Court of Appeals of Missouri, Western District, Third Division
JANE DOE, BY AND THROUGH HER NEXT FRIEND, JANE DOE GMA, Respondent,
ALBERTA HUGHES, Appellant.
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, MISSOURI THE
HONORABLE RANDALL R. JACKSON, JUDGE
Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge
and Edward R. Ardini, Jr., Judge.
R. ARDINI, JR., JUDGE.
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.
and Procedural Background
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 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,
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.
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.
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
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.
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.
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.
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
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).
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).
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).
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 ...