Hill v. Freedman

• Decision Date: 19 May 2020
• Docket Number: WD 82657 , (C/w WD 82771)
• Citation: 608 S.W.3d 650
• Parties: Tonda HILL, Appellant, v. Steven FREEDMAN, Respondent.
• Court: Missouri Court of Appeals

608 S.W.3d 650

Tonda HILL, Appellant,

v.Steven FREEDMAN, Respondent.

WD 82657

(C/w WD 82771)

Missouri Court of Appeals, Western District.

OPINION FILED: May 19, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied June 18, 2020

Application for Transfer Denied November 3, 2020

Edward (E.E.) Keenan and Sonal Bhatia, Kansas City, MO, Attorneys for Appellant.

Derek T. Teeter and Michael T. Raupp, Kansas City, MO, Attorneys for Respondent.

Before Division Four: Karen King Mitchell, Chief Judge, and Thomas H. Newton and Edward R. Ardini, Jr., Judges

Karen King Mitchell, Chief Judge

Tonda Hill appeals from the judgment dismissing, with prejudice, her claim of negligence arising from a car accident involving her former supervisor, Steven Freedman. Hill raises four points on appeal. She argues that the motion court erred in dismissing her negligence claim because (1) Missouri substantive law applies, in that the accident occurred in Missouri and the effects and injuries first occurred in Missouri; (2) Freedman is not immune from suit, in that the Kansas Tort Claims Act (KTCA) does not apply to a personal-capacity claim brought under Missouri law; (3) comity does not prohibit Hill's negligence claim, in that comity does not bar suits against government employees for their own personal acts; and (4) Hill's negligence claim is not barred by workers’ compensation, in that this case is governed by Missouri substantive law, there was an affirmative negligent act, and the suit claims remedies not obtainable under the workers’ compensation system. Finding no error, we affirm.

Background¹

In January 2014, when the alleged negligent act occurred, Hill and Freedman were citizens and residents of Kansas and were employed by the University of Kansas School of Law, where Freedman was Hill's supervisor. Hill alleges that, while Freedman was driving her to a work-related event at a law firm in Kansas City, Missouri, he began yelling at her about an upcoming speaker panel. After the vehicle entered the law firm's parking garage, Freedman allegedly revved the engine while continuing to yell at Hill, put the vehicle in reverse, and slammed the vehicle into a concrete barricade. The collision injured Hill, who was unable to work for a period of time as a result. Hill reported her injuries to the University and "exercised her rights to report, and receive treatment and pay for, a workplace injury."

In August 2017, Hill filed a single-count suit against Freedman, alleging discrimination based on her exercise of her workers’ compensation rights. Freedman moved to dismiss for lack of personal jurisdiction and failure to state a claim for which relief may be granted. Instead of filing a response, Hill filed a first amended petition in June 2018, asserting claims for assault, battery, negligence, and discrimination based on the exercise of Hill's workers’ compensation rights. Freedman moved to dismiss for lack of personal and subject matter jurisdiction and for failure to state a claim. In response, Hill conceded that her first two counts—assault and battery—were time-barred, but she opposed dismissal of the remaining two counts—negligence and discrimination based on her exercise of her workers’ compensation rights—and sought leave to amend her petition to address issues related to her discrimination claim. The motion court granted Freedman's motion to dismiss the first two counts and denied his motion to dismiss the remaining two counts; the court also granted Hill leave to amend her petition.

In September 2018, Hill filed her second amended petition, the operative petition here, asserting the same four causes of action—assault, battery, negligence, and discrimination based on her exercise of her workers’ compensation rights. The second amended petition includes the key allegations previously mentioned—both Hill and Freedman were employed by the University of Kansas during the relevant time, the alleged negligence occurred in Kansas City, Missouri, "[w]hile [Freedman was] performing work," and "Hill exercised her rights to report, and receive treatment and pay for, a workplace injury." Freedman again moved to dismiss all four counts, focusing his arguments in response to Hill's negligence claim on failure to state a claim and statutory immunity under the KTCA.

On February 8, 2019, the motion court issued an order dismissing Hill's second amended petition with prejudice.² The motion court concluded that Hill applied for and received workers’ compensation under Kansas law,³ Kansas law governs issues related to her injury, and Hill failed to state a claim for negligence or discrimination based on her exercise of her workers’ compensation rights under Kansas law.⁴ As to Hill's negligence claim specifically, the court found that Hill is statutorily barred from asserting a negligence claim against Freedman under Kansas law, and he is immune from Hill's negligence claim under the KTCA.

This appeal follows.⁵

Standard of Review

All four points on appeal challenge the propriety of the motion court's dismissal of Hill's negligence claim. We review "the grant of a motion to dismiss de novo and will affirm the dismissal on any meritorious ground stated in the motion." Mosby v. Precythe , 570 S.W.3d 635, 637 (Mo. App. W.D. 2019) (quoting Gerke v. City of Kan. City , 493 S.W.3d 433, 436 (Mo. App. W.D. 2016) ).

"A motion to dismiss for failure to state a claim on which relief can be granted is an attack on the plaintiff's pleadings." R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist. , 568 S.W.3d 420, 424 (Mo. banc 2019) (quoting In re T.Q.L. , 386 S.W.3d 135, 139 (Mo. banc 2012) ). "Such a motion is only a test of the sufficiency of the plaintiff's petition." Id. (quoting In re T.Q.L. , 386 S.W.3d at 139 ). "When considering whether a petition fails to state a claim upon which relief can be granted, [we] must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader." Id. (quoting Bromwell v. Nixon , 361 S.W.3d 393, 398 (Mo. banc 2012) ). "The Court does not weigh the factual allegations to determine whether they are credible or persuasive." Id. (quoting Bromwell , 361 S.W.3d at 398 ). "Instead, [we] review[ ] the petition to determine if the facts alleged meet the elements of a recognized cause of action...." Id. (quoting Bromwell , 361 S.W.3d at 398 ). "In order to withstand the motion [to dismiss], the petition must invoke ‘substantive principles of law entitling plaintiff to relief and ... ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial.’ " State ex rel. Henley v. Bickel , 285 S.W.3d 327, 329-30 (Mo. banc 2009) (quoting State ex rel. Union Elec. Co. v. Dolan , 256 S.W.3d 77, 82 (Mo. banc 2008) ). "If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim." Lynch v. Lynch , 260 S.W.3d 834, 836 (Mo. banc 2008).

Analysis

Hill raises four points on appeal related to the dismissal of her claim of negligence. She argues that the motion court erred in dismissing her negligence claim against Freedman because (1) Missouri substantive law applies, in that the car accident occurred in Missouri and the effects and injuries first occurred in Missouri; (2) Freedman is not immune from suit, in that the KTCA does not apply to a personal-capacity claim brought under Missouri law; (3) comity does not prohibit Hill's negligence claim, in that comity does not bar suits against government employees or contractors for their own personal acts and omissions; and (4) Hill's negligence claim is not barred by workers’ compensation, in that this case is governed by Missouri substantive law, there was an affirmative negligent act, and the suit claims remedies not obtainable under the workers’ compensation system. Each of Hill's points on appeal rests on application of Missouri law to her negligence claim. Thus, we begin our analysis by determining whether Missouri or Kansas law governs her claim.

According to Hill's second amended petition, Freedman's allegedly negligent act and Hill's resulting injury occurred in Missouri. Hill argues that the general choice-of-law rule is to apply the law of the state where the conduct and injury occurred (here, Missouri), citing Livingston v. Baxter Health Care Corp. , 313 S.W.3d 717, 722 (Mo. App. W.D. 2010). But the general rule is subject to exceptions. And Hill's second amended petition indicates that one such exception applies here. Hill acknowledges that, following her injury, she applied for and received compensation under Kansas's Workers Compensation Act.⁶ Hill's decision to pursue that remedy means that Kansas law governs issues related to her injury. See McLendon v. Kissick , 363 Mo. 264, 250 S.W.2d 489, 493 (Mo. 1952) ("[T]he fact remains that plaintiffs chose to collect compensation under the Kansas law. They are bound by their choice."); see also Farnham v. Daar, Inc. , 184 F. Supp. 809, 811 (W.D. Mo. 1960) ("Missouri will follow the law of the state where the employee accepted compensation, even though the employee is injured in Missouri.").

According to Hill, the principle that Missouri law follows the law of the state where workers’ compensation benefits are awarded applies only to subrogation claims and not to claims asserted by the injured party. But, Hill's argument fails for two reasons. First, Missouri case law does not limit this principle to cases involving subrogation claims only. In fact, McLendon involved claims by the individual employees against the alleged tortfeasors, as well as claims by the employer and insurer, who filed intervention petitions. McLendon , 250 S.W.2d at 490. In that case, the employees, who were injured in Kansas and accepted benefits under the Kansas Workers Compensation Act, brought a third-party action in Missouri because their employment contracts were made in Missouri. Id. The...