Daniels v. Senior Care

• Court: Court of Appeal of Missouri (US)
• Citation: 21 S.W.3d 133
• Decision Date: 29 June 2000
• Parties: (Mo.App. S.D. 2000) Ann Daniels and Nina Ruth McCullah, Appellants, v. Senior Care, Inc., a Missouri Corporation, Respondent. 23142 & 23216 0

21 S.W.3d 133 (Mo.App. S.D. 2000) Ann Daniels and Nina Ruth McCullah, Appellants,
v.
Senior Care, Inc., a Missouri Corporation, Respondent. 23142 & 23216 Missouri Court of Appeals Southern District 06/29/2000

Appeal From: Circuit Court of Greene County, Hon. Don Burrell, Jr.

Counsel for Appellant: John M. Albright

Counsel for Respondent: Laurel Stevenson

Opinion Summary: None

Prewitt, J. and Garrison, C.J., concur.

Robert S. Barney, Judge

Appellants Ann Daniels and Nina Ruth McCullah ("Plaintiffs") sued Senior Care, Inc., a Missouri Corporation ("Defendant"), for the wrongful death of their mother, Imogene Ingram, resulting from a fire in their mother's home, in which Defendant's employee also perished. The Circuit Court granted Defendant's motion for summary judgment and Plaintiffs appeal.¹

In their appeal, Plaintiffs contend that the trial court erred in granting summary judgment and raise three points of trial court error. Plaintiffs assert that, contrary to the trial court's judgment, they offered facts showing that: (1) due to their mother's diminished mental capacity and while under Defendant's employee's care, Defendant owed a duty to their mother, either contractually or gratuitously, to provide 24-hour care; (2) Defendant breached this duty by Defendant's employee stacking "combustibles," i.e., papers and magazines, or allowing decedent to stack combustibles, against an electric baseboard heater in the home; or otherwise failed to provide adequate safeguards to protect their mother from "known hazards" that she didn't understand; (3) Defendant's employee's breach of duty was a proximate cause of a fire that ignited at their mother's home, ultimately resulting in her death.² Because Plaintiffs' points are interrelated we review them conjunctively.

"This Court reviews the record in the light most favorable to the party against whom summary judgment was entered." Stanley v. City of Independence, 995 S.W.2d 485, 486 (Mo. banc 1999). "Review is essentially de novo, as the propriety of summary judgment is an issue of law." Id. "Summary Judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Id; see Rule 74.04(c)(3). "The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question." ITT Commercial Fin. v. Mid-Am Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993); see also Mueller v. Lemay Bank & Trust Co., 990 S.W.2d 690, 691 (Mo.App. 1999). "[N]othing in ITT suggests that it intended to overrule a long standing rule . . . provid[ing] that on a summary judgment motion, 'neither the trial court nor we are authorized to determine the credibility of statements or testimony made under oath.'" Nolte v. Wittmaier, 977 S.W.2d 52, 59-60 (Mo.App. 1998). "Rather, such matters are for determination upon a complete trial." Id; see also Oetker v. Sherwood, 920 S.W.2d 639, 641 (Mo.App. 1996) ("On a motion for summary judgment, the court is not authorized to determine the credibility of conflicting testimony under oath, but rather, resolution of those matters is for the fact finder at a complete trial").

Viewed in the light most favorable to Plaintiffs, the evidence shows that the decedent was 86 years old at the time of her death. In deposition testimony, Dr. Philip J. LeFevre testified to treating decedent from 1985 through 1995. Dr. LeFevre indicated that at the time of his earliest visit with decedent she suffered from "a chronic schizophrenic condition, that had as its features, paranoia." He stated that she also was a "severe alcoholic," and he related his concerns that there was some beginning of dementia. Dr. LeFevre further testified that in his 1992 treatment of decedent "she was getting a fair amount of memory loss," meaning "getting a progression of the dementia . . . ." In seeing her again in 1994, he opined that "[t]he dementia, however, was getting worse, in the sense of forgetfulness, especially of recent events." He also opined, based on a reasonable degree of medical and scientific certainty that:

she probably was suffering from a lifelong schizophrenic process, that was further complicated by substance abuse, meaning alcohol. Which subsequently, probably initiated an organic brain syndrome, the dementia, which progressed. And what we were seeing towards the end was more of the dementia, rather than the paranoia, subsequently the schizophrenia.

The record also shows that decedent was incapable of making everyday decisions. Although she could pick-up magazines, she wasn't capable of walking without assistance and used a walker. While she did not require skilled nursing care, she required help with such aspects of daily living as cooking, bathing and cleaning the house, which Defendant's employee, Ms. Bonnie Crawford ("Ms. Crawford"), provided as a live-in companion over a period of almost two years.

Decedent's daughter, Jane Thompson, testified in deposition that "we were having [Ms. Crawford] to dole out the cigarettes to [decedent]." Ms. Thompson also related that "we wanted [Ms. Crawford] to supervise [the decedent] while she smoked because she was very bad about knocking cigarettes out of the ashtray and not noticing it and they would fall down on the chair she was sitting in." Ms. Thompson testified that she began to ask Ms. Crawford to distribute the cigarettes to her mother, "several months before she died, before the fire." Furthermore, Ms. Thompson, testified in deposition that she and Ms. Crawford "talked repeatedly . . . on several occasions about how we have to keep things away from the heaters especially flammable things like the furniture or an afghan that [decedent] had thrown over a rocker in her bedroom that was too close to the heater one time." Ms. Thompson repeated to Ms. Crawford that "[w]e cannot keep things close to these heaters." Additionally, Ms. Thompson related that she was last at decedent's home on December 23, 1995, for about one hour and "didn't see anything out of the ordinary." She also stated that she was not aware of any family members that were present at the home between her visit and the time of the fire, a fact acknowledged by Defendant in its brief.

On December 26, 1995, a fire occurred at decedent's home. Mr. Kent Turner, a fire marshal for the City of Springfield Fire Department, testified by deposition that he had been performing fire investigation duties some fifteen years and related that he had investigated around 1,500 fires. He determined that the "heaviest burn to be in the living room located on the southeast corner of the house." He stated that in his opinion it "was the area of origin." He testified he found a "table right in the very corner and . . . two appliances . . . like a humidifier and an air cleaner . . . ." Turner also found a "little coffee table stuck right in the corner, and they had a whole lot of magazines and papers stacked underneath and on top of that coffee table." He stated further that he "noticed that there was an especially heavy burn to the right of that table where there was a bunch of papers and magazines laying on top of an electric heater, a wallboard heater that ran in that corner." He said that he "noticed especially heavy heat at that area, because the metal was burned white as opposed to the metal on the rest of the heater away from that area being black just from smoke." Mr. Turner also related that "there was magazines and papers piled up on...