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Doe v. Hughes

Court of Appeals of Missouri, Western District, Third Division

December 20, 2016



          Before Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge.


         Jane Doe ("Doe") filed suit against Alberta Hughes ("Hughes") claiming negligence resulting in injury to Doe. A jury found in favor of Doe and determined the compensatory damages to be $3, 000, 000.00, with thirty percent of fault apportioned to Doe's grandmother (her legal guardian). The jury further imposed $6, 000, 000.00 in punitive damages against Hughes. The trial court entered judgment accordingly. Hughes appeals the denial of her motion for a directed verdict and motion for judgment notwithstanding the verdict, or alternatively, her motion for new trial and remittitur. Finding no error, the judgment of the trial court is affirmed.

         Factual and Procedural Background

         This appeal arises from a suit for negligence filed on behalf of Jane Doe against the appellant Alberta Hughes. Hughes was an employee of Progressive Community Services ("PCS"). PCS is a public entity organized under sections 205.968-73[1] and funded by a tax levy that was approved by Buchanan County voters in 1978. PCS provides services to developmentally disabled residents of Buchanan County, Missouri.

         Doe is a developmentally disabled woman, 35 years old at time of trial, with a condition known as Rett's Syndrome, an uncommon progressive genetic neurological disease. She possesses the mental capacity of a two or three year old and suffers from autism, seizures, limited speech capability, and motor discoordination. She lives with her maternal grandmother who is also her legal guardian. Doe began receiving services from PCS in October of 2008, with Hughes acting as her Community Networker. As a Community Networker, Hughes served as Doe's mentor, teacher, peer, and advocate and was responsible for her health, safety, and welfare. Hughes' duties included getting Doe out into the community, which she did by taking her to the local YMCA, the park, and various restaurants, in addition to teaching Doe life skills such as laundry and simple cooking.

         Hughes' responsibilities relating to Doe were defined by both general PCS policies as well as a detailed individual care plan developed specially for Doe. Pursuant to PCS policies and the individual care plan, Hughes was required to always be within arm's reach of Doe, was required to be able to reach Doe within ten seconds, was not permitted to take Doe to her home or to provide care for her there, was not to allow third parties to transport Doe, and was required to prepare and submit to PCS observation notes recording the activities she performed with Doe. During the time Hughes served as Doe's caregiver, she knowingly violated many of the requirements. Hughes frequently took Doe to her home and provided care for her there, purposely falsified the records of these incidents to hide the fact that she was providing services from her home, and, on multiple occasions, permitted her husband Tony Hughes ("Husband") to transport Doe. In addition, Hughes discovered, after working with Doe for some time, that Husband was Doe's uncle, which she hid from PCS due to a belief that she would be terminated if PCS became aware of the family relationship.

         Of these many indiscretions, the decision to allow Husband to transport Doe proved the most disastrous. Husband had been previously convicted for stealing, tampering with a motor vehicle, and armed robbery, all facts Hughes knew. Hughes also knew that Husband had previously used drugs and admitted that she had feared that his drug use would return. In addition, she had concerns regarding Husband's marital fidelity and sexual predilections. Hughes was even aware that in the past Doe, who could hardly communicate verbally, had grabbed at Husband's penis in a manner that the Husband later told police he did not believe was innocent. However, despite knowledge of Husband's significant and troublesome problems, Hughes willingly violated policy and permitted Husband to transport Doe on multiple occasions, thereby providing the opportunity for Husband to sexually assault her.

         In late April of 2013, Doe was taken by her grandmother to see her primary physician Dr. Allen Brewer after she failed to menstruate over a five-month period. Dr. Brewer determined that Doe was pregnant and arranged for an ultrasound and gynecological consultation. The following July, Doe gave birth to a baby girl via caesarian section. Husband was later determined to be the child's biological father. Husband confessed to having sexual intercourse with Doe while transporting her from Hughes' residence to her grandmother's house and subsequently pleaded guilty to the class C felony of sexual assault for which he was sentenced to seven years in prison.

         In November of 2013, Doe and her baby, both through Doe's grandmother as next friend, as well as her grandmother individually, filed suit against PCS, PCS's executive director Lynn Wells, PCS service coordinator Terri Zeamer, PCS nurse Karla Halter, Hughes, and Husband. All claims brought by Grandmother and Doe's baby were later voluntarily dismissed, as were Doe's claims against Husband. In addition, the trial court dismissed Doe's claims against Nurse Halter for failure to file an affidavit of merit and granted PCS, director Wells, and coordinator Zeamer summary judgment on the basis of sovereign and official immunity. The suit proceeded against Hughes alone and resulted in a four day jury trial bifurcated into a liability and actual damages phase followed by a punitive damages phase. At the close of the evidence, Hughes moved for a directed verdict, which the trial court denied. The jury found in favor of Doe and awarded $3, 000, 000.00 in compensatory damages, finding Hughes seventy percent at fault and apportioning the other thirty percent of fault to Doe's grandmother. The jury then awarded $6, 000, 000.00 in punitive damages against Hughes. Hughes moved for a judgment notwithstanding the verdict, or in the alternative a new trial or remittitur, which was denied by the trial court. Hughes timely appealed.


         Hughes raises eight points on appeal, which can be broadly grouped into five categories. We will discuss the points raised on appeal in the order most conducive to review.

         I. Official Immunity

         In her first point raised on appeal, Hughes argues that the trial court erred in overruling her motion for a directed verdict and motion for judgment notwithstanding the verdict claiming she was protected from liability under the doctrine of official immunity.

         "Whether immunity applies is an issue of law to the extent that there is no essential dispute as to the operative facts." Richardson v. Sherwood, 337 S.W.3d 58, 63 (Mo. App. W.D. 2011). Such questions of law are reviewed de novo. Malam v. State, Department of Corrections, 492 S.W.3d 926, 928 (Mo. banc 2016). Official immunity is an affirmative defense, and as such, Hughes bears the "the burden of pleading and proving that [she is] entitled to that defense." Nguyen v. Grain Valley R-5 School Dist., 353 S.W.3d 725, 730 (Mo. App. W.D. 2011).

         "Official immunity protects public officials from liability for alleged acts of ordinary negligence committed during the course of their official duties for the performance of discretionary acts." Woods v. Ware, 471 S.W.3d 385, 391 (Mo. App. W.D. 2015) (quoting Davis v. Lambert- St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006)). The judicially created doctrine "is intended to provide protection for individual government actors who, despite limited resources and imperfect information, must exercise judgment in the performance of their duties." Id. (quoting Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. banc 2008). Its purpose is to "permit public employees to make judgments affecting public safety and welfare without concerns about possible personal liability." Id. (quoting Southers, 263 S.W.3d at 611).

         Whether official immunity applies turns on whether the public official was engaged in discretionary or ministerial acts. Southers, 263 S.W.3d at 610. "Whether an act is discretionary or ministerial depends on the degree of reason and judgment required to perform the act." Davis, 193 S.W.3d at 763 (Mo. banc 2006) (internal quotation omitted). An act is considered discretionary if it requires "the exercise of reason in the adaption of means to an end, and discretion in determining how or whether an act should be done or a course pursued." Id. (quoting Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. banc 1984)). An act is considered ministerial when it is "of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed." Id. (quoting Rustici, 673 S.W.2d at 769). "To be liable for official acts, a public employee must violate either a departmentally-mandated duty or a duty imposed by statute or regulation." Woods, 471 S.W.3d at 392 (citing Nguyen, 353 S.W.3d at 730). "[A] 'departmentally-mandated duty' may clearly arise from sources other than statutes or regulations. Such a duty can arise from departmental rules, the orders of a superior, or the nature of the position for which the defendant was employed." Id. at 392-93 (quoting Nguyen, 353 S.W.3d at 730). "The determination of whether an act is discretionary or ministerial is made on a case-by-case basis, considering: (1) the nature of the public employee's duties; (2) the extent to which the act involves policymaking or exercise of professional judgment; and (3) the consequences of not applying official immunity." Id. at 393 (quoting Southers, 263 S.W.3d at 610).

         In the present case, no party argues that Hughes was not a public employee capable of receiving official immunity. The only real contention is whether Hughes' actions were discretionary or ministerial in nature. Doe contends that Hughes' duties were laid out in Doe's individual care plan and PCS policies. In particular, she points to the requirement in the individual care plan that Hughes be within arm's reach of Doe at all times and able to reach her within ten seconds, as well as, PCS policies preventing Hughes from administering services in her own home or allowing third parties to ...

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