A.R.H. v. W.H.S., 63962

CourtCourt of Appeal of Missouri (US)
Citation876 S.W.2d 687
Docket NumberNo. 63962,63962
PartiesA.R.H., Plaintiff/Appellant, v. W.H.S., Defendant, and Y.L.S., Defendant/Respondent.
Decision Date29 March 1994

Laurence D. Mass, Clayton, for appellant.

James Parker Lemonds, St. Louis, for respondent.

CRAHAN, Judge.

A.R.H. 1 ("Plaintiff") appeals the trial court's order granting judgment on the pleadings in favor of Defendant, Y.L.S. ("Grandmother"), on her claim for damages based on Grandmother's alleged negligent supervision. Plaintiff alleged that she was sexually molested by Grandmother's husband, W.H.S. ("Step-grandfather"), at various times when she had been entrusted as a minor to Grandmother's custody and care and when Grandmother knew or had reason to know of Step-grandfather's conduct. Summary judgment was granted on the ground that Grandmother owed no legal duty to Plaintiff to protect Plaintiff from sexual abuse by her husband or to warn others of the abuse so that they could protect Plaintiff. 2 We reverse and remand for further proceedings.

The trial court granted Grandmother's motion for summary judgment solely on the pleadings. Summary judgment may rest upon pleadings alone. Pennell v. Polen, 611 S.W.2d 323, 323 (Mo.App.1980). However, when unsupported by evidentiary material, defendant's motion for summary judgment becomes in effect a motion for judgment on the pleadings, similar to a motion to dismiss. Bakewell v. Mo. State Employees' Retirement, 668 S.W.2d 224, 228 (Mo.App.1984). A trial court can properly grant a motion for judgment on the pleadings only if the facts pleaded by the petitioners, together with the benefit of all reasonable inferences drawn therefrom, show that petitioners could not prevail under any legal theory. Id.

The petition alleges that Plaintiff's mother frequently entrusted Plaintiff to the care of her Grandmother and Step-grandfather and that from the time that she was eight years of age she and her sisters spent almost every weekend and most of each Christmas and summer vacation at Grandmother and Step-grandfather's home. When Plaintiff was eight years of age, she and her two older sisters told Grandmother that Step-grandfather had been sexually abusing them. Grandmother told them she "would take care of this" and that they should not tell their mother for fear that she would have a nervous breakdown. On at least two other occasions Plaintiff and her two older sisters told Grandmother of Step-grandfather's abuse. Grandmother again said she "would take care of it" and told them that they should not tell their mother. The acts of abuse continued from the time Plaintiff and her sisters first told Grandmother until Step-grandfather was prosecuted, when Plaintiff was about thirteen years of age. Step-grandfather was ultimately convicted of abuse.

On appeal, Plaintiff maintains that the foregoing allegations are sufficient to maintain a cause of action against Grandmother on a theory of "negligent supervision." Missouri courts have recognized such a cause of action in various settings. See, e.g., Rogger v. Voyles, 797 S.W.2d 844 (Mo.App.1990) (grandparents); Smith v. Archbishop of St. Louis, 632 S.W.2d 516 (Mo.App.1982) (schoolteacher); Swain v. Simon, 699 S.W.2d 769 (Mo.App.1985) (baby sitter). The duty to supervise is a narrow one and breach of such duty turns upon whether a reasonable person would recognize that an incident of the type alleged could occur and that steps should be taken to prevent it. Rogger, 797 S.W.2d at 846-47. However, the exercise of ordinary care may require more vigilance and caution when a child is involved if there is a potentially dangerous condition of which the supervisor is or should be aware. Id.

Plaintiff's petition alleges that Grandmother breached her duty to Plaintiff in the following respects: (1) Grandmother failed to prevent Step-grandfather from continuing the abuse and threats; (2) Grandmother failed to warn others who could prevent Step-grandfather from continuing the abuse and threats; (3) Grandmother failed to make sure that Plaintiff was not left alone in her home with Step-grandfather whereby he could continue to abuse and threaten Plaintiff; and (4) Grandmother failed in all other regards to protect Plaintiff from the abuse and threats of Step-grandfather.

Grandmother seeks to distinguish the foregoing cases recognizing a cause of action for negligent supervision on the ground that they involve situations where the defendant had the exclusive power to control the harm. Grandmother submits that she had no power or right to control the actions of Step-grandfather. Further, Grandmother maintains that to impose a duty upon her to take any of the actions to prevent the harm alleged in the petition would subject her to conflicting duties to her husband and the marital relationship on the one hand and to her grandchild on the other. Thus, Grandmother asserts that the imposition of a duty to protect Plaintiff under the circumstances alleged should be rejected on policy grounds.

We cannot agree that the cases recognizing a cause of action for negligent supervision can be fairly characterized as turning on the supervisor's control over the instrumentality that caused the harm. Rather, it is the obligation and ability to supervise and control the child, not the instrumentality that caused the harm, that is the decisive factor. Thus, in Smith v. Archbishop of St. Louis, supra, it was the schoolteacher's failure to control and supervise her pupils to prevent them from coming into contact with a lighted candle, not the failure to extinguish the candle, that formed the basis of liability. 632 S.W.2d at 522. Likewise, in Rogger v. Voyles, supra, grandparents' failure to supervise their 13 year old grandchild whom they allowed to drive a truck around their farm was found to be a proper basis for liability, regardless of whether defective brakes on the vehicle were a contributing cause of the accident. 797 S.W.2d at 847. Conversely, in Swain v. Simon, supra, where a babysitter accompanied a child as they petted an apparently friendly dog, the court upheld a directed verdict in the absence of any evidence that the dog's sudden and unanticipated attack on the child was foreseeable and could have been prevented by closer supervision. 699 S.W.2d at 773-74.

Grandmother urges, however, that unlike the situations at issue in Smith, Rogger and Swain, to impose a duty upon her under the facts alleged by Plaintiff would effectively hold her liable for the occurrence of conduct she did not have the exclusive power to control. Further, Grandmother maintains, the actions Plaintiff contends she should have taken would essentially force her to elect between two inconsistent duties--i.e., her duty to Granddaughter and her duty to her husband.

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