Dibrill ex rel. Wheeler v. Normandy Associates, Inc.
2012 Mo. App. LEXIS 1362
Mo. Ct. App.2012Background
- Plaintiff Trina Dibrill, resident at Normandy Nursing Center, sues Normandy, Kaufmann, and Mayes for injuries from McCoy's alleged rape.
- Plaintiff originally filed nine counts; multiple amendments followed; various motions to dismiss, strike punitive damages, and for more definite statements were issued over time.
- May 2, 2011 order dismissed several counts and directed reformulation of others; McCoy claims were limited; punitive damages were dismissed with prejudice.
- November 30, 2010, the court dismissed the third amended petition without prejudice for failure to file a healthcare affidavit; December 22, 2010 re-filed petition with expanded counts.
- January 13, 2012 order treated all Counts against Normandy, Kaufmann, and Mayes as dismissed with prejudice; counts against McCoy remained pending.
- On appeal, Plaintiff challenges only the dismissals with prejudice and the denial of leave to amend; the court affirms in part and reverses in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence per se viability | Dibrill pleaded regulations protecting residents; injuries were the type regulated. | Regulations were not shown to protect plaintiff or injury within scope; failure to plead class and injury. | Counts I–III state negligence per se; reversal of dismissal. |
| Breach of fiduciary duty viability | Kaufmann and Mayes owed a fiduciary duty to protect plaintiff. | No factual basis for fiduciary relationship; no trust/handling of plaintiff's affairs shown. | Count IV properly dismissed for lack of fiduciary relationship. |
| Negligent hiring and negligent supervision viability | Kauffman and Mayes knew or should have known McCoy’s dangerous propensities; negligent hiring/supervision caused injuries. | No particular dangerous proclivity identified; Reed v. Kelly controls on dismissal at pleadings stage. | Counts VII and IX survive; dismissal reversed. |
| Respondeat superior against defendants for McCoy’s rape | McCoy acted within course and scope; defendants liable for his acts. | Plaintiff failed to plead that McCoy’s act occurred in furtherance of defendants’ business; insufficient course-and-scope allegations. | Count X dismissed with prejudice as to McCoy; sustained dismissal of vicarious liability for McCoy’s conduct. |
| Punitive damages viability under § 538.210.5 | Willful/malicious misconduct alleged; punitive damages proper. | Punitive damages must be pleaded and proven; requires proper basis. | Count XI punitive damages claim not properly dismissed; punitive damages may be recoverable. |
Key Cases Cited
- Stiffelman v. Abrams, 655 S.W.2d 522 (Mo. banc 1983) (ONHA protects residents; nursing-home context referenced for statute interpretation)
- Reed v. Kelly, 37 S.W.3d 274 (Mo.App. E.D.2001) (negligent hiring/supervision summary judgment guidance; foreseeability issue on appeal)
- Gaines v. Monsanto Co., 655 S.W.2d 568 (Mo.App. E.D.1983) (foreseeability/causation matters for negligent hiring/supervision on appeal)
- City of Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606 (Mo.App. W.D.2009) (pleading punitive damages standard; citation for willful/malicious conduct on appeal)
- Moore v. Firstar Bank, 96 S.W.3d 898 (Mo.App. S.D.2003) (liberal leave to amend; abuse of discretion standard)
- Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609 (Mo.App. E.D.2001) (factors for granting leave to amend; liberal amendment policy; known facts)
- State ex rel. Green v. Neill, 127 S.W.3d 677 (Mo. banc 2004) (respondeat superior framework; employer liability for employee acts)