State ex rel. Southers v. Stuckey

867 S.W.2d 579, 1993 Mo. App. LEXIS 1640, 1993 WL 429185
CourtMissouri Court of Appeals
DecidedOctober 26, 1993
DocketNo. WD 47810
StatusPublished

This text of 867 S.W.2d 579 (State ex rel. Southers v. Stuckey) 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
State ex rel. Southers v. Stuckey, 867 S.W.2d 579, 1993 Mo. App. LEXIS 1640, 1993 WL 429185 (Mo. Ct. App. 1993).

Opinion

BERREY, Presiding Judge.

In November 1992, Martha Jo and Ryland Utlaut filed a suit for damages in the Circuit Court of Lafayette County, Missouri. In their petition they allege relator, Frances Souther, negligently performed her duties as the administrator of the Waverly Youth Center, a residential youth facility operated by the Division of Youth Services (DYS) with the Missouri Department of Social services and thereby permitted a resident youth of the facility to escape. The youth then went to the Utlauts home in Waverly, assaulted Mrs. Utlaut and burned their house. The Utlauts state there were at least six other escapes, or “runaways,” from the center. The Utlauts also assert that under 13 C.S.R. 110-2.080 the relator breached her duty to immediately notify the local police upon discovery of a runaway. Ms. Southers is also alleged to have:

carelessly, negligently and deliberately failed to maintain adequate security at the facility and supervision of residents in numerous respects, including, but not limited to, the following: she did not provide for an adequate number of staff to supervise the residents of the facility; she did not provide adequate security measures to prevent the residents from leaving the building without authorization; she did not provide for adequate physical barriers preventing escape of residents, such as locks on doors, bars on windows and a perimeter fence of the area; she did not make adequate provision to ensure that the staff were trained in security procedures....

The plaintiffs characterize these duties as “mandatory, ministerial and non-discretionary,” and they ask the court to grant relief due to relator’s “negligent and reckless acts.”

In Count II of their petition, Ryland Ut-laut requests damages for the relator’s negligence resulting in the loss of the companionship and services of Martha Jo Utlaut. In Count III the plaintiffs request that they be compensated for the property damage to their real estate. Finally, in Count IV, the plaintiffs assert that Frances Southers was per se negligent by failing to immediately notify the police upon discovery of the escape, and she thereby “knowingly aided” the youth to escape, in violation of RSMo § 219.-061 (1975).

Before the relator filed a responsive pleading to the petition, the plaintiffs requested a change of judge. Thereafter, on December 18, 1992, the relator moved to dismiss the petition based on the protections of official immunity and the public duty doctrine.

Prior to a ruling on the motion to dismiss, the plaintiffs notified the relator they would depose the DYS Director on January 15, 1993. Relator refused to proceed with discovery until the court ruled on the motion to dismiss. On December 30, 1992 relator filed motions to stay discovery and to quash the deposition notice.

The relator notified the plaintiffs that she would call her motion to dismiss and the discovery motions for hearing on January 4, 1993. The circuit court granted the plaintiffs’ request for change of judge on December 30, 1992, but the Supreme Court did not appoint a new judge until February 8, 1993, when it transferred the Honorable Ward B. Stuckey, of the Sixth Judicial Circuit, Platte County, Missouri, to handle the case.

The plaintiffs then served interrogatories on the relator and notified her that they intended to take her deposition, as well as the deposition of the Director of DYS, on May 13, 1993. The relator then filed a motion to quash deposition motions and subpoe[581]*581na, and request for protective order. Relator also notified the plaintiffs that her motions to dismiss and the discovery motions would be called for hearing on April 29,1993.

On April 29, 1993, the parties appeared before Judge Stuckey in Platte County and arguments were heard on the motion to dismiss and the discovery motions. The court deferred ruling on relator’s motion to dismiss and ordered the parties to proceed with discovery. In the court’s docket entry it noted that the court overruled the defendant’s motion to stay discovery, motion to quash deposition notice, motion to quash deposition notices and subpoena, and defendant’s request for protective order.

The relator then notified Judge Stuckey and the plaintiffs that she intended to file a petition for a writ of prohibition with this court, and on May 6, 1993, the petition was filed. On May 18,1993, this court issued a preliminary rule in prohibition ordering the respondent to cease from exercising any further jurisdiction over the case.

In relator’s Points I and II, she alleges the trial court exceeded its jurisdiction or lacked jurisdiction in ordering the parties to proceed with discovery without deciding the relator’s immunity claims. Relator claims that because she is the administrator of a state youth facility, she is immune from liability based upon the official immunity doctrine and the public duty doctrine. She requests this court make the preliminary rule in prohibition permanent and absolute.

The official immunity doctrine provides that a public official is not civilly liable to members of the public for negligence arising out of the performance of discretionary duties. Green v. Denison, 738 S.W.2d 861 (Mo. banc 1987); Sherrill v. Wilson, 653 S.W.2d 661 (Mo. banc 1983); State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443 (Mo. banc 1986); Kanagawa v. State, 685 S.W.2d 831 (Mo. banc 1985).

The general 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, 685 S.W.2d at 835.

Missouri courts have applied official immunity to circumstances similar to those faced by the relator. In Kanagawa, the defendant prison official was charged with negligence in providing security measures at a state prison when a prisoner escaped, kidnapped, assaulted and raped the plaintiff. The official’s alleged conduct included: knowledge of the violent past of the escapee; improper training and supervision of personnel; failure to provide adequate physical safety barriers; and utilizing staff that could not prevent an escape. Id. In rejecting the assertion that these duties were ministerial in nature the Supreme Court stated:

These decisions necessarily involve the exercise of a substantial degree of judgment and require consideration of the manifold aspects of prison operation, the nature and physical design of the facility in question and the vagaries of state appropriations. We believe such decisions should be made free from the fear of civil litigation and liability.

Id. at 836-837. The Court held that the prison official was protected by official immunity.

Another case that supports a finding of immunity is Sherrill v. Wilson, 653 S.W.2d at 662. In Sherrill, one of the defendants was the superintendent of a state mental institution from which a patient failed to return after being given a two day pass. The patient killed plaintiffs son.

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Related

Kanagawa v. State by and Through Freeman
685 S.W.2d 831 (Supreme Court of Missouri, 1985)
Green v. Denison
738 S.W.2d 861 (Supreme Court of Missouri, 1987)
Sherrill v. Wilson
653 S.W.2d 661 (Supreme Court of Missouri, 1983)
Nelson Ex Rel. Wharton v. Freeman
537 F. Supp. 602 (W.D. Missouri, 1982)
Beaver v. Gosney
825 S.W.2d 870 (Missouri Court of Appeals, 1992)
State Ex Rel. Twiehaus v. Adolf
706 S.W.2d 443 (Supreme Court of Missouri, 1986)

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Bluebook (online)
867 S.W.2d 579, 1993 Mo. App. LEXIS 1640, 1993 WL 429185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-southers-v-stuckey-moctapp-1993.