John Doe v. Ozark Christian Coll.

• Decision Date: 05 April 2019
• Docket Number: No. SD 35573,SD 35573
• Citation: 579 S.W.3d 220
• Parties: John DOE, a minor, BY AND THROUGH his Natural Mother, Mother DOE, Plaintiff-Appellant, v. OZARK CHRISTIAN COLLEGE, Defendant-Respondent.
• Court: Missouri Court of Appeals

579 S.W.3d 220

John DOE, a minor, BY AND THROUGH his Natural Mother, Mother DOE, Plaintiff-Appellant,

v.OZARK CHRISTIAN COLLEGE, Defendant-Respondent.

No. SD 35573

Missouri Court of Appeals, Southern District, Division One.

Filed April 5, 2019

Application for Transfer to Supreme Court Denied April 19, 2019

Application for Transfer Denied September 3, 2019

Attorneys for Plaintiff-Appellant: David M. Mayer, Phillip R. Martens, MONSEES & MAYER, P.C., Kansas City, Missouri, and Richard L. Rollings, Jr., Camdenton, Missouri.

Attorneys for Respondent: Monte P. Clithero, Warren E. Harris, and Nathan R. Taylor, TAYLOR, STAFFORD, CLITHERO & HARRIS, LLP, Springfield, Missouri.

Before Burrell, P.J., Rahmeyer and Lynch, J.J.

PER CURIAM.

John Doe ("Plaintiff") filed a negligence action against Ozark Christian College ("OCC") claiming that OCC negligently recommended a prospective employee ("Employee") to the employer church ("Employer"), as a direct result of which, two years after he was hired, Employee injured Plaintiff.¹ The trial court entered summary judgment in favor of OCC, concluding that Missouri has not defined or recognized a "duty to not make a negligent recommendation to a prospective employer." Because Plaintiff has failed to demonstrate the existence of such a duty, we affirm the trial court’s judgment.

Standard of Review

"Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no dispute, a right to judgment as a matter of law. Rule 74.04." ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993).

The summary judgment movant has the burden to establish a right to judgment as a matter of law "flowing from facts about which there is no genuine dispute." Id. at 378. When the party moving for summary judgment is a defending party, as is the case here, the movant’s right to summary judgment can be established by showing one of the following:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. at 381.

Factual and Procedural Background

The facts set out in the parties' statements of uncontroverted material facts² establish that OCC is an independent college that prepares students for ministry and that Employee was a student there from 1982 to 1989. On occasion, individual churches that need to fill open positions, such as and including Employer, contact OCC for recommendations. However, the individual churches, and not OCC, make the ultimate hiring decisions. OCC and Employer are separate entities. In his second amended petition ("petition"), Plaintiff alleges that, based upon OCC’s positive recommendation, Employer hired Employee in 2004. Plaintiff further alleged that, as a result of that employment, Employee sexually abused Plaintiff from 2006 through 2010.

OCC filed a motion for summary judgment. In that motion, OCC contended that assuming all factual allegations in Plaintiff’s petition are true, Plaintiff’s negligence claim nevertheless failed as a matter of law because, in giving an employment recommendation to Employer, OCC owed no duty to Plaintiff.³ The trial court agreed with OCC and entered judgment in its favor, concluding that:

The first question is what duty was owed by OCC to [Employer]? Is there a duty to not make a negligent recommendation to a prospective employer, whether it come[s] from another employer or an education institution? Plaintiff admits that [he] cannot find a Missouri case that holds such a duty exists. There are other states that have reached that conclusion, California, New Mexico and Texas, but the Missouri legislature has not defined such a cause of action and the Missouri Courts have not recognized one. This court declines to create such a cause of action now.

Plaintiff timely appeals the trial court’s judgment.

Discussion

No Existing Common Law Duty Identified by Plaintiff

"In any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant’s breach proximately caused the plaintiff’s injury." Wieland v. Owner-Operator Servs., Inc. , 540 S.W.3d 845, 848 (Mo. banc 2018).

" ‘Whether a duty exists is purely a question of law.’ " Hoffman v. Union Elec. Co. , 176 S.W.3d 706, 708 (Mo. banc 2005) (quoting Lopez v. Three Rivers Elec. Coop., Inc. , 26 S.W.3d 151, 155 (Mo. banc 2000) ). "A duty to exercise care can be imposed by a controlling statute or ordinance, assumed by contract, or imposed by common law under the circumstances of a given case." Bowan ex rel. Bowan v. Express Med. Transporters, Inc. , 135 S.W.3d 452, 457 (Mo. App. 2004) (citing Scheibel v. Hillis , 531 S.W.2d 285, 288 (Mo. banc 1976) ). Plaintiff proffers no statutory, ordinal, or contractual basis bearing upon the facts here supporting the existence of a duty upon OCC toward Plaintiff in making its employment recommendation of Employee to Employer.

Rather, conceding that OCC had no duty to provide an employment recommendation in the first instance, Plaintiff claims that

[c]onsistent with existing Missouri law and cases from other states, Missouri should recognize that once a defendant undertakes to provide a recommendation to a perspective [sic] employer, the defendant has a duty to provide a non-negligent recommendation if the defendant knows or has reason to know that a negligent recommendation involves an unreasonable risk of injury to the perspective [sic] employer or third-parties.

(Emphasis added). More precisely, Plaintiff claims that Missouri’s common law has always imposed this duty upon anyone who makes an employment recommendation and that all that remains is for this court to simply "recognize" that existing duty.

In resolving this claim, we initially note that the Missouri Court of Appeals is an error-correcting court, whereas the Supreme Court of Missouri is a law-declaring court. State v. Freeman , 269 S.W.3d 422, 429 (Mo. banc 2008) (Wolff, J., concurring). Accordingly, if a trial court erroneously fails to apply an existing common-law duty, it is within the purview of our court to correct that error. The declaration of a new common-law duty, however, is not within our purview but, rather, lies squarely within the law-declaring function of our supreme court. See id. at 429-30.

Plaintiff’s argument implicitly concedes that no Missouri case has addressed or recognized a common-law duty of care upon a person or entity to either a prospective employer or a third party in making an employment recommendation. Rather, in the absence of such authority, Plaintiff offers four reasons as to why that common-law duty exists in Missouri’s common law waiting only for recognition:

• OCC assumed the duty and "[s]uch duty is reflected in the language of section 324A of the Restatement (Second) of Torts."

• Section 311 of the Restatement (Second) of Torts imposes a duty and liability on OCC under the facts of this case for negligent misrepresentation involving risk of physical harm.

• Other states have recognized a duty in their common law to not provide a negligent recommendation.

• Public policy factors "support imposition of a duty on OCC not to provide an inaccurate and incomplete recommendation in this case."

None of these reasons support the existence of a duty, but rather contemplate the declaration of a new common-law duty. Such a declaration is not within our power.

Section 324A of the Restatement (Second) of Torts ("section 324A")

Plaintiff concedes that "[OCC] did not have any duty to provide [Employee’s] name to [Employer] or to provide a recommendation regarding [Employee] when asked by [Employer]." Rather, Plaintiff asserts that OCC’s gratuitous provision of an employment recommendation to Employer was an assumption of a duty to him to exercise reasonable care in doing so.

As Plaintiff asserts, "Missouri courts have recognized that a duty may be assumed or undertaken, and when so assumed, a defendant must exercise reasonable care in carrying out the duty. Such a duty is reflected in the language of [section 324A]." Bowman v. McDonald’s Corp. , 916 S.W.2d 270, 287 (Mo. App. 1995) (overruled on other grounds by Richardson v. QuikTrip Corp. , 81 S.W.3d 54, 63 n.9 (Mo. App. 2002) ) (internal citations omitted). "We look to ... [section 324A] as the touchstone for whether a defendant has assumed a duty toward a third person." Berliner v. Milwaukee Elec. Tool Corp. , 501 S.W.3d 59, 67 (Mo. App. 2016).

Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

The threshold application issue of section 324A is whether the defendant is "[o]ne who undertakes ... to render services to another." Thus, whether OCC assumed an obligation or intended to render services for the benefit of Employer is an elemental fact ("threshold elemental fact") that Plaintiff must plead and prove in order to cross the threshold for establishing OCC’s section 324A duty of care to Plaintiff. See Smith v. Allendale Mut. Ins. Co ., 410 Mich....