State ex rel. Twiehaus v. Adolf

• Decision Date: 25 March 1986
• Docket Number: No. 67323,67323
• Citation: 706 S.W.2d 443
• Parties: STATE ex rel. John TWIEHAUS, Relator, v. Honorable George A. ADOLF, Judge, Circuit Court, City of St. Louis, Respondent.
• Court: Missouri Supreme Court

Page 443

706 S.W.2d 443

STATE ex rel. John TWIEHAUS, Relator, v. Honorable George A. ADOLF, Judge, Circuit Court, City of St Louis, Respondent.

No. 67323.

Supreme Court of Missouri En Banc.

March 25, 1986.

William L. Webster, Atty. Gen., Ruth A. Przybeck, Asst. Atty. Gen., St. Louis, for relator.

David R. Swimmer, Barbara Blee Maille, St. Louis, for respondent.

ROBERTSON, Judge.

This is an action in prohibition. Relator seeks to prohibit respondent trial judge from proceeding further in the underlying tort suit against him, under the doctrine of official immunity. We issued our provisional rule, and now make that rule absolute.

I.

Relator is the superintendent of the St. Louis Developmental Disabilities Treatment Center, a state facility operating within the Department of Mental Health. The underlying action seeks to recover damages from relator, among others, for the wrongful death of a patient in that facility. Plaintiffs are the parents of the patient-decedent.

According to the amended petition, plaintiffs' decedent was killed when he jumped or fell from the window of his room in the facility. The basis for relator's liability is asserted in three counts. The first count alleges that relator was negligent in failing to do some or all of the following: to secure the window, to inspect and repair the window, to isolate decedent from the window, to warn decedent of its condition, or to follow existing "standards of monitoring facility maintenance and housekeeping services in such a way as to result in capital improvements necessary for patient safety." The basis for negligence under this count, taken in the light most favorable to plaintiffs, is that plaintiffs' decedent suffered from depression, aggressive behavior and mild retardation, and had a history of self-destructive behavior; that the metal bars and other restraints on the window of decedent's room had rusted and decayed; and, that relator was aware of both decedent's mental condition and the condition of the window. The first count also alleges that relator's conduct was reckless, grossly negligent, and in callous disregard for his duty to correct defects and provide a safe and secure environment.

The second count alleges that relator was negligent, grossly negligent and reckless in the hiring and orientation of employees and in the establishment, implementation or monitoring of written policies of patient surveillance and protection. The third count alleges that relator was negligent, grossly negligent and reckless in failing, in his supervisory capacity, to effect reasonable medical treatment of decedent's injuries.

Relator moved to dismiss the amended petition or, in the alternative, for summary judgment. The trial court denied relator's motion. In such circumstances, where it appears on the face of the pleadings that defendant is immune from suit as a matter of law, prohibition is an appropriate remedy. State ex rel. Missouri Department of Agriculture v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985).

II.

The general rule of official immunity is that

public officers acting within the scope of their authority are not liable for injuries arising from their discretionary acts or omissions, but they may be held liable for torts committed when acting in a ministerial capacity.

Kanagawa v. State, 685 S.W.2d 831, 835 (Mo. banc 1985).

Plaintiffs, on behalf of respondent, urge that relator breached a ministerial duty by failing to report the dangerous condition of the window to the Department of Mental Health, thus pretermitting capital improvements which may have prevented decedent's wrongful death. They contend that this duty is imposed on relator by operation of § 630.040.2, RSMo Cum.Supp.1984. That section provides:

2. The chief administrative officer of each facility shall keep the records and make the reports which the [D]epartment [of Mental Health] and the respective division deem necessary and advisable.

Id. Plaintiffs further hypothesize that the described report was required by the department. Notwithstanding the merits of such an hypothesis, plaintiffs' amended petition does not aver the existence of either a statutory or departmentally-mandated duty, nor does the petition allege the breach of such a duty. ¹ Absent these allegations, the pleadings are insufficient to state a claim which is not barred by the doctrine of official immunity as a matter of law.

Assuming, arguendo, that plaintiffs' petition can be read to plead a violation of a ministerial duty to make reports to the department on the condition of the facility imposed by § 630.040.2, no cause of action would have been stated. Any duty imposed by that statute runs in favor of the state as an entity and not toward individual patients or any other members of the public.

According to plaintiffs' hypothesis, the department requires relator to report on the condition of his facility, to the end that the department and ultimately state government can take steps to ensure future capital improvements. To the extent relator is permitted to exercise his discretion in making such reports (just as in performing other aspects of his maintenance function), the duty to exercise that discretion properly is one owed to his patient-charges. ² However, to the extent his discretion is eliminated and he is under a statutorily-sanctioned mandate to report specified conditions, relator's duty is one of compliance with the directives of his superiors and extends only to the department and the state as a whole.

Generally,

[t]he public duty doctrine recognizes that the duties of public officers are normally owed only to the general public and that a breach of such a duty will not support a cause of action by an individual injured thereby.

Bailey v. Town of Forks, 38 Wash.App. 656, 688 P.2d 526, 529 (1984); see also State v. Superior Court of Maricopa County, 123 Ariz. 324, 599 P.2d 777, 785 (banc 1979) (ordinarily no individual cause of action based on breach of duty by public official). More specifically, "a public official is liable to an individual for his failure to perform a ministerial duty imposed on him by statute only if the statute creates a duty to the individual." Nelson v. Freeman, 537 F.Supp. 602, 608 (W.D.Mo.1982), aff'd sub. nom. Nelson v. Missouri Division of Family Services, 706 F.2d 276 (8th Cir.1983), quoting Leger v. Kelley, 142 Conn. 585, 116 A.2d 429, 431 (1955).

In this regard, it is commonly stated that

where the law imposes on the officer the performance of ministerial duties in which a private individual has a special, direct, and distinctive interest, the officer is liable to such individual for any injury which he may proximately sustain in consequence of the failure to perform the duty at all, or to perform it properly.

Oyler v. State, 618 P.2d 1042, 1050 (Wyo.1980), quoting 67 C.J.S. Officers § 208, p. 686 (1978). Because the ministerial component of the hypothetical duty to report does not serve the special, direct, and distinctive interests of individual patients, it does not create a duty owed the individual, the breach of which provides the basis for a private cause of action.

Plaintiffs' hypothetical required reports in this case are those designed to provide state government with the information it deems fundamentally necessary to enable it to make decisions with regard to administration and/or funding of the system as a whole. In reporting as commanded, relator would be serving solely a state interest--that of obtaining objective, categorical information, on the basis of which to compare and prioritize competing needs within the system. To the extent the reporting requirement does not permit superintendents to exercise their discretion in determining what conditions should be considered material by the state, according to their understanding of the patients' needs, the duty to report is not responsive to those individual needs, and serves only the interests of the entire system.

In a similar case, it was held that a public officer's duty to report regulatory violations by child care 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 injured in building collapse in suit for negligent inspection).

Since the hypothesized duty to report on the part of relator fails to describe a ministerial duty owed to plaintiffs' decedent, no viable cause of action is pleaded and prohibition is appropriate. State ex rel. Dept. of Agriculture, supra, 687 S.W.2d at 181. It is irrelevant to the question of liability for breach of a ministerial duty that plaintiffs now characterize that breach as "willful defiance." Nelson, 537 F.Supp. at 611.

III.

Nevertheless, plaintiffs contend that, even if the statutory duty to report is discretionary, relator's violation of that duty is not immune because his "defiance" of this duty was "maliciously and willfully wrong," citing Reed v. Conway, 20 Mo. 22, 44 (1854).

As previously noted, plaintiffs' amended petition does not aver a breach of a statutory obligation, either ministerial or discretionary. Furthermore, plaintiffs do not contend that relator's violation of some duty other than the statutory duty to report was "willful and malicious," and therefore not immune. However, because prohibition is an extraordinary remedy which should only be employed in unequivocal cases, Derfelt v. Yocum, 692 S.W.2d 300, 301 (Mo. banc 1985), we will examine whether the allegations of the petition are sufficient to permit the underlying action to proceed against the relator under the exception to immunity invoked by plaintiffs. In doing so, we consider the allegations in the dual context of the hypothesized discretionary duty to report and the general discretionary duty of care.

Although it is stated a...