Desiree Ridgell v. Mark McDermott and Karen McDermott, Defendants/Respondents.

• Court: Missouri Court of Appeals
• Decided: April 15, 2014
• Docket: ED100402
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE

DESIREE RIDGELL, ) No. ED100402 ) Plaintiff/Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) MARK MCDERMOTT and KAREN ) Honorable Colleen Dolan MCDERMOTT, ) ) Defendants/Respondents. ) Filed: April 15, 2014

I. INTRODUCTION

Desiree Ridgell (“Plaintiff”) appeals the judgment of the Circuit Court of St.

Louis County granting Defendants Mark and Karen McDermott’s motion to dismiss

Counts II and III of Plaintiff’s petition for failure to state a claim upon which relief could

be granted. In her sole point on appeal, Plaintiff argues that the trial court erred in

dismissing Counts II and III of her petition as she pleaded ultimate facts of each legal

element of a cause of action against Mark and Karen McDermott for negligent failure to

supervise and control their minor son. We reverse the trial court’s judgment dismissing

Counts II and III and remand the cause for further proceedings consistent with this

opinion. II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed a petition for damages against Mark and Karen McDermott

(“parents”) and their minor son, Connor. Count I of the petition alleged a personal injury

claim against Conner McDermott. Under Counts II and III, Plaintiff alleged that parents

negligently failed to supervise and control their son. The petition can be summarized as

follows:

Plaintiff was employed by the Special School District of St. Louis County as a

teacher’s assistant at Southview School. Conner McDermott (“son”) was a student in her

classroom. On April 26, 2011, son wrestled Plaintiff to the floor and held her down. Co-

workers came to Plaintiff’s rescue and attempted to restrain son. As Plaintiff tried to get

up off the floor, son kicked her in the head, causing her to fall backward and strike the

back of her head on a desk.

Plaintiff alleges that prior to son’s attack on April 26, 2011, parents were aware of

similar violent acts committed by son at school upon Plaintiff and others. Plaintiff claims

that on multiple occasions son punched, grabbed, tackled, kicked, and attempted to grab,

tackle, and kick her. Plaintiff additionally contends that son acted as follows: kicked a

school employee in the knee requiring treatment, surgery, and time off work; threw a

scissors at a school employee, lacerating her neck and requiring stitches; kicked, hit, bit,

grabbed, pulled hair, wrestled, and pinned employees to the floor; grabbed, pulled hair

and attempted to pull students to the floor, causing the students to fear physical harm;

physically injured school employees; and threatened Plaintiff and others with physical

harm.

2 The petition maintains that parents failed to take the following preventative

measures to control son: obtain, administer or permit others to administer medication to

son that would have prevented or modified his violent behavior; obtain counseling,

behavior modification training, or medical care − psychiatric, psychological or otherwise

− that would have prevented son’s violent acts; seek evaluation and treatment for son by

admitting him to a hospital; heed the advice or recommendations of the school that would

have prevented or minimized son’s propensity to attack; and discipline son or temporarily

remove him from school until he ceased committing violent acts.

Plaintiff claims that she has sustained numerous physical injuries as a direct and

proximate result of son’s April 26, 2011 attack. These injuries include, but are not

limited to: post-concussion syndrome, migraines, concussion, concentration and memory

disturbances, cognitive and memory deficits, and depression. Plaintiff also alleges that

she has incurred significant medical expenses treating her injuries and will incur further

expenses in the future for medical treatment.

Moreover, Plaintiff maintains that the son’s conduct has caused her permanent

restriction from working professionally with children as a teacher or teacher’s assistant.

She asserts that she has lost wages and will lose wages in the future. Plaintiff requests

compensatory damages from parents for her past, present, and future medical expenses

and lost wages. 1

The trial court dismissed Counts II and III of the petition with prejudice, and

stated that, pursuant to Rule 74.01(b), there was no just reason for delay and entered

judgment. Plaintiff now appeals.

1 Plaintiff also seeks compensatory and punitive damages from son under Count I.

3 III. STANDARD OF REVIEW

A motion to dismiss for failure to state a cause of action attacks the adequacy of

the plaintiff's pleadings. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 463

(Mo. banc 2001). It assumes that all of the pleaded facts are true and liberally grants to

the plaintiff all reasonable inferences therefrom. Hess v. Chase Manhattan Bank, USA,

N.A., 220 S.W.3d 758, 768 (Mo. banc 2007) (internal citations omitted). “‘[T]he petition

is reviewed in an almost academic manner, to determine if the facts alleged meet the

elements of a recognized cause of action, or of a cause that might be adopted in [the]

case.’” Bosch, 41 S.W.3d at 464. (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303,

306 (Mo. banc 1993)). The dismissal of a petition for failure to state a cause of action is

reviewed de novo. Hess, 220 S.W.3d at 768.

IV. DISCUSSION

In her sole point on appeal, Plaintiff argues that the trial court erred in dismissing

Counts II and III of her petition alleging negligence against parents. Specifically,

Plaintiff contends that dismissal of these Counts was improper as she pleaded ultimate

facts of each legal element of a cause of action for negligent failure to supervise and

control a minor child. We agree.

To successfully assert a claim for negligent supervision, a plaintiff must plead the

following: (1) a legal duty on the part of the defendant to use ordinary care to protect the

plaintiff against unreasonable risks of harm; (2) a breach of that duty; (3) a proximate

cause between the breach and the resulting injury; and (4) actual damages to the

plaintiff's person or property. Davis v. Lutheran S. High School Ass'n of St. Louis, 200

4 S.W.3d 163, 165-66 (Mo. App. E.D. 2006) (citing Hoover's Dairy, Inc. v. Mid–Am.

Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985)).

The duty to supervise is narrow, requiring the existence of a relationship between

the plaintiff and defendant that the law recognizes as the basis of a duty of care.

Hockensmith v. Brown, 929 S.W.2d 840, 847 (Mo. App. W.D. 1996). “Acceptance of the

custody and control of a minor child creates a relationship sufficient to support a duty of

care.” A.R.H. v. W.H.S., 876 S.W.2d 687, 691 (Mo. App. E.D. 1994). However, it is

well-settled in Missouri that, unless altered by statute, parents are not liable in damages

for the torts of their minor children merely because of their status as parents. Stonger ex

rel. Stonger v. Riggs, 21 S.W.3d 18, 21 (Mo. App. W.D. 2000). Nevertheless, an

exception to this rule of liability exists where “parents have knowledge of their child's

dangerous propensities, but nonetheless fail to act reasonably in attempting to restrain the

child from injuring another.” Id. (citing Nat’l Dairy Prod. Corp. v. Freschi, 393 S.W.2d

48, 54 (Mo. App. E.D. 1965)). 2

Parents contend that this exception is inapplicable because the school had

supervision and control over their son at the time of the incident, whereas they were not

present and lacked control. In their motion to dismiss, parents maintained that Plaintiff

2 Missouri law holds parents liable for the torts of their minor child in four additional circumstances in addition to the exception noted above. Nat’l Dairy, 393 S.W.2d at 54. However, in Plaintiff’s petition and on appeal, she limits her argument that liability should be imposed on parents to the fourth exception − failure to restrain the child from vicious conduct where parent knows of the child’s propensity for similar acts. We need not reach these additional bases of liability as we find the pleadings are sufficient to state a cause of action under the fourth exception.

5 did not plead sufficient facts supporting the allegation that they owed Plaintiff a duty with

respect to their son, or that breach of that duty caused Plaintiff’s damages. 3

We disagree with parents’ contention that sufficient facts were not pleaded to

support Counts II and III of the petition. Under Missouri law, parents have a duty to

exercise ordinary care in their supervision of son. To impose liability for son’s tortious

acts under the exception relied on by Plaintiff, parents must have had knowledge of their

son’s dangerous propensities. See Nat’l Dairy, 393 S.W.2d at 54; Stonger, 21 S.W.3d at

21.

Here, Plaintiff has offered sufficient allegations of prior violent attacks by son on

Plaintiff, school employees and students to enable parents to recognize a potentially

dangerous condition. Plaintiff claims that on multiple occasions previous to April 26,

2011, son punched, grabbed, tackled, kicked, and attempted to grab, tackle, and kick her.

Plaintiff additionally contends that son acted as follows: kicked a school employee in the

knee requiring treatment, surgery, and time off work; threw a scissors at a school

employee, lacerating her neck and requiring stitches; kicked, hit, bit, grabbed, pulled hair,

wrestled, and pinned employees to the floor; grabbed, pulled hair and attempted to pull

students to the floor, causing the students to fear physical harm; physically injured school

employees; and threatened Plaintiff and others with physical harm.

3 In its order, the trial court did not specify its reasons for dismissing Counts II and III. When the trial court fails to state the grounds for dismissal, this court presumes that the “dismissal was based upon the grounds raised in defendant's motion to dismiss and will affirm if any such grounds can sustain the trial court's dismissal.” Vestin Realty Mortg. I, Inc. v. Pickwick Partners, L.L.C., 279 S.W.3d 536, 538 (Mo. App. W.D. 2009).

6 Because the petition supports an inference that parents could reasonably foresee

that an injury like Plaintiff’s might occur, our analysis turns to whether the petition

contained adequate allegations of conduct constituting breach. See Hockensmith, 929

S.W.2d at 847. In Missouri, liability may be imposed when parents “fail to act

reasonably in attempting to restrain the child from injuring another.” Stonger, 21 S.W.3d

at 21. Although Missouri courts have not yet defined the scope of a parent’s duty to

supervise and restrain in the context of a school setting, it may well be that there are

reasonable acts of “restraint” that do not involve physical control, but still fall within the

area of a parent’s supervision. 4

To establish the element of breach, Plaintiff alleges numerous examples of

parents’ failure to take preventative steps to control son’s violent propensities. The

petition maintains that parents failed to do the following: obtain, administer or permit

others to administer medication to son that would have prevented or modified his violent

behavior; obtain counseling, behavior modification training, or medical care −

psychiatric, psychological or otherwise − that would have prevented son’s violent acts;

seek evaluation and treatment for son by admitting him to a hospital; heed the advice or

recommendations of the school that would have prevented or minimized son’s propensity

to attack; and discipline son or temporarily remove him from school until he ceased

4 Nevertheless, we do acknowledge that a school setting is different as the school and its teachers have a duty themselves to supervise the students under their custody and control. See Davis v. Lutheran S. High School Ass’n of St. Louis, 200 S.W.3d 163, 165 (Mo. App. E.D. 2006). Depending on the specific facts and circumstances of the claim, the school’s acceptance of custody and control of the student may impact a determination of the scope of the parents’ duty or the conduct that constitutes breach. Here, we are limited to the bare allegations of the petition, which prevent us from making such a determination.

7 committing violent acts. While we cannot say whether any of these allegations will

prevail on the merits, they are adequate to survive a motion to dismiss.

Therefore, although their son was not physically within their control at the time of

the incident, we find that Plaintiff has alleged facts that may be found to fall within the

area of parents’ “supervision” as breach of their duty to reasonably control and restrain

their son from injuring another.5 Thus, at this early stage, viewing the allegations

generously and all favorable inferences therefrom, we cannot say that Plaintiff’s petition

fails to state a claim upon which relief may be granted. See Y.G. v. Jewish Hosp. of St.

Louis, 795 S.W.2d 488, 494 (Mo. App. E.D. 1990) (“a petition is not to be dismissed for

failure to state a claim unless it appears that the plaintiffs can prove no set of facts in

support of their claim which would entitle them to relief”).

V. CONCLUSION

We hold that the petition pleads facts sufficient to state a cause of action for

negligent supervision. We reverse the judgment of the trial court dismissing Counts II

and III and remand the cause for further proceedings consistent with this opinion.

5 Other jurisdictions have addressed the scope of “restraint” in cases involving a parental duty to supervise and control a minor child in the context of a school setting. See Nieuwendorp v. Am. Family Ins. Co., 191 Wis.2d 462, 474-75 (Wis. 1995) (Parents’ unilateral decision to take son off medication did not constitute negligence, however, parents did fail to take reasonable steps to control child’s behavior resulting in injury to his teacher as they did not inform themselves of consequences of discontinuing child’s medication or about alternative forms of treatment, nor did they notify the school of their decision so that a joint plan to manage child’s behavior could be developed). Compare Johnson v. Cantie, 905 N.Y.S.2d 384, 385-86 (N.Y. App. Div. 2010) (Granting parents’ motion for summary judgment − as to injured school employee’s claim that parents negligently supervised daughter and failed to place her in a more restrictive school setting − based on evidence that: parents were not present when daughter injured employee, did not have the opportunity to control her behavior, and school accepted her placement with full knowledge of her needs and behavioral difficulties).

8 __________________________________ Angela T. Quigless, Judge

Mary K. Hoff, P.J., and Kurt S. Odenwald, J., Concurs.