Geiger v. Bowersox, 72392

CourtCourt of Appeal of Missouri (US)
Citation974 S.W.2d 513
Docket NumberNo. 72392,72392
PartiesRandy GEIGER, Appellant, v. Michael BOWERSOX, et al., Respondents.
Decision Date21 April 1998

Page 513

974 S.W.2d 513
Randy GEIGER, Appellant,
Michael BOWERSOX, et al., Respondents.
No. 72392.
Missouri Court of Appeals,
Eastern District,
Division Two.
April 21, 1998.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Aug. 26, 1998.

Page 515

Michael A. Gross, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John R. Munich, Deputy Atty. Gen., Jefferson City, John J. Lynch, Asst. Atty. Gen., St. Louis, for respondents.


Randy Geiger is an inmate at the Potosi Correctional Center. On November 16, 1995, after requesting and receiving his Maalox prescription from prison guard Dennis Pemberthy, Mr. Geiger ingested floor wax which had been placed into his Maalox bottle. Mr. Geiger immediately started vomiting and coughing up blood. Mr. Geiger was treated at Washington County Hospital and placed on an all liquid diet. Prison policy mandates that inmates' prescriptions are to be maintained and administered only by prison medical staff. However, Jane Doe, a prison nurse, placed Mr. Geiger's Maalox prescription into the control of the housing unit guards. Liquid floor wax is only accessible by prison employees.

Mr. Geiger filed a pro se petition with the circuit court of Washington County alleging four causes of action, charging nurse Jane Doe and guard Dennis Pemberthy with negligence, Mr. Pemberthy with assault, and prison warden Michael Bowersox with vicarious liability for failure to properly train and supervise his employees. The trial court dismissed Mr. Geiger's petition without prejudice for failure to state a cause of action on March 10, 1997. On March 25, 1997, the trial court amended the order to dismiss the petition with prejudice. Mr. Geiger appeals the dismissal, alleging that the trial court erred in dismissing the negligence claim against Jane Doe and the assault claim against Dennis Pemberthy. 1

I. Standard of Review

A motion to dismiss for failure to state a cause of action is a test of the adequacy of the plaintiff's petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). An appellate court considers the facts set forth in a petition to determine the validity of the trial court's judgment. Friedman v. Edward L. Bakewell, Inc., 654 S.W.2d 367, 368 (Mo.App. E.D.1983). This court reviews the granting of such a motion in the light most favorable to the plaintiff's claims, assumes that the facts

Page 516

alleged in the pleading are true, construes those facts liberally in favor of the appellant, gives the appellant the benefit of every reasonable intendment favorable to his pleading, and judges that pleading with "broad indulgence." Auto Alarm Supply Corp. v. Lou Fusz Motor Co., 918 S.W.2d 390, 392 (Mo.App. E.D.1996).

II. Claim Against Mr. Pemberthy

Mr. Geiger contends that his assault claim should be construed as a claim of battery. While it is true that a plaintiff's "erroneous characterization of an action" does not defeat the claim if he has alleged "the essential facts necessary to state a basis for relief," Gaffney v. Community Federal Savings & Loan Ass'n, 706 S.W.2d 530, 533 (Mo.App. E.D.1986), Mr. Geiger fails to state a claim against Mr. Pemberthy either as an assault or as a battery.

A. Assault

An assault is defined as any unlawful offer or attempt to injure another with the apparent present ability to effectuate the attempt under circumstances creating a fear of imminent peril. Adler v. Ewing, 347 S.W.2d 396, 403 (Mo.App.1961). Even under the broadest reading of Mr. Geiger's claim there is no fear of imminent peril. The petition makes clear that Mr. Pemberthy handed to Mr. Geiger the Maalox bottle and that Mr. Geiger self-administered an adult dosage. Lacking such a fear of imminent peril, the petition fails to allege an essential element for an assault claim.

B. Battery

A battery is an intended, offensive bodily contact with another. State ex rel. C.S. v. Dowd, 923 S.W.2d 444, 449 (Mo.App. E.D.1996). The petition fails to allege any facts that support the requisite element of intent necessary to carry any claim of battery. It is well established that Missouri is a fact pleading state. Luethans v. Washington Univ., 894 S.W.2d 169, 171 (Mo. banc 1995). Fact pleading is intended to limit and define for the...

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