Jamierson v. Dale, WD
| Decision Date | 09 May 1984 |
| Docket Number | No. WD,WD |
| Parties | Diane JAMIERSON, Marvin Jamierson and Diane Jamierson as next friend for Mark Jamierson, Plaintiffs-Appellants, v. Virginia & Luther DALE, d/b/a Dale's Academy, and Jeanne Halcheck, Defendants-Respondents. 34663. |
| Court | Missouri Court of Appeals |
Steven J. Streen and Lonnie W. Harris, Kansas City, for plaintiffs-appellants.
John Ashcroft, Atty. Gen., and William F. Arnet, Asst. Atty. Gen., Jefferson City, for defendants-respondents.
Before SHANGLER, P.J., and KENNEDY and LOWENSTEIN, JJ.
The trial court granted summary judgment against plaintiffs in favor of defendant Halcheck in a suit for damages for personal injuries growing out of plaintiffs' preschool son's fall from a seesaw while attending Dale's Academy. The plaintiffs have appealed. The judgment is affirmed.
Plaintiffs' son was enrolled at Dale's Academy at 6242 Swope Parkway in Kansas City. On May 21, 1974, he is alleged to have fallen from a seesaw on the Academy playground, sustaining certain injuries. One of the causes of the injuries was alleged to be that the area under the seesaw from which he fell was a hard, non-resilient substance. A regulation of the Missouri Division of Family Services required of licensed day care centers, of which Dale's Academy was one, that the area under playground equipment from which children might fall be surfaced with a resilient material "such as sand, grass, tanbark, rubber matting and the like." 13 C.S.R. 40-63.040.3 E. The regulation had been adopted by the Missouri Division of Family Services under the authority of § 210.221, RSMo 1969.
The action was brought against the proprietor of Dale's Academy and defendant Halcheck, but the claim against Dale's Academy had been settled and the action dismissed as to that defendant. The lawsuit proceeded against defendant Halcheck.
Defendant Halcheck was a "Day Care Program Representative" in the employ of the Division of Family Services. Among her duties was the duty to inspect licensed day care centers--of which Dale's Academy was one, as we have already noticed--for their compliance with the licensing regulations. She made these inspections from time to time during a period of years before the fall and the resultant injuries which are involved in this lawsuit, which occurred on May 21, 1974. When these inspections were made she observed that the area under the seesaw was not of a resilient material, as required by the regulations. It is not clear whether she noted this violation in her written reports (these reports were apparently in the trial court file, but they have not been furnished to us). In any case she had recommended the issuance of the license under which Dale's Academy was operating at the time of the fall and had taken no measures to revoke the license. Plaintiffs' claim against Halcheck is based upon her failure to perform her duties of inspection and enforcement. Halcheck claims her duties were "public duties", the omission or negligent performance of which gave plaintiffs no remedy against her.
The "public duty" rule denies a civil action against public employees for damages for negligence arising out of duties owed to the public at large. Sherrill v. Wilson, 653 S.W.2d 661, 669 (Mo. banc 1983).
The statutes and regulations here involved, insofar as they place a duty of enforcement upon defendant Halcheck, prescribe a duty to the public at large. Plaintiffs argue that the statutes and regulations here involved were meant for the benefit of a limited class, namely, children attending day care centers, and that defendant Halcheck's duties ran to that limited class rather than to the public at large. They attempt by this argument to take this case out of the public duty rule.
Defendant Halcheck's duty, however, was not to that discrete class of children attending day care centers. It may be that violation of the regulation by Dale's Academy would...
To continue reading
Request your trial
-
DOE A v. Special Sch. Dist. of St. Louis County
...the Missouri statute they fail to state a cause of action. See Lawyer v. Kernodle, 721 F.2d 632 (8th Cir.1983); Jamierson v. Dale, 670 S.W.2d 195, 196-97 (Mo.Ct.App.1984). Though plaintiffs' arguments are somewhat unclear, they apparently argue that defendants had a common law duty — indepe......
-
Smith v. Finch
...duty to [the plaintiff] to find, collect and analyze evidence exonerating him in particular." Id. at 667. See also Jamierson v. Dale , 670 S.W.2d 195, 196 (Mo. Ct. App. 1984) (day care inspector who negligently failed to report a violation that led to injury of a child was protected by the ......
-
State ex rel. Twiehaus v. Adolf
...centers did not give rise to a cause of action by the parents of a child injured as a result of an unreported violation. Jamierson v. Dale, 670 S.W.2d 195 (Mo.App.1984); see also Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967) (no private duty owed by building inspector to person inj......
-
P.W. v. Kansas Dept. of Social and Rehabilitation Services
...these circumstances, SRS's statutory duty was owed to the public at large and not specifically to the plaintiffs. See Jamierson v. Dale, 670 S.W.2d 195, 196 (Mo.App.1984) (duty under day care licensing statutes and regulations is to public at K.S.A. 65-521 gives KDHE the discretion to "deny......