Introduction
Trina Dibrill (Plaintiff) by her next friend and mother, Annginette Wheeler, appeals the trial court judgment in favor of Normandy Nursing Center, Kerry Kauf-mann, and Clara Mayes (Defendants). Plaintiff claims the trial court: (1) erred
Factual and Procedural Background
On February 23, 2010, Plaintiff filed a nine-count petition against Defendants and Santonio McCoy, a former housekeeper at Normandy, seeking damages for injuries caused by McCoy’s alleged rape of Plaintiff. At the time of the alleged rape, Plaintiff was a resident of Normandy Nursing Center (Normandy), defendant Kaufmann owned Normandy, and defendant Mayes was Normandy’s director of nursing. In her petition, Plaintiff asserted claims of negligence, assault and battery, negligent hiring and retention, negligent supervision, false imprisonment, respondeat superior, and intentional and negligent infliction of emotional distress. Defendants filed a motion for a more definite statement and a motion to strike Plaintiff’s claims for punitive damages. Before the court could rule on Defendants’ motion, Plaintiff filed a first amended petition. On May 25, 2010, the trial court granted Defendants’ motion for more definite statement and struck Plaintiffs claims for punitive damages.
Plaintiff filed a second amended petition on June 4, 2010 alleging actions for: negligence against Defendants and McCoy; assault and battery against McCoy; negligent hiring and retention against Defendants; negligent supervision against Defendants; false imprisonment against McCoy; respondeat superior against Defendants; and intentional infliction of emotional distress against McCoy, Kauf-mann, and Mayes. In response, Defendants filed a motion to dismiss Plaintiffs causes of action for negligent hiring and retention, respondeat superior, and intentional infliction of emotion distress. Defendants also filed a motion for more definite statement and motions to strike Plaintiffs claims for attorneys’ fees and punitive damages. On July 22, 2010, the trial court: dismissed Plaintiffs claims for negligent hiring, negligent supervision, re-spondeat superior, and intentional and negligent infliction of emotion distress; struck Plaintiffs claims for punitive damages and attorneys’ fees; and granted Defendants’ motion for more definite statement.
On August 11, 2010, Plaintiff filed a third amended petition, to which Defendants responded with additional motions to dismiss and motions for more definite statement. On November 30, 2010, the trial court dismissed Plaintiffs third amended petition without prejudice for failure to file a healthcare affidavit.
On December 22, 2010, Plaintiff re-filed her petition stating claims for: negligence per se against Normandy, Kaufmann, and Mayes (Counts I, II, III); breach of fiduciary duty against Kaufmann and Mayes (Count IV); battery against McCoy (Count V); assault against McCoy (Count VI); negligent hiring against Defendants (Count VII); false imprisonment against McCoy (Count VIII); negligent supervision against Defendants (Count IX); re-spondeat superior against Defendants (Count X); and aggravating circumstances/punitive damages against Defendants and McCoy (Count XI).
Plaintiff filed a motion to amend and/or alter the trial court’s judgment of June 15, 2011, and the trial court heard arguments on the motion on September 16, 2011. While Plaintiffs motion to amend and/or alter the judgment was pending, Plaintiff filed a notice of appeal. After this court issued an order to show cause, Plaintiff filed with the trial court a motion to certify the entire court file as a final order/judgment pursuant to Rule 74. After hearing arguments and receiving each party’s proposed orders, the trial court issued an order on January 13, 2012 stating:
By virtue of the Court’s two rulings on May 2, 2011 and June 15, 2011 combined, the Court is now treating all Counts against Normandy Nursing Center, Kerry Kaufman [sic], and Clara Mayes as dismissed with prejudice, and is now certifying in this Order that the dismissals of all Counts against Normandy Nursing Center, Kerry Kaufman [sic], and Clara Mayes are with prejudice under Rule 74.01(a) and (b) of the Missouri Rules of Civil Procedure, and there is no just reason for delay.
Plaintiff appeals.
Standard of Review
Rule 55.27(a)(6) allows a defendant to file a motion to dismiss a plaintiffs petition for failure to state a claim upon which relief can be granted. Rule 55.27(a)(6); Capitol Group, Inc. v. Collier,
We review the denial of leave to amend a petition for an abuse of discretion, and we will not disturb the trial court’s decision absent a showing that the trial court palpably and obviously abused its discretion. Zubres Radiology v. Providers Ins. Consultants,
Discussion
1. Motion to Dismiss
In her first point on appeal, Plaintiff claims the trial court erred in dismissing with prejudice each count of her petition. More specifically, Plaintiff contends that her petition stated claims upon which relief can be granted and was sufficient to withstand a motion to dismiss.
A. Negligence Per Se Claims
In her petition, Plaintiff alleged three counts of negligence per se — Count I against Normandy, Count II against Kauf-mann, and Count III against Mayes. Plaintiff based her negligence per se claim against Defendant Normandy on violations of state regulations issued by the Missouri Department of Health and Senior Sendees pursuant to its authority under the Missouri Omnibus Nursing Home Act (ONHA). Mo.Rev.Stat. § 198.079.
In them motion to dismiss and in them brief, Defendants argued that Plaintiff failed to state claims for negligence per se because she “failed to allege that: 1) she is within the class of persons intended to be protected by the regulations she cites, and 2) the injury alleged is of the nature that the regulations she cites were designed to prevent.” Where, as here, the trial court did not provide reasons for its dismissal of the petition, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss, and we will affirm if dismissal was appropriate on any grounds stated therein. Fenlon v. Union Elec. Co.,
“[T]he violation of a statute, which is shown to be the proximate cause of the injury, is negligence per se.” Imperial Premium Fin., Inc. v. Northland Ins. Co.,
Missouri courts have not specifically considered whether a nursing home resident such as Plaintiff is within the class of persons intended to be protected by the cited regulations. However, in Stiffelman v. Abrams,
Plaintiffs petition alleged that Plaintiff was “an individual, disabled vulnerable person, residing in St. Louis County, Missouri at the Normandy Nursing Center” and she “was unable to provide for her own health and safety as a result of severe mental retardation and cerebral palsy, which rendered her mentally and physically disabled.” Plaintiff further pleaded that Defendants violated numerous regulations designed to protect residents of skilled nursing and long-term care facilities, including, inter alia: 19 CSR 30-88.010(22), providing that “[ejach resident shall be free from abuse,” defined as “the infliction of physical, sexual, or emotional injury or harm”; 19 CSR 30-85.042(16), providing that “[ajll persons who have any contact with the residents in the facility shall not knowingly act or omit any duty in a manner which would materially and adversely affect the health, safety, welfare or property of resident”; 19 CSR 30-85.042(37), requiring all facilities to “employ nursing personnel in sufficient numbers and with sufficient qualifications to provide nursing and related services which enable each resident to attain or maintain the highest practicable level of physical, mental and psychosocial well-being”; 19 CSR 30-85.042(66), providing that “[ejach resident shall receive twenty-four (24)-hour protective oversight and supervision”; and 19 CSR 30-85.042(67), providing that “[ejach resident shall receive personal attention and nursing care in accordance with his/ her condition and consistent with current acceptable nursing practices.” Plaintiff further pleaded that Defendants violated them duty of care and, in so doing, “directly and proximately caused” Plaintiff to suffer the “severe, permanent and progressive injuries” caused by McCoy’s physical assault and rape of Plaintiff.
Giving the pleadings their broadest intendment, we conclude that, contrary to Defendants’ contention, Plaintiffs petition asserts facts establishing that she was a member of the class of persons the regulations were intended to protect and her
B. Breach of Fiduciary Duty
In Count IV of her petition, Plaintiff alleged that defendants Kaufmann and Mayes breached their fiduciary duty to “protect [Plaintiff] from harm and injury.” To prevail on a breach of fiduciary duty claim, a plaintiff must establish that: (1) a fiduciary duty existed between the parties; (2) the defendant breached the duty; and (3) the breach caused the plaintiff to suffer harm. Western Blue Print Co., LLC v. Roberts,
(1) one party must be subservient to the dominant mind and will of the other party as a result of age, state of health, illiteracy, mental disability, or ignorance;
(2) things of value such as land, monies, a business, or other things of value, which are the property of the subservient party, must be possessed or managed by the dominant party; (3) there must be a surrender of independence by the subservient party to the dominant party; (4) there must be an automatic and habitual manipulation of the actions of the subservient party by the dominant party; and (5) there must be a showing that the subservient party places a trust and confidence in the dominant party.
Roth v. Equitable Life Assur. Soc. of U.S.,
Plaintiff alleges that the following allegations establish that defendants Kauf-mann and Mayes had a fiduciary duty to Plaintiff that they breached:
1.Plaintiff Trina Dibrill has been an individual, disabled vulnerable person, residing in St. Louis County, Missouri at the NORMANDY NURSING CENTER.
2. Trina Dibrill at all times relevant to this cause, was unable to provide for her own health and safety as a result of severe mental retardation and cerebral palsy, which rendered her mentally and physically disabled. Dibrill had a statutory and regulatory right to have her health, safety and well-being safeguarded, including the right to be free from sexual abuse, physical abuse and assault.
3. Trina Dibrill, at all times relevant to this cause was a Medicaid and or Medicare beneficiary occupying a Medicaid bed at Normandy Nursing Center.
4.Defendant Normandy Associations Inc. d/b/a/ Normandy Nursing Center ... has been a Missouri corporation operating a long term care and skilled nursing facility in the State of Missouri, representing and holding itself out to the public, and in particular to Plaintiff Trina Dibrill, as a facility specializing in providing 24 hour licensed nursing care and protective oversight to disabled adults like plaintiff Trina Dib-rill in exchange for consideration in the form of contract proceeds from the State and Federal authorities, based upon plaintiffs special qualifying factors.
13. Defendants, Normandy, Kaufmann and Mayes had a fiduciary duty to protect Plaintiff from harm and injury.
60. By reason of their position of superior knowledge, authority[,] trust and/or confidence with regard to Plaintiff, Defendants] Kaufmann and Mayes had a fiduciary duty to Plaintiff, including a duty to protect her from harm and injury.
61. Their aforesaid acts (INCLUDED IN THE Facts and Occurrences common to all Counts section of this Petition) by Kaufmann and Mayes were in breach of their fiduciary duties to Plaintiff.
Defendants Kaufmann and Mayes moved to dismiss Plaintiffs breach of fiduciary duty claim on the grounds that Plaintiff failed to establish the existence of a fiduciary relationship. More specifically, Plaintiff did not plead that Kaufmann and Mayes had responsibility for Plaintiff’s property or manipulated Plaintiffs actions. We agree that Plaintiff failed to support her breach of fiduciary duty claim with factual averments demonstrating the existence of a fiduciary relationship.
C. Negligent Hiring and Negligent Supervision
In Counts VII and IX, Plaintiff alleged claims of negligent hiring and negligent supervision. To establish a claim for negligent hiring, a plaintiff must allege that: (1) the employer knew or should have known of the employee’s dangerous proclivities; and (2) the employer’s negligence was the proximate cause of the plaintiffs injuries. Gibson v. Brewer,
A master is under the duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
Id. at 247 (quoting RESTATEMENT (SECOND) OF TORTS § 317 (1965)). Both causes of action “require evidence that would cause the employer to foresee that the employee would create an unreasonable risk of harm outside the scope of his employment.” Reed v. Kelly,
In support of her claim for negligent hiring, Plaintiff alleged that: State law required Defendants to perform pre- and post-employment background checks of McCoy; McCoy had “a criminal back
Defendants moved to dismiss Plaintiffs claims of negligent hiring and negligent supervision on the grounds that Plaintiff “failed to allege a paHicular dangerous proclivity of McCoy or that his alleged misconduct was consistent with a paHicu-lar dangerous proclivity.” (emphasis original). More specifically, Defendants argued that Plaintiff failed to identify a particular proclivity or background consistent with the alleged sexual assault. In support of this argument, Defendants rely on Reed v. Kelly,
Although factually similar, Reed is procedurally distinguishable from the instant case. Reed was decided on a motion for summary judgment. By contrast, here the trial court dismissed Plaintiffs case for failure to state a claim. Whether the nature of McCoy’s criminal history was such that Defendants knew or should have known that McCoy had the particular dangerous proclivity of beating and sexually assaulting a nursing home resident is a fact issue that cannot be resolved on a motion to dismiss for failure to state a claim. “Matters of foreseeability and proximate cause must be left for the court and jury after presentation of evidence.” Gaines,
D. Respondeat Superior
Plaintiff also argues that the trial court erred in dismissing with prejudice Count X, alleging respondeat superi- or.
Under the doctrine of respon-deat superior, an employer is liable for the misconduct of an employee where that employee is acting within the course and scope of his employment. State ex rel. Green v. Neill,
In the fact section of her petition, Plaintiff alleged that, at the time McCoy assaulted her, McCoy was “an on-duty employee, functioning in the course and scope of his employment for Normandy.” However, Plaintiff does not allege that McCoy committed the alleged rape “in furtherance of’ Defendants’ business or interests. Cf. Young v. Stensrude,
E. Punitive Damages
Finally, Plaintiff contends that the trial court erred in dismissing with prejudice her claim for punitive damages contained in Count XI of the petition. Plaintiff and Defendants agree that Section 538.210.5 governs punitive damages in this case.
Punitive damages must be pleaded and proved. City of Greenwood v. Martin Marietta Materials, Inc.,
Plaintiffs petition asked for punitive damages and asserted that Defendants failed to: protect her from harm or injury; maintain adequate staffing and oversight; supervise and train employees; and perform an adequate pre-employment background screening and periodic post-employment background checks on McCoy. Plaintiff further alleged that these acts were “willful, wanton, malicious and outrageous because of Kaufmann’s and Mayes’s reckless indifference to Plaintiffs rights and or [sic] showed Kaufmann’s and Mayes’s complete indifference to or conscious disregard for Plaintiffs safety.”
Liberally granting Plaintiff all favorable inferences from her pleading, the petition provided sufficient facts to demonstrate that the wrongful acts complained of were done willfully, wantonly, or maliciously. We find that the facts, coupled with the allegation that such entitled Plaintiff to punitive damages, fairly informed Defendants of the nature of the demand. See, e.g., City of Greenwood,
2. Motion for Leave to Amend Petition
In her second point on appeal, Plaintiff claims the trial court abused its discretion in denying her leave to amend her petition. Specifically, Plaintiff contends that her proposed first amended petition included factual allegations that were not available at the time of the initial filing, the amendment was timely and would not have prejudiced Defendants, and the trial court’s denial of her motion for leave to amend prevented her from pursuing a valid cause of action.
Because we reverse the trial court’s dismissal of Plaintiffs claims of negligence per se (Counts I, II, and III), negligent hiring (Count VII), negligent supervision (Count IX), and punitive damages (Count XI) we need not address Plaintiffs contention that the trial court should have al
Rule 67.06 provides that “[o]n sustaining a motion to dismiss a claim ... the court shall freely grant leave to amend.” Rule 67.06. Similarly, Rule 55.33(a) states that leave to amend a pleading “shall be freely given when justice so requires.” Rule 55.33(a). While both rules stress liberality in permitting amendments to pleadings, they do not confer an absolute right to file even a first amended petition. Moore v. Firstar Bank,
To determine whether to grant leave to amend a petition, courts consider: “the reasons for the moving party’s failure to include the matter in the original proceedings; whether there is any prejudice to the non-moving party; and whether there will be hardship to the party requesting amendment if the request is denied.” Trans World Airlines, Inc. v. Associated Aviation Underwriters,
Plaintiffs proposed amendments to Counts IV and X and her added counts of negligence and breach of contract, do not present any new facts or circumstances that she could not have raised earlier. See, e.g., Trans World Airlines,
Conclusion
The judgment of the trial court is affirmed in part and reversed in part.
Notes
. Plaintiff's petition included an additional count, also numbered Count XI, for negligent infliction of emotional distress against Kauf-mann and Mayes. As Plaintiff does not challenge the trial court’s dismissal of that count, we will not address it.
. Contrary to Plaintiff’s assertion on appeal, the trial court did not dismiss with prejudice each of Plaintiff's eleven counts. The trial court's order of January 13, 2012, dismissed with prejudice only those counts against Defendants. The trial court did not dismiss Plaintiff’s claims against McCoy. As a result, Plaintiff's Count V, battery; Count VI, assault; and Count VIII, false imprisonment, and Count XI, punitive damages, remain pending against McCoy. Because the trial court did not dismiss Plaintiff's causes of action against McCoy, we need not address Plaintiff's claims of error as they relate to those counts.
. All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
. Plaintiff argues in her appellate brief that "[b]y the very nature of Plaintiff’s position as resident^] she was an invitee to the nursing facility, and the nursing facility, by and through its officers owed to her a fiduciary duty to protect her from harm." Plaintiff cites no authority in support of the proposition that a nursing facility owes its invitees a fiduciary duty.
. We note that Defendants Kaufmann and Mayes have not challenged Plaintiff’s claims for negligent hiring and negligent supervision on the basis that, as individuals, they are not appropriate defendants with respect to these causes of action.
. Respondeat superior is not a cause of action but rather a theory under which an employer is held responsible for the misconduct of a employee where that employee is acting within the course and scope of his employment. See State ex rel. Green v. Neill,
.Plaintiff brought her claims for respondeat superior against all three defendants. The proper defendant in an action based on a theory of respondeat superior is the employer. See, e.g., Papa John’s USA, Inc. v. Allstate Ins. Co.,
. Given the parties’ agreement, we have not been asked to resolve, and are therefore not resolving, whether all of the causes of action in this case with respect to the various defendants are governed by Section 538.210. We note, however, that Section 538.210 governs causes of action only where the “true claim” sounds in medical malpractice. Devitre v. Orthopedic Ctr. of St. Louis LLC,
. Section 538.205(4) defines the term “health care provider” to include:
[A]ny physician, hospital, health maintenance organization, ambulatory surgical center, long-term care facility including those licensed under chapter 198, RSMo, dentist, registered or licensed practical nurse, optometrist, podiatrist, pharmacist, chiropractor, professional physical therapist, psychologist, physician-in-training, and any other person or entity that provides health care services under the authority of a license or certificate.
Mo.Rev.Stat. § 538.205(4). "Health care services” are defined as:
[A]ny services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or,if the health care provider is an institution, in the ordinary course of furthering the puiposes for which the institution is organized. Professional services shall include, but are not limited to, transfer to a patient of goods or services incidental or pursuant to the practice of the health care provider’s profession or in furtherance of the purposes for which an institutional health care provider is organized.
Mo.Rev.Stat. § 538.205(5).