaintiff in the neck with his fist in an effort to punish plaintiff and to cause plaintiff to obey said employee's orders and directions.

iv) Routinely, on a daily basis, defendants (sic) employee Martha Frillman twisted plaintiff's arms and struck plaintiff in an effort to punish plaintiff and to cause plaintiff to obey orders and directions.

v) On one or more occasions between April 16, 1974 and May 1, 1974, defendant's employee Martha Frillman struck plaintiff about her body with a whip-like object in an effort to punish plaintiff and to cause plaintiff to obey orders and directions.

vi) Defendant's employee, Martha Frillman forced plaintiff to eat soap in an effort to punish plaintiff and cause plaintiff to obey said employee's orders and directions.

vii) On or about the 17th day of March 1974, defendant's employee, Pat Belt kicked plaintiff in the mouth in an effort to punish plaintiff and to cause plaintiff to obey said employee's orders and directions.

viii) On or about the 7th day of January, 1974 and during the month of April, 1974, defendants (sic) employee Katherine Cummings, kicked and kneed plaintiff in the shins, legs and back, wrestled with and sat on plaintiff in an effort to punish plaintiff and to cause plaintiff to obey said employee's orders and directions.

ix) On or about the 9th, 10th, 11th and 20th day of January 1974, the 4th day of March 1974, the 9th, 10th, 11th, 14th, 15th, 16th, 17th, 21st, 22nd, 23rd, 25th and 29th days of April 1974 and the 3rd day of May 1974, defendant by and through its employees and agents caused plaintiff to be placed in mechanical restraints without a physician's approval therefore in an effort to punish plaintiff, to cause plaintiff to obey the orders and directions of defendant's.

b) From the 7th day of January 1974 through the 3rd day of May 1974, defendant failed to provide plaintiff with the type of training and education which it knew or should have known was required if plaintiff was to reach her maximum ability to function as a mentally developed person and which failure it knew or should have know would result in the loss by plaintiff of her existing ability to function as a mentally retarded person.

5. Plaintiff states that the aforesaid occurrences were the direct and proximate result of the negligence and carelessness of defendant and defendant's employees and agents while acting within the scope and course of their employment by defendant in the following respects.

a) Defendant used improper methods of punishment in attempting to modify plaintiff's behavior.

b) As to the occurrences set forth in paragraphs 4(a)(i) through (ix) defendants employees and agents used excessive force under the circumstances then and there existing.

c) Defendant employed persons to provide care, treatment, training and education to plaintiff which it knew or should have known were unqualified to provide such care, treatment and education.

d) Defendant failed to supervise those persons it employed to provide care treatment, training and education to plaintiff so as to ascertain that said occurrences were taking place and so as to prevent their repetition.

e) Defendant failed to supervise the work of Kenneth A. Meyer so as to ascertain that he was providing inadequate and improper supervision and direction to other employees in the Sheltered Workshop Division of Defendant's institution.

f) Defendant failed to train its employees to provide proper care, treatment, training and education to plaintiff.

6. Plaintiff states that as a direct and proximate result of the aforesaid occurrences, she was caused to suffer severe burns, bruises, contusions, lacerations, scars, a child abuse syndrome, further mental retardation, mental illness and her nerves and entire nervous system are shocked, that plaintiff suffered, suffers

and will in the future suffer much pain of body, anguish of mind, mental illness, further mental retardation, cosmetic defects and all of her injuries are permanent, painful and progressive, all to plaintiff's damages in the sum of Five Hundred Thousand Dollars ($500,000.00)

7. Plaintiff states that all of the occurrences therein alleged were due...

To continue reading

Request your trial
32 cases
  • Hyde v. City of Columbia
    • United States
    • Missouri Court of Appeals
    • June 15, 1982
    ...tortious or criminal, does not prevent that person from being liable for the harm caused thereby. See also Butler v. Circulus, Inc., 557 S.W.2d 469, 475 (Mo.App.1977). Thus, conduct may be negligent solely because the actor should have recognized that it would expose the person of another t......
  • Bates v. United States
    • United States
    • U.S. District Court — Western District of Missouri
    • July 20, 1981
    ...were so outrageous as to preclude recovery under Wellman. In further support of this argument, plaintiffs cite Butler v. Circulus, Inc., 557 S.W.2d 469 (Mo.App.1977). In Butler, parents of a mentally retarded minor sued the operator of a residential institution for exceptional children alle......
  • Madison ex rel. Bryant v. Babcock Center
    • United States
    • South Carolina Supreme Court
    • March 7, 2006
    ...who allegedly failed to follow agency's rules and carry out their assigned duties in supervising patients); Butler v. Circulus, Inc., 557 S.W.2d 469, 475 (Mo.App.1977) (mentally retarded minor plaintiff who was resident and student at defendant's licensed institution stated cause of action ......
  • Madison ex rel. Bryant v. Babcock Center, 26198.
    • United States
    • South Carolina Supreme Court
    • August 14, 2006
    ...who allegedly failed to follow agency's rules and carry out their assigned duties in supervising patients); Butler v. Circulus, Inc., 557 S.W.2d 469, 475 (Mo.App.1977) (mentally retarded minor plaintiff who was resident and student at defendant's licensed institution stated cause of action ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT