Stiffelman v. Abrams

Citation655 S.W.2d 522
Decision Date16 August 1983
Docket NumberNo. 63728,63728
PartiesSherman STIFFELMAN, et al., Plaintiffs-Appellants, v. Maurice ABRAMS, et al., Defendants-Respondents.
CourtUnited States State Supreme Court of Missouri

Tom Mendelson, University City, for plaintiffs-appellants.

Ronald Willenbrock, Stephen M. Glassman, St. Louis, for defendants-respondents.

SEILER, Senior Judge.

The question presented is whether the action before us--a suit by his executors for damages for personal injuries received by an elderly nursing home resident, Joseph A. Stiffelman, from blows and kicks from the nursing home attendants over a period of several weeks, eventually resulting in death--is authorized by certain sections of our Omnibus Nursing Home Act, §§ 198.003-186 (hereinafter referred to as the Act). 1 We hold that it is and reverse the judgment entered in the trial court and remand the cause for further proceedings.

Plaintiffs appeal from the trial court order sustaining defendants' motion to dismiss for failure to state a claim upon which relief could be granted. Plaintiffs bring the action as executors of the estate of Mr. Stiffelman, a ninety-year old resident of the Evergreen Nursing Home and Rehabilitation Center, Inc., located in St. Louis County, Missouri.

Plaintiffs' dismissed petition alleges as the central occurrence severe injuries to Mr. Stiffelman caused from beatings inflicted upon him while a resident of the nursing home, culminating in his death several weeks later.

On a motion to dismiss for failure to state a claim for relief, we accept as true the facts properly pleaded, giving the averments a liberal construction, and making those reasonable inferences fairly deductible from the facts stated. Concerned Parents v. Caruthersville School District, 548 S.W.2d 554, 558 (Mo. banc 1977).

Count I of the two-count petition is brought under § 198.093. 2 Named as defendants in Count I are Maurice Abrams as "operator" and "owner" of the Evergreen facility, plus six other individuals and a Missouri corporation as additional owners of the facility. These designations track the Act's conferring of a private remedy "against any owner, operator or the agent of any owner or operator" of a nursing home facility. Section 198.093.3. These terms are defined in the Act's definitions section. See § 198.006. (13) and (14).

The material allegations of Count I are that the Evergreen facility was at all pertinent times a proprietary nursing home operating under the Act as a "skilled nursing facility" pursuant to a license issued to defendant Maurice Abrams, as operator, by the Missouri Department of Social Services; that the decedent, Joseph Stiffelman, entered the Evergreen facility as a paying resident on May 17, 1979 "for the purpose of receiving nursing and health care of which he was then in need"; that he died on May 31, 1980, from "blows, kicks, kneeings, or bodily throwings intentionally, viciously, and murderously dealt him from among the facility's staff over a period of approximately two to three weeks prior to his death"; that the beatings "were repeated and were received by the decedent at ninety years of age and in a frail, defenseless, and dependent condition"; that the beatings so administered to the decedent were "physically and mentally tortuous; that he was caused by them to live out his final days in agony and terror; that his physical injuries included thirteen fractures to his ribs, subpleural hemorrhaging, and marked lesions to his chest, flanks, abdomen, legs, arms and hands; that during and following the period of the beatings the decedent lay at the facility for days unattended and unaided as to the deterioration and grave suffering he was undergoing."

Count I recites the provisions of the Act, found in § 198.088, declaring, inter alia, that every covered facility "shall insure" that each resident admitted "[i]s free from mental and physical abuse." § 198.088.1(6)(g). Also quoted is pertinent language of the Act's private remedy provision, § 198.093, establishing a right of action for the deprivation of any right conferred by § 198.088. Plaintiffs allege that the injuries and death of decedent "were caused by the failure of defendant to fulfill their responsibilities of care and protection to him as imposed by the above quoted statutes and rules attendant to defendant's privilege of ownership and operation of a nursing home business", and that plaintiffs "should be entitled to an amount of $1,500,000 from defendants as survival damages for the great physical and mental pain and suffering endured by the decedent between the time of his beatings and his death" and "[a]s additional damages plaintiffs have incurred expenses for the burial of the decedent in the amount of $1,878.48 and for his final medical care in the amount of $2,206.00", for "total actual damages against defendants ... in the sum of $1,504,084.48." Additionally, Count I seeks punitive damages in the sum of $3,000,000 "by reason of the intentional nature of the physical and mental injuries inflicted upon the decedent." Attorney's fees are also requested in Count I based on the time reasonably expended in prosecution of the case.

Finally, Count I alleges the giving by plaintiffs to the Missouri attorney general of the notice required by § 198.093 and the attorney general's refrainment from official action, and, hence, by the fulfillment of those conditions, the vesting of the cause of action in plaintiffs.

Count II of the petition names the Evergreen corporation as sole defendant. This count alleges the making of a written contract of admission to the nursing facility between Evergreen and the decedent. A copy of the contract, titled "Admission Agreement and Contract for Health Care Services", dated May 17, 1979, is attached to the petition as an exhibit and incorporated into Count II. It is alleged in Count II that decedent's beatings, suffering, and death resulted from breaches of certain standards of care and personal rights expressly established by the contract. Among these are promises of "the best possible nursing care" and "the highest standards of care", with rights "to dignity in dying as in living", "to safe ... areas for living", "to physical security", and "to the best possible health care". For these contractual breaches, plaintiffs ask in Count II for actual damages of $1,504,084.48, these being identical in makeup to the actual damages requested in Count I.

The trial court sustained defendants' motion to dismiss both Count I and Count II on the ground that the petition failed to state a claim for relief, the reasons behind the motion being, in general, that the Missouri wrongful death statute, § 537.080, provides the exclusive remedy applicable to the circumstances alleged in plaintiffs' petition and, hence the remedy given by § 198.093 of the Act does not lie; that § 198.093 unconstitutionally discriminates against defendants and denies them their rights to due process and equal protection; that as to Count II (in which only the Evergreen corporation is sued), no action for wrongful death can be based on breach of contract.


Count I of the petition rests primarily on two related sections of the Act. The first is the so-called residents' bill of rights found at § 198.088. As quoted in pertinent part in plaintiffs' petition, it provides:

1. Every facility, in accordance with the rules applying to each particular type of facility, shall insure that:


(6) Each resident admitted to the facility:


(g) Is free from mental and physical abuse, and free from chemical and physical restraints ...


(i) Is treated with consideration, respect, and full recognition of his dignity and individuality ....

"Facility" is defined by the Act to include a "skilled nursing facility", which is also defined. Section 198.006(7) and (17). Defendants' facility is alleged to be such a skilled nursing facility.

The second section relied upon is the private enforcement provision of § 198.093. It allows any resident or former resident of a facility who is deprived of any right created by § 198.088, or "the estate of a former resident so deprived," to make a written complaint within 180 days of the deprivation or injury to the Missouri attorney general, who is to review the complaint and who may initiate thereupon any legal action available to him under the Act. But if the attorney general does not initiate action within 60 days, the complainant is empowered, within 240 days of filing the complaint, to bring a civil action "against any owner, operator or the agent of any owner or operator to recover actual damages." 3 In addition, "[t]he court may, in its discretion, award punitive damages which shall be limited to the larger of five hundred dollars or five times the amount of special damages, unless the deprivation complained of is the result of an intentional act or omission causing physical or emotional injury to the resident, and may award to the prevailing party attorney's fees based on the amount of time reasonably expended." The Act further provides that no defendant who pleads and proves as an affirmative defense "that he exercised all care reasonably necessary to prevent the deprivation and injury" complained of shall be liable under this section. § 198.093.4. The provisions of the Act are not to be construed "as abrogating, abridging or otherwise limiting the right of any person to bring appropriate legal actions in any court of competent jurisdiction to insure or enforce any legal right or to seek damages." § 198.093.6.

Defendants' arguments against applicability of the new statutory remedy to plaintiffs' Count I justify a brief review of the scheme of the Act as a whole and the concerns from which it emerged. The effort at this is aided considerably by the symposium issue of the St. Louis University Law Journal on nursing home law (Vol. 24, No. 4; March 1981). The following discussion of the Act and...

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