Norton v. Smith

782 S.W.2d 775, 1989 Mo. App. LEXIS 1734, 1989 WL 147004
CourtMissouri Court of Appeals
DecidedDecember 5, 1989
DocketNo. 56421
StatusPublished
Cited by10 cases

This text of 782 S.W.2d 775 (Norton v. Smith) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norton v. Smith, 782 S.W.2d 775, 1989 Mo. App. LEXIS 1734, 1989 WL 147004 (Mo. Ct. App. 1989).

Opinion

HAMILTON, Presiding Judge.

Appellants, Gerald Norton (hereinafter Norton), a police officer in Cincinnati, Ohio, and his spouse, Janet Norton, appeal from a summary judgment entered in favor of [776]*776Respondent, Leland Smith (hereinafter Smith), a probation and parole officer employed by the State of Missouri in the City of St. Louis. Norton and his wife had filed a personal injury action against Smith after Norton was shot while on duty on April 15, 1987, in Cincinnati by Melvin Moreland (hereinafter Moreland). At the time of the shooting, Smith was Moreland’s parole officer. Smith moved for summary judgment, which the trial court sustained. We affirm.

On July 8, 1986, Smith began supervision of Moreland who was on parole to the Board of Probation and Parole of the Department of Corrections and Human Resources of Missouri (hereinafter Board) for the offenses of unlawful use of a weapon and resisting arrest. Included among the conditions of Moreland’s parole were requirements that he (1) report for regular meetings with his parole officer; (2) notify his parole officer of any change of residency within forty-eight hours; (3) obtain permission of his parole officer before leaving the state or area in which he was living; (4) maintain employment unless engaged in a specific program approved by his parole officer. Although the Board established the conditions of parole, the supervising parole officer determined the frequency of meetings with the parolee. Smith required Moreland to report to him monthly.

On March 17, 1987, Moreland failed to appear at his scheduled appointment with Smith. On April 6, 1987, Smith telephoned Moreland’s residence and spoke to his mother. She informed him that Moreland continued to reside with her only periodically and that he was no longer employed. Because she gaye no indication, however, that Moreland had left the St. Louis area, Smith believed Moreland to be in the vicinity of St. Louis. Smith’s clients not infrequently stayed with parents during a part of the week, spending the remaining time with others.

On April 15, 1987, in Cincinnati, Ohio, Cincinnati police officers Gerald Norton and Clifford George, while on duty, responded to a police dispatch. In so doing, they encountered Moreland and attempted to arrest him. During the attempted arrest, Moreland fatally shot Officer George and wounded Officer Norton. Prior to the police officers’ arrival at the scene of the shooting, the Cincinnati police had checked Moreland’s name in the police computers but found no record of a probation or parole violation for Moreland.

Thereafter, Norton and his spouse filed their petition, which they later amended. In Count I of the Second Amended Petition, Norton sought damages for injuries allegedly caused when Smith negligently failed to fulfill his non-discretionary/ministerial duties. It averred that Smith owed a duty to Officer Norton to report any and all probation and parole violations of Moreland and to issue an arrest warrant for him. Specifically, Count I alleged that Smith negligently failed (1) to report Moreland’s failure to appear for scheduled parole meetings prior to April 15, 1987; (2) to report that Moreland left Missouri prior to April 15, 1987; (3) to take proper steps to secure Moreland’s return to Missouri prior to April 15, 1987; and (4) to notify local police in Cincinnati that Moreland had relatives in the Cincinnati area. In Count II, Norton’s spouse sought damages for loss of consortium caused by the negligent acts specified in Count I.

Following Smith’s answer to the Second Amended Petition, the parties proceeded with discovery, taking the deposition of Smith during which portions of the Missouri Board of Probation and Parole Policy Manual (hereinafter Policy Manual) were identified and marked as an exhibit. Smith then filed a motion for summary judgment, which the trial court sustained. This appeal ensued.

On appeal, the Nortons contend the trial court erred in entering summary judgment because Smith had a ministerial duty to take steps to secure the return of More-land. Initially, we note that summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits, if any, demonstrate no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 74.-[777]*77704(c). While, in reviewing a summary judgment, we must scrutinize the record in the light most favorable to the party against whom it was entered, we must also sustain a summary judgment if it is sustainable on any theory. Alfano v. AAIM Management Ass’n, 770 S.W.2d 743, 745 (Mo.App.1989).

To be liable in tort for his or her official acts, a public official or employee must breach a ministerial duty imposed by statute or by regulation. The public duty doctrine recognizes that public officers normally owe a duty only to the general public, not to individuals. Thus, breach of a duty owed by a public official only to the general public will support no cause of action brought by an individual who is injured thereby. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 445 (Mo. banc 1986). A public official, however, is liable to an individual for his failure to perform a ministerial duty imposed on him by statute when that statute creates a duty to the individual. Id. At a minimum, the would-be plaintiff must be a member of a class for whose benefit the statute was enacted. Sherrill v. Wilson, 653 S.W.2d 661, 669 (Mo. banc 1983). Moreover, courts are reluctant to find an implied right to a civil action in a statute that fails expressly to refer to civil liability. Id. Liability attaches, therefore, when the law imposes upon the public officer the performance of ministerial duties in which a private individual has a special, direct, and distinctive interest and the breach of such duties cause injury. State ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 538 (Mo. banc 1988). The rationale behind the public duty doctrine is thus twofold: to protect modestly compensated public employees against multifarious claims and to allow them to perform the task at hand without suffering inappropriate distractions. Green v. Denison, 738 S.W.2d 861, 866 (Mo. banc 1987).

Like the public duty doctrine, the official immunity doctrine may shield from tort liability public officers acting within the scope of their authority. That doctrine exempts such public officers from liability for injuries arising from their discretionary acts or omissions, but imposes liability for torts committed when they act in a ministerial capacity. Barthelette, 756 S.W.2d at 537. Society’s compelling interest in the vigorous and effective administration of the public’s affairs underlies the doctrine of official immunity. Id. at 538.

In the instant case, Section 217.-720.1 governs the reporting of parole violations and the issuance of a warrant for the arrest of a parole violator. That section provides that

[a]t any time during release on parole or conditional release the board may issue a warrant for the arrest of a released inmate for violation of any of the conditions of parole or conditional release....

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Bluebook (online)
782 S.W.2d 775, 1989 Mo. App. LEXIS 1734, 1989 WL 147004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norton-v-smith-moctapp-1989.