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,
II.
The genera] 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,
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 CunnSupp. 1984. That section provides:
*445 2. The chief administrative officer of each facility shall keep the records and make the reports which the [Department [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,
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,
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,
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,
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,
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 eases,
Derfelt v. Yocum,
Although it is stated a variety of ways, it is generally held that official immunity applies to all discretionary acts except those done in bad faith or with malice. State ex rel.
Funk v. Turner,
The relevant definition of bad faith or malice in this context ordinarily contains a requirement of actual intent to cause injury.
3
In
Grad v. Kaasa,
A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another, [citation omitted] “An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.” [quoting Givens v. Sellars,273 N.C. 44 ,159 S.E.2d 530 , 535 (1968).]
In Catalina v. Crawford, supra, the court defined bad faith as follows:
[B]ad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.
Id.,
IV.
Notwithstanding the apparent requirement that a wrongful intent be pleaded, it is arguable that a further inquiry is necessary to determine whether the factual allegations of the pleadings give rise to an inference of bad faith. In
Sanders v. Daniel International Corp.,
It is useful at this juncture to compare two cases involving a similar exercise of administrative discretion. In
Neal v. Donahue,
In a contrasting case, plaintiffs, inmates in a women’s penal institution, were injured in an attack by a fellow inmate in retaliation for complaints lodged with the defendant assistant warden.
Gray v. Linahan, supra.
Plaintiffs alleged that they voiced their fear of reprisals to defendant during the same conference in which the complaints were aired, although neither repeated such concern following defendant’s promise to have the attacker removed from their environment within 20 minutes. Nevertheless, as the offender was being allowed unguarded leave to gather her belongings, she removed a metal closet hanger bar — which, like all the other closet bars, was unsecured — and assaulted the plaintiffs. In affirming summary judgment for defendant, the court concluded that there was no evidence that defendant knew of any prior incidence of violence by the assaulting inmate, that defendant indisputably sought to avoid a disturbance by directing the inmate to be removed promptly, and that all of the evidence indicated that defendant operated under a good faith belief that the closet bars were not likely to be used as weapons. Accordingly, there was no basis for a finding that defendant acted “in a spirit of willfulness, malice, or corruption, or in total disregard for the plaintiffs’ safety.”
Id.,
Of the two cases described, the facts of the present case are more closely analogous to those of Gray and compel the result reached there. The most egregious interpretation of plaintiffs’ allegations in Count I is that relator allowed decedent to break through the window bars and jump from the window to his death. 5 However, there is no assertion by plaintiffs that relator knew of a prior history of attempts by decedent to commit suicide by an act as violent as jumping from a window, an extremely unlikely act even for one with a history of “self-destructive behavior.” *449 There is also no allegation that relator disobeyed specific directives to take special precautions to prevent such an attempt. Nor is there any allegation of a condition of the window bars which obviously and effectively rendered them useless as a means of preventing an attempted suicide. Furthermore, there is no allegation that relator, having become aware of the total failure of the window barriers to afford restraint, failed to either institute or maintain supervision calculated to prevent decedent from taking his own life. In light of such deficiencies, a trier of fact could not reasonably conclude that relator acted in bad faith or with malice.
V.
The remaining two counts also clearly fail to state facts from which it could reasonably be inferred that relator acted in bad faith or from some improper motive. There are no allegations in the second count of any actual knowledge on the part of relator of a danger posed by an employee or policy. Nor is there an allegation in the third count that relator had actual, contemporaneous knowledge of decedent’s medical condition during the period following his injury.
Since relator is immune as a matter of law from an action based on the facts pleaded in the present case, the preliminary rule in prohibition is made absolute.
Notes
. Plaintiffs contend that the breach of relator’s statutory duty is alleged by the language in their petition which states that relator
failed to protect decedent by following such standards of monitoring facility maintenance and housekeeping services in such a way as to result in capital improvements necessary for patient safety.
However, this language is not sufficient to plead either a duty to report or its breach.
. With respect to official immunity for negligent performance of discretionary duties, see discussion, infra.
. The objective standard found in numerous federal cases, which provides a breach in the summary bar of official immunity where it appears that the official’s actions violated “clearly established statutory or constitutional rights of which a reasonable person would have known,”
Harlow v. Fitzgerald,
. The result obtained in
Neal
is of questionable validity in Missouri, in light of this Court's holding in
Sherrill v. Wilson,
. An alternative interpretation is that relator, by not reporting the condition of the window bars when discretion permitted, failed to obtain a needed capital improvement, which would have prevented decedent from jumping.