Court of Appeals of Missouri, Southern District, First Division
JOHN DOE, a minor, by and through his Natural Mother, MOTHER DOE, Plaintiff-Appellant,
OZARK CHRISTIAN COLLEGE, Defendant-Respondent.
FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Dean G.
Burrell, P.J., Rahmeyer and Lynch, J.J.
Doe ("Plaintiff") filed a negligence action against
Ozark Christian College ("OCC") claiming that OCC
negligently recommended a prospective employee
("Employee") to the employer church
("Employer"), as a direct result of which, two
years after he was hired, Employee injured
Plaintiff. The trial court entered summary judgment
in favor of OCC, concluding that Missouri has not defined or
recognized a "duty to not make a negligent
recommendation to a prospective employer." Because
Plaintiff has failed to demonstrate the existence of such a
duty, we affirm the trial court's judgment.
judgment is designed to permit the trial court to enter
judgment, without delay, where the moving party has
demonstrated, on the basis of facts as to which there is no
dispute, a right to judgment as a matter of law. Rule
74.04." ITT Commercial Fin. Corp. v. Mid-Am. Marine
Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
summary judgment movant has the burden to establish a right
to judgment as a matter of law "flowing from facts about
which there is no genuine dispute." Id. at 378.
When the party moving for summary judgment is a defending
party, as is the case here, the movant's right to summary
judgment can be established by showing one of the following:
(1) facts that negate any one of the claimant's
elements facts, (2) that the non-movant, after an adequate
period of discovery, has not been able to produce, and will
not be able to produce, evidence sufficient to allow the
trier of fact to find the existence of any one of
the claimant's elements, or (3) that there is no genuine
dispute as to the existence of each of the facts
necessary to support the movant's properly-pleaded
Id. at 381.
and Procedural Background
facts set out in the parties' statements of
uncontroverted material facts establish that OCC is an
independent college that prepares students for ministry and
that Employee was a student there from 1982 to 1989. On
occasion, individual churches that need to fill open
positions, such as and including Employer, contact OCC for
recommendations. However, the individual churches, and not
OCC, make the ultimate hiring decisions. OCC and Employer are
separate entities. In his second amended petition
("petition"), Plaintiff alleges that, based upon
OCC's positive recommendation, Employer hired Employee in
2004. Plaintiff further alleged that, as a result of that
employment, Employee sexually abused Plaintiff from 2006
filed a motion for summary judgment. In that motion, OCC
contended that assuming all factual allegations in
Plaintiff's petition are true, Plaintiff's negligence
claim nevertheless failed as a matter of law because, in
giving an employment recommendation to Employer, OCC owed no
duty to Plaintiff. The trial court agreed with OCC and
entered judgment in its favor, concluding that:
The first question is what duty was owed by OCC to
[Employer]? Is there a duty to not make a negligent
recommendation to a prospective employer, whether it come[s]
from another employer or an education institution? Plaintiff
admits that [he] cannot find a Missouri case that holds such
a duty exists. There are other states that have reached that
conclusion, California, New Mexico and Texas, but the
Missouri legislature has not defined such a cause of action
and the Missouri Courts have not recognized one. This court
declines to create such a cause of action now.
timely appeals the trial court's judgment.
Existing Common Law Duty Identified by Plaintiff
any action for negligence, a plaintiff must establish the
defendant owed a duty of care to the plaintiff, the defendant
breached that duty, and the defendant's breach
proximately caused the plaintiff's injury."
Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d
845, 848 (Mo. banc 2018).
a duty exists is purely a question of law.'"
Hoffman v. Union Elec. Co., 176 S.W.3d 706, 708 (Mo.
banc 2005) (quoting Lopez v. Three Rivers Elec. Coop.,
Inc., 26 S.W.3d 151, 155 (Mo. banc 2000)). "A duty
to exercise care can be imposed by a controlling statute or
ordinance, assumed by contract, or imposed by common law
under the circumstances of a given case." Bowan ex
rel. Bowan v. Express Med. Transporters, Inc., 135
S.W.3d 452, 457 (Mo.App. 2004) (citing Scheibel v.
Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976)). Plaintiff
proffers no statutory, ordinal, or contractual basis bearing
upon the facts here supporting the existence of a duty upon
OCC toward Plaintiff in making its employment recommendation
of Employee to Employer.
conceding that OCC had no duty to provide an employment
recommendation in the first instance, Plaintiff claims that
[c]onsistent with existing Missouri law and cases from other
states, Missouri should recognize that once a
defendant undertakes to provide a recommendation to a
perspective [sic] employer, the defendant has a duty to
provide a non-negligent recommendation if the defendant knows
or has reason to know that a negligent recommendation
involves an unreasonable risk of injury to the perspective
[sic] employer or third-parties.
(Emphasis added). More precisely, Plaintiff claims that
Missouri's common law has always imposed this duty upon
anyone who makes an employment recommendation and that all
that remains is for this court to simply
"recognize" that existing duty.
resolving this claim, we initially note that the Missouri
Court of Appeals is an error-correcting court, whereas the
Supreme Court of Missouri is a law-declaring court. State
v. Freeman, 269 S.W.3d 422, 429 (Mo banc 2008) (Wolff,
J, concurring). Accordingly, if a trial court erroneously
fails to apply an existing common-law duty, it is within the
purview of our court to correct that error. The declaration
of a new common-law duty, however, is not within our purview
but, rather, lies squarely within the law-declaring function
of our supreme court. See id. at 429-30.
argument implicitly concedes that no Missouri case has
addressed or recognized a common-law duty of care upon a
person or entity to either a prospective employer or a third
party in making an employment recommendation. Rather, in the
absence of such authority, Plaintiff offers four reasons as
to why that common-law duty exists in Missouri's common
law waiting only for recognition:
• OCC assumed the duty and "[s]uch duty is
reflected in the language of section 324A of the Restatement
(Second) of Torts."
• Section 311 of the Restatement (Second) of Torts
imposes a duty and liability on OCC under the facts of this
case for negligent misrepresentation involving risk of
• Other states have recognized a duty in their common
law to not provide a negligent recommendation.
• Public policy factors "support imposition of a
duty on OCC not to provide an inaccurate and incomplete
recommendation in this case."
these reasons support the existence of a duty, but rather
contemplate the declaration of a new common-law duty. Such a
declaration is not within our power.
324A of the Restatement (Second) of Torts ("section
concedes that "[OCC] did not have any duty to provide
[Employee's] name to [Employer] or to provide a
recommendation regarding [Employee] when asked by
[Employer]." Rather, Plaintiff asserts that OCC's
gratuitous provision of an employment recommendation to