Summary
finding a business did not assume a duty to keep the decedent safe from being hit by a drunk driver on a public road by its conduct of providing him with social services relating to ongoing housing and mental illness issues
Summary of this case from M.B. v. Live Nation Worldwide, Inc.Opinion
No. ED 108785
12-29-2020
Lynnetta SCALES, Appellant, v. Stacie WHITAKER, Defendant, and Places for People, Incorporated, Respondent.
FOR APPELLANT: James P. Krupp, Ryan Krupp, 12813 Flushing Meadows Dr., Ste. 150, St. Louis, MO 63131. FOR RESPONDENT: Stephen M. Strum, Zachary S. Merkle, Timothy C. Sansone, Lawrence S. Hall, 600 Washington Ave., 15 Floor, St. Louis, MO 63101. FOR DEFENDANT STACIE WHITAKER: Katherine M. Smith, 500 North Broadway, Ste. 1550, St. Louis, MO 63102.
FOR APPELLANT: James P. Krupp, Ryan Krupp, 12813 Flushing Meadows Dr., Ste. 150, St. Louis, MO 63131.
FOR RESPONDENT: Stephen M. Strum, Zachary S. Merkle, Timothy C. Sansone, Lawrence S. Hall, 600 Washington Ave., 15th Floor, St. Louis, MO 63101.
FOR DEFENDANT STACIE WHITAKER: Katherine M. Smith, 500 North Broadway, Ste. 1550, St. Louis, MO 63102.
ROBERT M. CLAYTON III, Judge
Lynnetta Scales ("Plaintiff") appeals the trial court's judgment dismissing her wrongful death claim against Places for People, Incorporated ("Defendant Places for People" or "Defendant") for failure to state a claim upon which relief can be granted. We affirm.
As explained below, Plaintiff filed wrongful death claims against underlying defendant Stacie Whitaker (Count I) and Defendant Places for People (Count II). The trial court subsequently entered a judgment dismissing Count II and Defendant Places for People with prejudice, certifying the judgment for appeal as to all claims against Defendant pursuant to Missouri Supreme Court Rule 74.01(b) (2020), and finding there was no just reason for delay of an appeal.
I. BACKGROUND
A. The Relevant, General Allegations in Plaintiff's Second Amended Petition
Because this appeal involves a grant of a motion to dismiss for failure to state a claim, it is important to initially set out the relevant, general allegations of Plaintiff's second amended petition. These allegations are as follows.
Plaintiff is the former spouse of Marco Scales ("Decedent"), who passed away on May 1, 2018. Defendant Places for People is a Missouri corporation providing programs, services, and resources for people living with mental illnesses and substance disorders, with its principal place of business located at 4130 Lindell Boulevard in the City of St. Louis. From 2013 through April 2018, Decedent was a customer and client of Defendant Places for People.
On April 13, 2018, at approximately 9:30 or 10:00 p.m. and during a heavy rain, Decedent was walking on Missouri Route D a/k/a Page Avenue in St. Louis County ("Page Avenue"), when he was struck by a vehicle operated by defendant Stacie Whitaker. Plaintiff's second amended petition alleges that, near the time of the accident, Whitaker: was driving at excessive speed in the rain; was in the process of passing a vehicle in front of her as she accelerated; failed to use her turn signal while passing the vehicle in front of her; failed to keep a careful lookout; and was driving her car while impaired and in an intoxicated condition. As a result of the accident, Decedent suffered severe injuries, damages, and later died on May 1.
Additionally, Plaintiff alleges that at the time of vehicle-pedestrian accident, Decedent was "without adequate supervision, guidance, direction or safety precautions, including adequate housing, provided to him by [D]efendant Places for People, and as a direct and proximate result of those breaches of duty [Decedent] was struck [by Whitaker's vehicle,] thereby causing him injuries, damages and eventually death[.]" Plaintiff also alleges, (1) "[D]efendant Places for People had an affirmative duty pursuant to [section] 632.300 [RSMo 2016 ] to have [Decedent] involuntarily committed to a mental health facility so that on April 13, 2018 [Decedent] would not have been walking in the rain in the dark and been struck and injured and killed by defendant Stacie Whitaker and her vehicle"; and (2) Defendant Places for People had a duty imposed by common law and assumed a duty to otherwise ensure Decedent's safety before and on the night of the April 13 accident.
Unless otherwise indicated, all further statutory references are to RSMo 2016.
Additional specific allegations in Plaintiff's second amended petition regarding the alleged duty Defendant Places for People owed to Decedent to involuntarily commit him or otherwise ensure his safety will be set out in relevant part below in Section II.B.1. of this opinion.
Finally, Plaintiff's second amended petition alleges that, as a direct and proximate result of the alleged negligence of Defendant Places for People, Plaintiff is entitled to recover compensatory and exemplary damages arising out of Decedent's injuries and death.
B. The Procedural Posture
After Decedent's death, Plaintiff filed an action asserting wrongful death claims against defendant Whitaker (Count I) and Defendant Places for People (Count II). Then, after Plaintiff filed her second amended petition, Defendant Places for People filed a motion to dismiss Count II for failure to state a claim upon which relief can be granted. Defendant's motion asserts Count II of Plaintiff's second amended petition should be dismissed because the factual allegations therein do not establish the elements of duty, breach, and proximate cause.
The trial court subsequently entered a judgment granting Defendant's motion to dismiss and dismissing Count II and Defendant Places for People with prejudice; however, the court did not specify the reasons for its dismissal. The trial court's judgment also certified the judgment for appeal as to all claims against Defendant pursuant to Missouri Supreme Court Rule 74.01(b) (2020), and found there was no just reason for delay of an appeal. Plaintiff now appeals.
II. DISCUSSION
Plaintiff raises three points on appeal, arguing the trial court erred in dismissing her wrongful death claim (Count II) against Defendant People for Places for failure to state a claim.
A. The Standard of Review, the General Law, and the Arguments in Plaintiff's Three Points on Appeal
Our review of a trial court's judgment granting a motion to dismiss is de novo. Aldridge v. Francis , 503 S.W.3d 314, 316 (Mo. App. E.D. 2016). When, as in this case, the trial court does not specify its reasons for dismissal, an appellate court presumes the court's dismissal was based on one of the reasons stated in the motion to dismiss. Tuttle v. Dobbs Tire & Auto Centers, Inc. , 590 S.W.3d 307, 310 (Mo. banc 2019).
A motion to dismiss for failure to state a claim upon which relief can be granted is only a test of the adequacy of the plaintiff's petition. Aldridge , 503 S.W.3d at 316. When reviewing a motion to dismiss on appeal, we accept as true the allegations in the plaintiff's petition and liberally grant her all reasonable inferences therefrom. Id. This Court does not attempt to weigh whether the factual allegations are credible or persuasive. Id. Instead, the petition is reviewed "in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Id. (quoting Nazeri v. Missouri Valley College , 860 S.W.2d 303, 306 (Mo. banc 1993) ). If a plaintiff's petition sets forth any set of facts that, if proven, would entitle her to relief, then the petition states a claim. Brewer v. Cosgrove , 498 S.W.3d 837, 843 (Mo. App. E.D. 2016).
In a negligence action based upon a theory of wrongful death, the plaintiff must adequately plead and establish, (1) the defendant owed the decedent a duty of care; (2) the defendant breached that duty; (3) the breach was the cause in fact and proximate cause of the decedent's death; and (4) as a result of the breach, the plaintiff suffered damages. Heffernan v. Reinhold , 73 S.W.3d 659, 664 (Mo. App. E.D. 2002) ; Robinson v. Missouri State Highway and Transp. Com'n , 24 S.W.3d 67, 74 (Mo. App. W.D. 2000). In this case, Plaintiff raises three points on appeal, arguing, respectively, that the trial court erred in dismissing her wrongful death claim against Defendant People for Places for failure to state a claim because Plaintiff's second amended petition adequately pleaded the elements of, (1) duty; (2) breach; and (3) proximate cause. For the reasons discussed below, we find Plaintiff's first point on appeal arguing her petition adequately pleaded the element of duty has no merit under the circumstances of this case; therefore, our discussion of Plaintiff's first point is dispositive of this appeal. See id.
B. Plaintiff's First Point on Appeal
In Plaintiff's first point on appeal, she argues her second amended petition adequately pleaded Defendant Places for People owed Decedent a duty of care to involuntarily commit him or otherwise keep him safe before and on the night of the April 13, 2018 accident in which Decedent was walking on Page Avenue and was struck by a vehicle operated by defendant Stacie Whitaker.
1. The Relevant, Specific Allegations in Plaintiff's Second Amended Petition Regarding the Alleged Duty Defendant Places for People Owed Decedent
Plaintiff's second amended petition specifically alleges "[Defendant] Places for People had the right to control and had a duty to control [Decedent] in that their mental health coordinator(s) as a result of their personal observation and/or investigation of [Decedent] had reasonable cause to believe that the likelihood of serious harm by [Decedent] to himself or others as a result of his mental disorder, including schizophrenia, was imminent in April of 2018 unless [Decedent] was immediately taken into custody and transported to a mental health facility, and [D]efendant Places for People had an affirmative duty pursuant to [section] 632.300 to have [Decedent] involuntarily committed to a mental health facility so that on April 13, 2018 [Decedent] would not have been walking in the rain in the dark and been struck and injured and killed by defendant Stacie Whitaker and her vehicle." Plaintiff also alleges Defendant Places for People had a duty imposed by common law and assumed a duty to ensure Decedent's safety before and on the night of the April 13 accident.
Plaintiff specifically alleges Defendant Places for People had a duty to involuntarily commit or otherwise ensure Decedent's safety before and on the night of the April 13, 2018 accident and knew that Decedent presented a likelihood of serious harm to himself or others because: (1) approximately three years prior to the April 2018 pedestrian-vehicle accident (during the timeframe of March 2014 into the year of 2015), Decedent lived in residential living facilities in the City of St. Louis associated with Defendant Places for People; (2) for about three years leading up to the April 2018 accident (from June 2015 through April 2018), Defendant Places for People had a "Personal Safety & Relapse Action Plan" for Decedent; (3) for about ten months leading up to the April 2018 accident (from June 2017 through April 2018), Decedent was being treated by Defendant Places for People and the treatment notes show Decedent had "[s]evere and [p]ersistent [m]ental [i]llness," "schizophrenia," and a "recent history of transience" relating to his housing situation; (4) Defendant's treatment notes for Decedent dated eight and four days prior to the April 13, 2018 accident (April 5 and April 9) state Decedent was homeless, was going to work with employees of Defendant Places for People on obtaining housing, lacked insight into his mental illness, and tended to use the emergency room as a place of shelter; (5) near the time of Decedent's April 2018 accident, Defendant's documents provided Decedent "was still in [the] engagement process, [was] very guarded, [was] delusional, [and had] non-sequential conversations"; and (6) near the time of Decedent's April 2018 accident, Decedent's treatment program was the highest level of care Defendant Places for People offers and is "specifically designed to meet all of the needs of people with the most serious of mental illnesses and the most complex additional challenges."
In sum, taking the allegations in the preceding paragraph as true and granting Plaintiff all reasonable inferences therefrom, see Aldridge , 503 S.W.3d at 316, Plaintiff's second amended petition establishes that in months and years prior and/or leading up to the time of Decedent's April 2018 accident: Defendant Places for People provided services to Decedent with respect to ongoing housing and mental illness issues and vague "[p]ersonal [s]afety" and "[r]elapse" issues; Defendant knew Decedent was homeless; Defendant knew Decedent had a lack of insight into his schizophrenia (which was a "most serious," "[s]evere[,] and [p]ersistent [m]ental [i]llness" with "the most complex additional challenges"); and Defendant knew Decedent's mental illness was not fully controlled, as he was "still in [the] engagement process, [was] very guarded, [was] delusional, [and had] non-sequential conversations."
2. General Law Regarding When a Defendant Owes a Decedent a Duty of Care
The issue of whether a defendant had a duty of care to protect a decedent from injury under the circumstances of a given case is "purely a question of law" to be decided by a court. Berliner v. Milwaukee Electric Tool Corp. , 501 S.W.3d 59, 64 (Mo. App. E.D. 2016) ; Burrell ex rel. Schatz v. O'Reilly Automotive, Inc. , 175 S.W.3d 642, 656 (Mo. App. S.D. 2005). The scope of a defendant's duty to another is also a question of law to be decided by a court. Tharp v. St. Luke's Surgicenter-Lee's Summit, LLC , 587 S.W.3d 647, 654 (Mo. banc 2019).
A legal duty owed by one party to another may arise from at least three sources: (1) it may be prescribed by the legislature; (2) it may arise because the common law imposes a duty based on the relationship between the parties, or because under a particular set of circumstances a party must exercise due care to avoid foreseeable injury; or (3) it may arise because a party has assumed a duty by contract or conduct. Christopher A. Jackson Revocable Inter Vivos Trust of 19 July 1995 v. Abeles & Hoffman, P.C. , 595 S.W.3d 156, 159-60 (Mo. App. E.D. 2020) ; Burrell , 175 S.W.3d at 656 (citing, inter alia , Scheibel v. Hillis , 531 S.W.2d 285, 288 (Mo. banc 1976) ); Bowan ex rel. Bowan v. Express Medical Transporters, Inc. , 135 S.W.3d 452, 457 (Mo. App. E.D. 2004).
3. Analysis of the Arguments in Plaintiff's First Point on Appeal
In this case, Plaintiff argues Defendant Places for People's alleged duty of care to involuntarily commit Decedent or otherwise keep him safe before and on the night of the April 2018 accident arises from all three of the aforementioned sources of a legal duty. See id. Plaintiff specifically contends the allegations in her second amended petition establish, (a) Defendant had an affirmative duty under section 632.300 to involuntarily commit Decedent to a mental health facility; (b) because of the particular set of circumstances in this case, Defendant had a duty to exercise due care to ensure Decedent's safety to avoid the allegedly foreseeable injuries to Decedent and his resulting death; and (c) Defendant assumed a duty by conduct to keep Decedent safe from injuries and death resulting from the pedestrian-vehicle accident in this case. See id.
a. Whether Defendant Places for People Had a Duty Under Section 632.300 to Involuntarily Commit Decedent to a Mental Health Facility
We will first discuss whether the allegations in Plaintiff's second amended petition establish Defendant Places for People had a duty under section 632.300 to involuntarily commit Decedent to a mental health facility. See Burrell , 175 S.W.3d at 651 n. 11, 657 ("sections 632.300-.475 provide the procedures and standards for involuntary treatment and [civil] detention") (referring to pre-2016 versions of the aforementioned statutes).
i. Section 632.300
Section 632.300 provides:
1. When a mental health coordinator receives information alleging that a person, as the result of a mental disorder, presents a likelihood of serious harm to himself or others, he shall:
(1) Conduct an investigation;
(2) Evaluate the allegations and the data developed by investigation; and
(3) Evaluate the reliability and credibility of all sources of information.
2. If, as the result of personal observation or investigation, the mental health coordinator has reasonable cause to believe that such person is mentally disordered and, as a result, presents a likelihood of serious harm to himself or others, the mental health coordinator may file an application with the court having probate jurisdiction pursuant to the provisions of section 632.305; provided, however, that should the mental health coordinator have reasonable cause to believe, as the result of personal observation or investigation, that the likelihood of serious harm by such person to himself or others as a result of a mental disorder is imminent unless the person is immediately taken into custody, the mental health coordinator shall request a peace officer to take or cause such person to be taken into custody and transported to a mental health facility in accordance with the provisions of subsection 3 of section 632.305.
3. If the mental health coordinator determines that involuntary commitment is not appropriate, he should inform either the person, his family or friends about those public and private agencies and courts which might be of assistance.
Accordingly, section 632.300 imposes an obligation on a "mental health coordinator" to investigate and evaluate information that "a person, as a result of a mental disorder, presents a likelihood of serious harm to himself or others[.]" See section 632.300.1(1)-(3). Section 632.300 also imposes an obligation on a "mental health coordinator" to either, (1) pursue "involuntary commitment" proceedings in court if, "as the result of personal observation or investigation, the mental health coordinator has reasonable cause to believe that such person is mentally disordered and, as a result, presents a likelihood of serious harm to himself or others"; or (2) "request a peace officer" to assist with "immediate[ ]" "involuntary commitment" "should the mental health coordinator have reasonable cause to believe, as the result of personal observation or investigation, that the likelihood of serious harm by such person to himself or others as a result of a mental disorder is imminent unless the person is immediately taken into custody ... and transported to a mental health facility[.]" See section 632.300.2; see also section 632.300.3; section 632.305. Importantly, as discussed in detail in the next subsection, the terms "[m]ental health coordinator" and "[l]ikelihood of serious harm" are very specific, statutorily-defined terms. See section 632.005(10) and (11) (emphasis omitted).
ii. Analysis and the Statutory Definitions of "Mental [H]ealth [C]oordinator" and "Likelihood of [S]erious [H]arm"
In this case, we find the allegations in Plaintiff's second amended petition do not establish Defendant Places for People had a duty under section 632.300 to involuntarily commit Decedent to a mental health facility because Plaintiff fails to allege sufficient facts that Defendant employed a "[m]ental health coordinator" as the term is defined in section 632.005(11) or that such a specifically-defined coordinator personally observed or investigated Decedent. See section 632.005(11) (emphasis omitted); section 632.300.1-.2; see also section 632.300.3; section 632.305.
"Mental health coordinator" as used in chapter 632 is specifically defined as:
a mental health professional who has knowledge of the laws relating to hospital admissions and civil commitment and who is authorized by the director of the department [of mental health], or his designee, to serve a designated geographic area or mental health facility and who has the powers, duties and responsibilities provided in this chapter[.]
Section 632.005(11) (emphasis omitted); see also section 630.045 ("[t]he director of the department [of mental health] may authorize such persons, including mental health coordinators, as are necessary to carry out the civil involuntary detention requirements of chapter 632") ; 25 4B MOPRAC section 632.300 (2d ed.) (March 2020 Update) (explaining that "[u]nder the former law, any person could apply to the court for the temporary emergency detention of an alleged mentally disordered person") (emphasis added).
As explained in Missouri Practice:
The office of mental health coordinator was first introduced into the mental health system with the adoption of the revisions to the mental health laws in 1978 which became effective January 2, 1979. As envisaged by the law and in practice, the mental health coordinators maintain offices at the mental health facility to which they are assigned. Their role is to bridge the gap and maintain a liaison between the medical and legal community. Because a part of their role is to make preliminary decisions as to whether or not allegedly mentally disordered persons are to be presented to a mental health facility for possible admission, it is critically important that the coordinators are not under the administrative control of the head of the mental health facility. [It is] ... abundantly clear that the coordinators work exclusively under the direction of the Director of the Department of Mental Health or his designee.
4B MOPRAC section 630.045 (2d ed.) (March 2020 Update).
Instead, Plaintiff only alleges in a conclusory manner that "[Defendant] Places for People had the right to control and had a duty to control [Decedent] in that their mental health coordinator(s) as a result of their personal observation and/or investigation of [Decedent] had reasonable cause to believe that the likelihood of serious harm by [Decedent] to himself or others as a result of his mental disorder, including schizophrenia, was imminent in April of 2018 unless [Decedent] was immediately taken into custody and transported to a mental health facility." (emphasis added). Plaintiff's mere allegation that Defendant had "mental health coordinator(s)" is a conclusory allegation of fact that cannot be considered in determining whether her second amended petition states a claim upon which relief can be granted. See McConnell v. West Bend Mutual Insurance Company , 606 S.W.3d 181, 190 (Mo. App. W.D. 2020) ("[a]lthough we treat all of the factual allegations in a petition as true, and liberally grant to plaintiffs all reasonable inferences therefrom, conclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted") (emphasis in original and quotation omitted); Wyman v. Missouri Dept. of Mental Health , 376 S.W.3d 16, 18, 19 n.2, 24-25 (Mo. App. W.D. 2012) (affirming dismissal of a plaintiff's retaliation claim against an individual defendant for personal liability under Missouri's Workers’ Compensation Law for failure to state a claim because although plaintiff argued in a conclusory manner that the defendant was an "employer," plaintiff did not allege defendant "ha[d] ... employees," which was a relevant part of the statutory-definition of the term "employer" set forth in section 287.030.1(3) RSMo Cum. Supp. 2011") (bracketed alterations in original).
Plaintiff's second amended petition fails to allege facts from which we could find or reasonably infer that Defendant Places for People employed a "[m]ental health coordinator" as the term is specifically defined in section 632.005(11) (a person who, inter alia , "is authorized by the director of the department [of mental health], or his designee, to serve a designated geographic area or mental health facility"). See section 632.005(11) (emphasis omitted); see also section 630.045. Plaintiff's petition also fails to allege facts from which we could find or reasonably infer that such a specifically-defined "[m]ental health coordinator" personally observed or investigated Decedent. See id. Therefore, Plaintiff's petition does not establish Defendant Places for People had a duty to involuntarily commit Decedent under section 632.300. See section 632.005(11); section 632.300.2; see also section 632.300.3; section 632.305; Wyman , 376 S.W.3d at 18, 19 n.2, 24-25 ; cf. Fugate v. Jackson Hewitt, Inc. , 347 S.W.3d 81, 86 (Mo. App. W.D. 2011) ("[c]onstruing [her] petition liberally and according [to] all reasonable inferences from the facts stated," finding a plaintiff sufficiently pleaded the statutorily-defined terms of "buyer" and "credit services organization").
We also find the allegations in Plaintiff's second amended petition do not establish Defendant Places for People had a duty under section 632.300 to involuntarily commit Decedent to a mental health facility because Plaintiff fails to allege sufficient facts that Decedent presented a "[l]ikelihood of serious harm" to himself or others, imminent or otherwise, as the term is statutorily-defined in section 632.005(10). See section 632.005(10) (emphasis omitted); section 632.300.2; see also section 632.300.3; section 632.305.
"Likelihood of serious harm" is defined as:
mean[ing] any one or more of the following but does not require actual physical injury to have occurred:
(a) A substantial risk that serious physical harm will be inflicted by a person upon his own person, as evidenced by recent threats, including verbal threats, or attempts to commit suicide or inflict physical harm on himself. Evidence of substantial risk may also include information about patterns of behavior that historically have resulted in serious harm previously being inflicted by a person upon himself ;
(b) A substantial risk that serious physical harm to a person will result or is occurring because of an impairment in his capacity to make decisions with respect to his hospitalization and need for treatment as evidenced by his current mental disorder or mental illness which
results in an inability to provide for his own basic necessities of food, clothing, shelter, safety or medical care or his inability to provide for his own mental health care which may result in a substantial risk of serious physical harm. Evidence of that substantial risk may also include information about patterns of behavior that historically have resulted in serious harm to the person previously taking place because of a mental disorder or mental illness which resulted in his inability to provide for his basic necessities of food, clothing, shelter, safety or medical or mental health care; or
(c) A substantial risk that serious physical harm will be inflicted by a person upon another as evidenced by recent overt acts, behavior or threats, including verbal threats, which have caused such harm or which would place a reasonable person in reasonable fear of sustaining such harm. Evidence of that substantial risk may also include information about patterns of behavior that historically have resulted in physical harm previously being inflicted by a person upon another person [.]
See section 632.005(10) (emphasis added and omitted). "[T]he ‘likelihood of serious harm’ standard is a high one and is only met when one or more of the [aforementioned] situations attend." Burrell , 175 S.W.3d at 657.
As previously indicated, Plaintiff's second amended petition alleges Defendant Places for People knew that Decedent presented a likelihood of serious harm to himself or others because in the months and years prior and/or leading up to the time of Decedent's April 2018 accident: Defendant Places for People provided services to Decedent with respect to ongoing housing and mental illness issues and vague "[p]ersonal [s]afety" and "[r]elapse" issues; Defendant knew Decedent was homeless; Defendant knew Decedent had a lack of insight into his schizophrenia (which was a "most serious," "[s]evere[,] and [p]ersistent [m]ental [i]llness" with "the most complex additional challenges"); and Defendant knew Decedent's mental illness was not fully controlled, as he was "still in [the] engagement process, [was] very guarded, [was] delusional, [and had] non-sequential conversations."
The aforementioned allegations do not support a finding that either: Decedent made any "recent threats" (verbal or otherwise) to "inflict serious physical harm on himself"; Decedent made any "attempts to commit suicide or inflict physical harm on himself"; or Decedent had "patterns of behavior that historically have resulted in serious harm previously being inflicted by [Decedent] upon himself[.]" Cf. section 632.005(10)(a). Similarly, the allegations do not support a finding that Decedent had "patterns of behavior that historically have resulted in serious harm to [Decedent] previously taking place[.]" Cf. section 632.005(10)(b). Finally, the allegations in Plaintiff's second amended petition do not support a finding that either: Decedent made any "recent overt acts, behavior or threats, including verbal threats" to inflict harm upon another person "which have caused such harm or which would place a reasonable person in reasonable fear of sustaining such harm"; or that Decedent had "patterns of behavior that historically have resulted in physical harm previously being inflicted by [Decedent] upon another person[.]" In sum, we cannot find or reasonably infer from the allegations in Plaintiff's second amended petition that Decedent presented a "[l]ikelihood of serious harm" to Decedent or others, imminent or otherwise, as the term is statutorily-defined in section 632.005(10). See section 632.005(10)(a)-(c) (emphasis omitted). Based on the foregoing, the allegations in Plaintiff's second amended petition do not establish Defendant Places for People had a duty under section 632.300 to involuntarily commit Decedent. See section 632.005(10)(a)-(c); section 632.300.2; see also section 632.300.3; section 632.305; Wyman , 376 S.W.3d at 18, 19 n.2, 24-25 ; cf. Fugate , 347 S.W.3d at 86.
b. Whether Defendant Places for People Had a Common Law Duty to Exercise Due Care to Ensure Decedent's Safety
We now turn to Plaintiff's argument that the allegations in her second amended petition establish Defendant Places for People had a common law duty to exercise due care to ensure Decedent's safety to avoid the allegedly foreseeable injuries to Decedent before and on the night of the April 2018 accident and his resulting death under the circumstances in this case.
i. General Law
This Court's determination of whether a duty exists in a particular case depends on several public policy considerations including "the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on defendant." Hallquist v. Midden , 196 S.W.3d 601, 604 (Mo. App. E.D. 2006) (quoting Hoffman v. Union Elec. Co. , 176 S.W.3d 706, 708 (Mo. banc 2005) ). Another public policy consideration is whether a defendant has "some right or obligation to control the activity that presents the danger of injury." Burrell , 175 S.W.3d at 656 (quoting Stitt by Stitt v. Raytown Sports Ass'n, Inc. , 961 S.W.2d 927, 931 (Mo. App. W.D. 1998) ).
Where, as in this case, there is the absence of a particular relationship recognized by law to create a duty, "the concept of foreseeability is paramount in determining whether a duty exists." Lopez v. Three Rivers Elec. Co-op., Inc. , 26 S.W.3d 151, 156 (Mo. banc 2000) ; see also Wieland v. Owner-Operator Services, Inc. , 540 S.W.3d 845, 848 (Mo. banc 2018) ("[t]he touchstone for the creation of a duty is foreseeability") (quotation omitted). "Foreseeability is defined ‘as the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.’ " Hallquist , 196 S.W.3d at 604 (quoting Lopez , 26 S.W.3d at 156 ). "A mere probability is insufficient; rather, there must be the existence of a probability which would cause a reasonable person to take precautions to avoid it." Hallquist , 196 S.W.3d at 604 (citing Lopez , 26 S.W.3d at 156 ). Accordingly, while "[i]t is true that in some circumstances, one may be charged with a duty of care to take precautions to protect others from ... criminal ... or reckless conduct of third persons[,]" such conduct and resulting injuries must be foreseeable. Irby v. St. Louis County Cab Co. , 560 S.W.2d 392, 395 (Mo. App. 1977).
Plaintiff does not argue Defendant Places for People and Decedent had a particular relationship recognized by common law that created a duty on the part of Defendant under the circumstances of this case, and we can find no case law supporting such an argument. See also Section II.B.3.c. of this opinion (finding no merit to Plaintiff's argument that Defendant Places for People assumed a duty to keep Decedent safe from his injuries and death by its conduct of providing services to Decedent).
ii. Analysis
In light of the public policy considerations set out above, we hold Defendant Places for People did not have a common law duty to Decedent under the circumstances of this case. See Hallquist , 196 S.W.3d at 604 ; Burrell , 175 S.W.3d at 656 ; see also Hoffman , 176 S.W.3d at 708 ; Stitt by Stitt , 961 S.W.2d at 931.
Most importantly, Decedent's injuries and resulting death from being struck by defendant Stacie Whitaker's vehicle were not foreseeable to Defendant Places for People. See Wieland , 540 S.W.3d at 848 ; Lopez , 26 S.W.3d at 156 ; see also Hallquist , 196 S.W.3d at 604 ; Irby , 560 S.W.2d at 395. According to the allegations in Plaintiff's petition, Whitaker (a third party unrelated to Defendant Places for People who has its principal place of business in the City of St. Louis): struck Decedent with her vehicle at night, in the dark, during a heavy rain, on a public road in St. Louis County. Near the time of the accident, Whitaker was allegedly engaging in potentially criminal and/or arguably reckless conduct by: driving at excessive speed in the rain; passing a vehicle in front of her as she accelerated; failing to use her turn signal while passing the vehicle in front of her; failing to keep a careful lookout; and driving her car while impaired and in an intoxicated condition.
This Court cannot find support for the proposition that there is more than a mere possibility that a consequence of a party such as Defendant Places for People (who provides services to persons like Decedent who had an uncontrolled severe mental illness, was homeless, and had vague "[p]ersonal [s]afety" and "[r]elapse" issues) would be struck and injured by a vehicle driven by an unrelated third party under the aforementioned circumstances. See Hallquist , 196 S.W.3d at 604 ; see also Lopez , 26 S.W.3d at 156. "Stated concisely, this outcome is not foreseeable." Hallquist , 196 S.W.3d at 604 ; see Irby , 560 S.W.2d at 395 ; see also Wieland , 540 S.W.3d at 848 ("[a] duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable") (quotation omitted); Hallquist , 196 S.W.3d at 603-06 (finding a defendant-driver who was pulled over for driving while intoxicated by a police officer had no duty to the officer under circumstances when the officer was struck by another drunk driver because "[i]t was not foreseeable [the defendant's] driving would cause an unrelated third party to cause injury to [the] [o]fficer").
Similarly, the likelihood of Decedent's injury and resulting death was not substantial, and it would be extremely difficult, if not impossible, for Defendant Places for People to guard against Decedent being injured under the circumstances of this case when (as discussed in Section II.B.3.a. and c. of this opinion), Defendant had no right or obligation to control Decedent from walking on a public road. And finally, the consequences of placing such a burden and potential liability on a party such as Defendant Places for People who provides services to individuals with mental illness and who are homeless would discourage organizations from providing these very important services to our community.
Based on all of the aforementioned public policy considerations, we hold Defendant Places for People did not have a common law duty to Decedent to exercise due care to ensure Decedent's safety to avoid the allegedly foreseeable injuries to Decedent before and on the night of the April 2018 accident and his resulting death under the circumstances in this case. See Hallquist , 196 S.W.3d at 604 ; Burrell , 175 S.W.3d at 656 ; see also Hoffman , 176 S.W.3d at 708 ; Stitt by Stitt , 961 S.W.2d at 931.
c. Whether Defendant Places for People Assumed a Duty by Conduct
Finally, we turn to Plaintiff's argument that the allegations in her second amended petition establish Defendant assumed a duty by conduct to keep Decedent safe from injuries and death resulting from the pedestrian-vehicle accident in this case.
i. General Law
"Missouri [C]ourts recognize that a defendant can assume a duty." Bowan ex rel. Bowan , 135 S.W.3d at 457. "If a defendant assumes a duty, by contract or by conduct, he can be held liable for injuries caused by the unsafe performance of that assumed duty." Id.
For example, the Missouri Supreme Court has adopted the Restatement (Second) of Torts section 323 (1965) ("section 323 of the Restatement"), which may impose a duty on a party who voluntarily renders particular services to another when he fails to exercise reasonable care in performing those services. Bowan ex rel. Bowan , 135 S.W.3d at 457-58 ; section 323 of the Restatement; see Junior College Dist. of St. Louis v. City of St. Louis , 149 S.W.3d 442, 451 (Mo. banc 2004) (explaining section 323 of the Restatement was adopted by the Missouri Supreme Court in Stanturf v. Sipes , 447 S.W.2d 558, 561 (Mo. 1969) ). Missouri case law further supports this concept. See Bowan ex rel. Bowan , 135 S.W.3d at 457-58 ; Keenan v. Miriam Foundation , 784 S.W.2d 298, 305 (Mo. App. E.D. 1990) (citing Hoover's Dairy, Inc. v. Mid–America Dairymen , 700 S.W.2d 426, 432 (Mo. banc 1985) ); see also Junior College Dist. of St. Louis , 149 S.W.3d at 451.
Section 323 of the Restatement provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.
ii. Analysis
In this case, Plaintiff asserts the allegations in her second amended petition establish Defendant Places for People assumed a duty by conduct to keep Decedent safe from his injuries and death resulting from the pedestrian-vehicle accident in this case because the petition alleges Defendant Places for People provided services to Decedent with respect to ongoing housing and mental illness issues and vague "[p]ersonal [s]afety" and "[r]elapse" issues in the months and years prior and/or leading up to Decedent's April 2018 accident. We disagree, finding the Southern District's decision in Burrell , 175 S.W.3d 642 to be instructive.
In Burrell , the plaintiff, who had "many physical and mental limitations," including a development age of only about six years old and "diffuse weakness in his extremities," was driving a motorized scooter across a street, where a vehicle owned by O'Reilly Automotive ("O'Reilly") hit him, causing injuries. Id. at 645-46, 648. The plaintiff brought suit against O'Reilly, which brought in third-party defendant Easy Living, Inc. ("ELI") for contribution on a negligence theory. Id. at 645. ELI "engaged in the business of helping persons with disabilities," including providing "supported living." Id. at 646. The trial court granted ELI summary judgment, and O'Reilly appealed. Id. at 645, 647.
On appeal, O'Reilly argued that by providing services to the plaintiff, ELI assumed a duty to protect him from his scooter injury; "the premise ... was that ELI owed a duty to [the] [p]laintiff to provide whatever services were necessary to always protect [the] [p]laintiff ‘from [being a] danger to himself or others.’ " Id. at 655 (some bracketed alterations added and some in original). Specifically, O'Reilly alleged ELI was under a duty to prevent the plaintiff from having or using a motorized scooter, or alternatively, that ELI was under a duty to supply the plaintiff protective headgear and require him to wear such headgear when operating the scooter on public streets or sidewalks. Id. The Southern District held that "because ELI had no power or right to control [the] [p]laintiff's ownership of the scooter, ... ELI had no duty to prohibit [the] [p]laintiff from owning the scooter, nor did it have a duty to control his use of it, nor did it have a duty to enforce a helmet use recommendation." Id. at 656-57.
In this case, Plaintiff's argument is essentially like O'Reilly's in Burrell – that because Defendant Places for People provided services to Decedent for ongoing housing and mental illness issues and vague "[p]ersonal [s]afety" and "[r]elapse" issues, Defendant assumed a duty to provide whatever services were necessary to always protect Decedent from being a danger to himself or others. Pursuant to the reasoning in Burrell , Defendant did not have a right, duty or obligation to control Decedent's behavior of walking on a public road. See id. Nor did Defendant Places for People have a right, duty, or obligation to monitor Decedent's movements day and night to ensure his safety or a duty to protect Decedent from potentially criminal and reckless conduct of unrelated third parties. See id. Therefore, we find the allegations in Plaintiff's second amended petition do not establish Defendant assumed a duty by conduct to keep Decedent safe from injuries and death resulting from the pedestrian-vehicle accident in this case.
4. Conclusion as to Plaintiff's First Point on Appeal
The allegations in Plaintiff's second amended petition do not establish Defendant Places for People owed Decedent a duty of care under the circumstances of this case. Therefore, the trial court did not err in dismissing Plaintiff's wrongful death claim against Defendant for failure to state a claim. See Aldridge , 503 S.W.3d at 316 ; Heffernan , 73 S.W.3d at 664 ; Robinson , 24 S.W.3d at 74 ; see also Nazeri , 860 S.W.2d at 306 ; Brewer , 498 S.W.3d at 843. Point one is denied.
III. CONCLUSION
Based upon the foregoing, the trial court's judgment dismissing Plaintiff's wrongful death claim against Defendant Places for People is affirmed.
Colleen Dolan, P.J., and Mary K. Hoff, J., concur.