Kacie Nickel v. Stephens College

In the
Missouri Court of Appeals
Western District
KACIE NICKEL, )
)
Appellant, ) WD77898
)
v. ) OPINION FILED:
) September 15, 2015
STEPHENS COLLEGE, ET AL., )
)
Respondents. )
Appeal from the Circuit Court of Boone County, Missouri
The Honorable Kevin M.J. Crane, Judge
Before Division Four: Alok Ahuja, Chief Judge, Presiding, Gary D. Witt, Judge and
John M. Torrence, Special Judge
This appeal arises out of an action brought by Appellant Kacie Nickel ("Nickel"),
in which Nickel sought damages against Respondent Stephens College ("Stephens") and
three of its employees, Deborah Duren ("Duren"), Erin Zevely ("Zevely"), and Tony
Coleman ("Coleman") (collectively "Respondents"), after Stephens issued Nickel a
withdrawal following an attempted suicide. Nickel asserted claims against Respondents
for Breach of Contract (Count I); Tortious Interference with a Contract (solely against the
individual respondents - Count II); Negligent Infliction of Emotional Distress (Count III);
Prima Facie Tort (Count IV); Negligent Supervision and Training (solely against
Stephens - Count V); Negligence Per Se (solely against Stephens - Count VI); and
Negligence (Count VII). The trial court granted summary judgment in favor of
Respondents on all counts and Nickel now appeals. For the following reasons, we affirm.
Factual and Procedural History1
On August 11, 2011, 21-year-old Nickel was admitted as a transfer student to
Stephens. Stephens is a pro forma Missouri corporation in good standing and a private
institution of higher education.2 Individual Respondents were employees of Stephens at
the time Nickel was a student.
Nickel listed in Stephens's "Application for Transfer Admission" that she had
previously attended New Haven High School, which was a residential treatment program
and boarding school. She did not disclose that the school was, in part, a mental health
treatment program. Nickel also completed a "Health Statement" for Stephens stating that
she had never received treatment or counseling or hospitalization for an emotional
problem.
Stephens allows students living on campus to have approved pets. Nickel
participated in this program and lived on campus in Prunty Residence Hall with her
emotional support dog, "Hippo." On October 4, 2011, Nickel went to the Stephens's
Counseling Center and indicated on an in-take form that she was having issues with
stress, fears, and health problems. The following day, Nickel was seen by a doctor at the
Counseling Center and told the doctor about her psychiatric history, including her
1
We view the facts in the light most favorable to the non-moving party. ITT Commercial Fin. Corp. v.
Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
2
Stephens accepts funding from the federal and state government by participating in grant, loan and
scholarship programs.
2
inpatient treatment at New Haven, prior hospitalizations, mental health and medical
history, and medications. Nickel successfully completed the Fall semester.
Classes for the Spring 2012 Semester began on January 9, 2012. Two days later,
on January 11, 2012, Nickel asked one of her friends to watch her dog, then drove to
McBaine, Missouri, where she attempted to take her own life by ingesting excessive
doses of over-the-counter medications.
Nickel's former boyfriend contacted the Columbia Police Department ("CPD") and
reported that he and Nickel had broken off their three-month long relationship earlier in
the day and he had received texts from Nickel threatening self-harm. A CPD officer was
dispatched to Prunty Hall at Stephens based on this report. Campus Security contacted
the Director of Security, Coleman, and notified him of the CPD report that Nickel was
possibly a threat to harm herself. Coleman also called the Student Services Coordinator,
Zevely, to inform her that they had a report that Nickel may attempt to harm herself.
Zevely located Nickel's emergency contact information, which identified Laurie
Nickel ("Laurie") as a person to communicate with in the event of an emergency.3
Zevely contacted Laurie to notify her of the emergency. A CPD officer also contacted
Laurie to inform her of the emergency.
Later that evening, Laurie, Zevely, and Coleman all learned that Nickel had been
located, was alive, and was in the Intensive Care Unit at University Hospital following a
3
When Nickel was admitted to Stephens, she signed an "Emergency Locator Card" that identified her
mother, Laurie, and her sister, Kendra Nickel ("Kendra"), as the persons to contact in the event of an emergency.
Because Laurie and Kendra share the same last name as the plaintiff, we refer to them by their first names. No
familiarity or disrespect is intended.
3
suicide attempt. On January 12, 2012, Laurie traveled from her home in Arizona to
Columbia, Missouri to be with Nickel.
In the days following, Zevely, Duren, the Vice President for Student Services,
along with Coleman and other members of the Stephens's Student Services Department,
discussed Nickel's emergency medical situation. Zevely and Duren discussed the
possibility of a medical withdrawal for Nickel and agreed to discuss the matter further
with Nickel's mother, Laurie.
Laurie communicated with Nickel via text prior to arriving in Columbia. Nickel
told Laurie that she was "sorry" and "want[ed] to stay in school." Laurie replied that she
"want[ed] [her] to stay in school."
On or about January 13, 2012, Laurie called Zevely and asked whether Nickel
could continue at Stephens. During this telephone conversation, the issue of Nickel's age
or ability to speak on her own behalf was not discussed, and at no time during the
conversation did Laurie request that anyone from Stephens speak directly with Nickel
about her status. Zevely indicated during that conversation that Nickel could not remain
at Stephens. Laurie believed that Zevely's answer did not leave any other options. Laurie
never inquired whether Nickel could take a leave and later return to Stephens. Nickel's
parents had paid all tuition for the 2011-2012 academic school year before classes started.
Laurie was told that Nickel's tuition would be refunded for the Spring 2012 semester.
Also during her call with Zevely, Laurie asked whether she and her sister, Carol Spratt,
could have until the weekend to gather Nickel's belongings, including Hippo. Zevely told
Laurie that she would contact Campus Security so that Laurie could be admitted to
4
Nickel's residence hall room for this purpose. Zevely did not think it was appropriate to
attempt to contact Nickel directly, nor did she believe she would be able to speak to her
based on previous experiences she had with individuals receiving inpatient treatment in a
hospital psychiatric unit.
Following this conversation with Laurie, Zevely informed Duren and other
Stephens administrators that Nickel was taking a medical withdrawal and prepared a form
indicating the withdrawal. Stephens processed Nickel's leave as a medical withdrawal.4
Stephens's withdrawal policy allows for withdrawal by students, or "at the request of
[Stephens]."
At the time when the decision was made to have Nickel take a medical
withdrawal, no one from Stephens had reviewed any of Nickel's medical records or
consulted with any of her health care providers, counselors, or Stephens's Staff
Psychologist. The only information Stephens had was that "there had been an overdose
and that [Nickel] had been dealt with medically and then was getting some psychiatric
help."5 At the time, Stephens did not have a specific "medical withdrawal" policy and
there was no appeal process for that decision.
On or about January 15, 2012, Laurie and Spratt came to Stephens's campus and
were given access to Nickel's dorm room to collect Nickel's belongings, including Hippo.
4
Nickel asked representatives whether she was being placed on medical withdrawal and she was told no.
The evidence in the record consistently shows that Nickel was not expelled but issued a withdrawal for medical
reasons. Expulsion from Stephens would have resulted in an indication of such on Nickel's transcript and the
inability to reapply for admission. No such indication was made on her transcripts and Nickel was told she could
reapply for admission to Stephens.
5
Although Nickel omitted Duren's deposition from the record on appeal, Nickel's Response to Stephens's
Motion for Summary Judgment alleges that Duren testified to the facts in this paragraph in his deposition.
5
At this time, Nickel was still an inpatient at University Hospital, where she was first
stabilized and then moved to the psychiatric unit.
Nickel was released from the Psychiatric Unit at University Hospital on or about
January 18, 2012. Soon after, Coleman received a text message from Nickel inquiring
about her status at Stephens. Following Nickel's text message, Duren, Zevely, and
Coleman spoke with Nickel on the telephone. During this conversation, Nickel asked
about her status with Stephens, and was told she had been withdrawn and was no longer a
student. Nickel was also told that she could reapply for admission.
Nickel was informed by Stephens officials that she was not allowed upon the
property of Stephens without a security escort or she would be subject to arrest and
criminal prosecution for trespass. Nickel later contacted Campus Security and was
allowed on campus to collect her books and request transcripts.
The Student Conduct Code ("SCC") is an annual publication of Stephens that
applies to all undergraduate students and provides rules, regulations, policies, and
procedures regarding student misconduct. The SCC states that it "is not a contract" and
that "Stephens reserves the right to amend any provision at any time."
If a student is determined to have violated the SCC, pursuant to the disciplinary
procedures, Stephens may impose various sanctions, up to and including expulsion.
Under the SCC, an expulsion will be recorded on the student's transcript. Nickel was
never told that she violated the SCC, her transcript does not note that she was expelled or
subjected to any disciplinary action.
6
Nickel filed suit in the circuit court of Boone County raising seven counts: Breach
of Contract (Count I); Tortious Interference with a Contract (solely against the individual
respondents - Count II); Negligent Infliction of Emotional Distress (Count III); Prima
Facie Tort (Count IV); Negligent Supervision and Training (solely against Stephens -
Count V); Negligence Per Se (solely against Stephens - Count VI); and Negligence
(Count VII). The petition requested actual and punitive damages. Following discovery,
the trial court granted the Respondents' Motion for Summary Judgment on all counts.
Nickel now appeals.
Briefing Deficiencies
At the forefront, we must note several deficiencies in Nickel's briefing. For
example, Nickel's first and second points on appeal are impermissibly multifarious
because they raise multiple, discrete complaints that are required by Rule 84.04(d)(1)(A)
to be asserted in separate points on appeal. See Host v. BNSF Ry. Co., 460 S.W.3d 87, 96
n.4 (Mo. App. W.D. 2015). Multifarious points on appeal preserve nothing for appellate
review. Id. Here, Nickel's first point combines her breach of contract claim and her
tortious interference with contract claim. Likewise, Nickel's second point combines her
negligent infliction of emotional distress claim with her prima facie tort, negligent
supervision and training, and her negligence claims. However, each of these claims is
separate and distinct and requires proof of distinct elements and for this reason the claims
of error should have been raised in separate points.
Another very significant deficiency in Nickel's briefing is that she does not cite to
the record to support her factual statements in the argument sections. Rule 84.04(e)
7
requires that "[a]ll factual assertions in the argument shall have specific page references
to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits." An
argument that violates Rule 84.04 wholly fails to preserve any error for review. Brown v.
Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 147 (Mo. App. W.D. 2007).
Compliance with Rule 84.04 briefing requirements is mandatory in order to
ensure that appellate courts do not become advocates by speculating on
facts and on arguments that have not been made. Deficient points relied on
force the appellate court to search the argument portion of the brief or the
record itself to determine and clarify the appellant's assertions, thereby
wasting judicial resources, and, worse yet, creating the danger that the
appellate court will interpret the appellant's contention differently than the
appellant intended or his opponent understood.
Treaster v. Betts, 297 S.W.3d 94, 95 (Mo. App. W.D. 2009) (internal citations omitted).
As we have noted:
Whether to dismiss an appeal for briefing deficiencies is discretionary. That
discretion is generally not exercised unless the deficiency impedes disposition on
the merits. It is always our preference to resolve an appeal on the merits of the
case rather than to dismiss an appeal for deficiencies in the brief. But where the
deficiencies in briefing are so substantial that the court is forced to speculate on
claims raised and facts and arguments to support those claims, then no meaningful
review can be conducted. This would impermissibly place upon this court the role
of advocate for a party.
Lanham v. Div. of Emp't Sec., 340 S.W.3d 324, 327 (Mo. App. W.D. 2011) (citations and
quotations omitted).
We will occasionally review non-compliant briefs ex gratia. Adams v. Div. of
Emp't Sec., 459 S.W.3d 918, 921 (Mo. App. W.D. 2015). "We do so, however, only
'where the argument is readily understandable.'" Id. In this matter, we exercise our
discretion to address the merits of the appeal insofar as the arguments being advanced can
be discerned.
8
Standard of Review
When considering an appeal from summary judgment, we review the trial court's
grant of summary judgment de novo. Reimer v. Hayes, 365 S.W.3d 280, 282 (Mo. App.
W.D. 2012) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854
S.W.2d 371, 376 (Mo. banc 1993)). We affirm the trial court’s grant of summary
judgment if no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law. Id. We will affirm summary judgment on any grounds
supported by the record, whether or not relied upon by the trial court. Id.
Point I
In her first point, Nickel contends that the trial court erred in sustaining Stephens's
Motion for Summary Judgment with respect to her breach of contract and tortious
interference with contract claims. She argues that the relationship between her and
Stephens was contractual in nature, that Stephens breached the contract, and that the
individual Respondents tortiously interfered with that contractual relationship.
Breach of Contract Claim
In order to make a submissible case for breach of contract, the complaining party
must establish the existence of a valid contract, the rights of plaintiff and obligations of
defendant under the contract, a breach by defendant, and damages resulting from the
breach. Lucero v. Curators of Univ. of Mo., 400 S.W.3d 1, 5 (Mo. App. W.D. 2013)
(citation omitted). Additionally, in order to assert a breach of contract claim against a
university, a student plaintiff must "point to an identifiable contractual promise that the
[university] failed to honor." Id. (citations omitted).
9
Nickel concedes that there is no explicit contract between Nickel and Stephens.
However, Nickel cites a number of cases from other jurisdictions that have found that an
implied contractual relationship forms between a university and its students. See e.g.,
Slaughter v. Brigham Young Univ., 514 F.2d 622, 625 (10th Cir. 1975); Merrow v.
Goldberg, 672 F. Supp. 766, 774 (D.Vt. 1987). The parties and the Court have not found
a case in Missouri that has held that an implied contract for educational services arises
between a student and University.6 It is unnecessary to decide whether such an implied
contract could exist, however, as Nickel cannot identify any "contractual" promise that
Stephens has failed to honor.
A very similar issue and approach was followed by this Court in Lucero. In
Lucero, a former law school student at the University of Missouri-Columbia brought a
6
Although unclear from the briefing, the record shows that Nickel is not arguing for the equitable remedy
of implied contract, where she would be seeking damages to prevent unjust enrichment, but rather an implied-in-fact
contract. "A true contract is said to be express or implied in fact, and differs from a quasi-contract which it is said is
no 'contract at all' but which is commonly called a contract implied in law. There is no difference in legal effect
between an express contract and one implied in fact. The distinction lies merely in the manner of manifesting
mutual assent." Bailey v. Interstate Airmotive, Inc., 219 S.W.2d 333, 338 (Mo. 1949). "When determining whether
an implied contract exists, the court will consider the parties' acts, conduct, and statements as a whole; whether there
was a meeting of the minds on the agreement's essential elements; the parties' intent to enter into a contract upon
defined terms; and whether one of the parties has relied in good faith upon the alleged contract." 17A AM. JUR. 2d
Contracts § 14 (2015). Nickel's position is inconsistent as she argues that the contract was implied in fact, i.e. not
express or written. Then she argues, however, that the SCC provides the terms of the implied contract. We will
assume for the present that her position is that even though the contract is implied, the terms of the SCC were
incorporated into that agreement. The terms of the SCC, however, expressly state that it is not a contract. This
would suggest that, at least with regard to the SCC, Stephens did not agree to entering into a contract on those terms.
In addition, Stephens reserved the right in the SCC to alter the terms of the SCC unilaterally. The ability to
unilaterally alter the terms of a contract makes the contract unenforceable. See Baker v. Bristol Care, Inc., 450
S.W.3d 770, 776-77 (Mo. banc 2014); see also Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662-63 (Mo.
banc 1988) (an employee handbook which was unilaterally prepared by an employer, and subject to change by the
employer at any time, did not establish enforceable contractual rights); Jennings v. SSM Health Care St. Louis, 355
S.W.3d 526, 533-34 (Mo. App. E.D. 2011) (same). Although we do not foreclose the potential for a contractual
relationship to develop between a university and a student, Missouri law requires that for an implied in fact contract
to exist, there must be a meeting of the minds on essential terms. We cannot find that such a meeting of the minds
occurred here at least with respect to any restriction on Stephens's ability to involuntarily withdraw a student for
medical reasons in the circumstances of this case. We do not believe this conflicts with cases by some courts that
have held open the opportunity for a contract to form between a university and student where the student can
identify a specific contractual promise for services that was broken and a meeting of the minds can be demonstrated.
See Robbe v. Webster, No. 4:14CV1223HEA, 2015 WL 1412014 (E.D. Mo. Mar. 25, 2015)
10
damages action against the university curators for breach of contract arising out of a
dispute between the student and a law professor. 400 S.W.3d at 3-4. The student alleged
that the university's rules and regulations formed the basis of contractual liability. Id. at
5. This Court noted that, unlike some jurisdictions, we were unaware of any case in
Missouri that had expressly found the existence of a contractual relationship between a
student and a university solely based on the student’s enrollment at a university. Id. at 4-
5. Rather than decide whether such a contract could exist, however, Lucero found that,
irrespective of the answer to that question, the plaintiff failed to establish what rights or
obligations under the alleged contract that the university breached. Id. at 5, 8. The rules
and regulations cited in Lucero were either aspirational in nature and non-enforceable as
contractual promises or, by their own terms, could not form the basis of a breach of
contract claim. Id. at 6-8.
Nickel identifies the General Procedures Regarding Disciplinary Action in the
SCC as the basis of the breached contract. The purpose of the SCC is to provide students
with general notice of prohibited conduct and disciplinary procedures. The SCC contains
sanctions for misconduct, such as academic dishonesty, harassment, physical assault,
hazing, etc. If a student is suspected of having violated the terms of the SCC, the SCC
sets out procedures to be followed by the university and possible sanctions if a violation
of the SCC is established.
Nickel argues that her involuntarily withdrawal was, in effect, an expulsion and,
thus, the procedures in the SCC that provide students the right to a hearing, etc. before an
expulsion can be implemented should have been followed in her case. The only
11
argument Nickel presents that the SCC should have governed the conduct and process at
issue in this case is the "fact" of her expulsion. "Expulsion," defined by the SCC, is the
"permanent separation of the student from the College. The sanction will be recorded on
the student's transcript. The Student will also be barred from College property. Only the
President of the College may recommend readmission of a student who has been
expelled."
It is uncontroverted that no complaint or action under the SCC was ever filed with
Stephens. It is uncontroverted that Nickel was never told she had violated the SCC. It is
uncontroverted that no record of expulsion appears on Nickel's transcripts. This is also
supported by Nickel's own statement that she was told she could reapply for Spring
semester admission. The only evidence submitted by Nickel to dispute Stephens'
averment that she was not expelled is deposition testimony, by Nickel, that states she was
told she could not physically return to campus without a security escort. This is
insufficient to create a dispute as to a genuine issue of material fact to contest Stephens'
assertion that Nickel was not expelled.
For purposes of Rule 74.04, a "genuine issue" exists where the record
contains competent materials that evidence two plausible, but contradictory,
accounts of the essential facts. A "genuine issue" is a dispute that is real,
not merely argumentative, imaginary or frivolous. Where the "genuine
issues" raised by the non-movant are merely argumentative, imaginary or
frivolous, summary judgment is proper.
ITT Commercial Fin. Corp., 854 S.W.2d at 382. The fact that the university told Nickel,
whose actions had demonstrated a risk of erratic behavior, that she could not physically
return to campus without an escort does not provide a refutation of Stephens's assertion
12
that she was not expelled but rather issued an involuntary medical withdrawal. After the
withdrawal, Nickel was no longer a student. Stephens, as a private university, could of
course determine that it was imprudent to allow her on campus so soon after an incident
of self-harm. Under the definition of expulsion contained within the document that
Nickel claims gave her identifiable rights and to Stephens identifiable obligations under
the alleged implied contract, Nickel was not expelled. Because Nickel was not expelled
but issued a medical withdrawal, the purported rights and obligations afforded to her by
the SCC were inapplicable.
In fact, the only written provision identified by the parties applicable to a
withdrawal supports the ability of Stephens, on its own initiative, to involuntarily
withdraw a student without that student's consent. Stephens's withdrawal policy is not a
part of the SCC but is contained in a separate document pertaining to the university's
Refund/Withdrawal Policy. The withdrawal policy states, "[w]ithdrawal may be
voluntary or at the request of the college." This allows for both voluntary withdrawals by
students and involuntary withdrawals "at the request of [Stephens]." Accordingly, Nickel
has not identified a specific promise or obligation that Stephens breached to form the
basis of her breach of contract claim. The trial court, therefore, did not err in granting
Stephens's motion for summary judgment with respect to Nickel's breach of contract
claim.
Tortious Interference with Contract Claim
Nickel's first point also includes a claim error in the grant of summary judgment
regarding the petition's claim of tortious interference with the contractual relationship
13
between Nickel and Stephens by the individually named Respondents. To prove a claim
of tortious interference with a contract or business expectancy, Nickel must demonstrate:
(1) a contract or valid business expectancy; (2) the defendant's knowledge of the contract
or relationship; (3) intentional interference by the defendant inducing or causing a breach
of the contract or relationship; (4) absence of justification; and (5) damages. Farrow v.
Saint Francis Med. Ctr., 407 S.W.3d 579, 602 (Mo. banc 2013). However, an action for
tortious interference with a business expectancy will lie only against a third party to the
contract. Id. Where the individual being sued is an officer or agent of the defendant
corporation, the officer or agent acting for the corporation is the corporation for purposes
of tortious interference. Id.; see also Fields v. R.S.C.D.B., Inc., 865 S.W.2d 877, 879
(Mo. App. E.D. 1993) (Plaintiff's claim of tortious interference is without merit because
"[t]he individual defendants were alleged to have acted as officers and agents of the
corporate defendants. Corporations can only act through their agents. An officer or
agent acting for the corporation is the corporation for purposes of the tort alleged here.")
Nickel alleges that the contractual relationship at issue is between herself and
Stephens. It is uncontroverted that, at all times, Respondents Duren, Zevely, and
Coleman "were acting within the course and scope of their employment" with Stephens.
Accordingly, the individual Respondents were not third-parties to the alleged contract.
Therefore, Nickel's claim against the individual Respondents for tortious interference
must fail. The trial court did not err in granting summary judgment in favor of Stephens
with respect to her tortious interference claim.
Point I is denied.
14
Point II
In her second point, Nickel argues that the trial court erred in granting summary
judgment in favor of Stephens on her claims of negligence, negligent infliction of
emotional distress, negligent training and supervision, and prima facie tort because
Stephens "owed a duty to [Nickel] to not expel her simply because of the manifestation of
mental health issues." Nickel has impermissibly grouped all these allegations of error
together in violation of this Court's briefing rules, but we will gratuitously address each
claim in turn.
Negligence and Negligent Infliction of Emotional Distress Claims
A negligence claim requires proof of: (1) a legal duty of the defendant to protect
the plaintiff from injury, (2) breach of the duty, (3) proximate cause, and (4) injury to the
plaintiff. Thornburg v. Fed. Express Corp., 62 S.W.3d 421, 427 (Mo. App. W.D. 2001).
Claims seeking recovery of damages for the negligent infliction of
emotional distress require proof of two additional elements: 1) that the
defendant should have realized that his conduct involved an unreasonable
risk of causing distress, and 2) that the emotional distress or mental injury
must be medically diagnosable and must be of sufficient severity so as to be
medically significant.
Id.
The issue of whether a duty exists for purposes of negligence claims is a question
of law for the court to determine. Lopez v. Three Rivers Elec. Coop., 26 S.W.3d 151, 155
(Mo. banc 2000).
The judicial determination of the existence of a duty rests on sound public policy
as derived from a calculus of factors: among them, the social consensus that the
interest is worthy of protection; the foreseeability of harm and the degree of
certainty that the protected person suffered injury; moral blame society attaches to
15
the conduct; the prevention of future harm; consideration of cost and ability to
spread the risk of loss; the economic burden upon the actor and the community
and others.
Dallas Airmotive, Inc. v. FlightSafety Int’l, Inc., 277 S.W.3d 696, 699 (Mo. App. W.D.
2008) (citation omitted).
Nickel argues that the duty owed to her by Stephens that supports her claims of
negligence arises out of the "special relationship between a student and his or her
college" and "imposes upon both parties certain duties and obligations" including "that
the college not arbitrarily and capriciously expel the student."7 Rather than support her
claim of the existence of this amorphous general legal duty between a college and each of
its students, Nickel relies only on the court's standard of review, arguing the cases cited
by Respondents in opposition to this view are inapplicable to these facts. In the present
case, the standard of review requires us to view the factual record in a light most
favorable to Nickel; however, it does not require us to assume that the law supports her
factual contention. Nickel has not cited authority from Missouri or any other jurisdiction
holding that a specific duty of care exists with regard to how a college or university
addresses a student's enrollment, handles an attempted suicide or other serious mental
health issue of a student, processes a medical withdrawal, or any other similarly
applicable duty.
This Court has consistently rejected the contention that simply enrolling in a
university creates a legal duty of care to support a negligence claim that involves the
7
Even though Nickel repeatedly asserts she was expelled from Stephens, the evidence in the record
indicates that she given an involuntary medical withdrawal for the semester.
16
university’s instruction of that student. In Dallas Airmotive, Inc., we rejected what have
been called "educational malpractice claims," which generally arise when a student
challenges allegedly deficient instructional methods. Id. at 699. We have found that
those claims are not cognizable because there is no duty. Id. Part of the reason for this
decision is that courts "have refused to become the 'overseers of both the day-to-day
operation of [the] educational process as well as the formulation of its governing
policies.'" Id. at 700 (quoting Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 472 (Minn.
Ct. App. 2008)). This is in accord with the general principle that no special relationship
exists between a college and its students even when it comes to matters of safety. See
Freeman v. Busch, 349 F.3d 582, 588 (8th Cir. 2003) (finding no special relationship);
Booker v. Lehigh Univ., 800 F. Supp. 234, 237–41 (E.D. Pa. 1992); Nero v. Kan. St.
Univ., 861 P.2d 768, 778 (Kan. 1993) (same); Univ. of Denver v. Whitlock, 744 P.2d 54,
59–61 (Colo. 1987) (same); Eiseman v. State, 511 N.E.2d 1128, 1136–37 (N.Y. App.
1987) (same); Beach v. Univ. of Utah, 726 P.2d 413, 415–16 (Utah 1986) (same).8
In the case at bar, Nickel claims that Stephens's decision to issue her a medical
withdrawal due to her mental health issues and hospitalization breached a duty that exists
simply by virtue of the university-student relationship. We have refused to recognize a
8
Missouri recognizes a narrow exception to this general rule in the school-student context where there is a
special relationship, insofar as the school has a duty to prevent the unreasonable risk of harm to students through the
conduct of third parties. In other contexts this duty arises between an innkeeper-guest, common carrier-passenger,
and sometimes employer-employee relationships. See e.g., Advance Rental Ctrs., Inc. v. Brown, 729 S.W.2d 644,
646 (Mo. App. S.D. 1987); Keenan v. Miriam Found., 784 S.W.2d 298, 301-02 (Mo. App. E.D. 1990). This narrow
exception for safety concerns arises in circumstances in which one party entrusts another for protection and relies
upon that party to provide a place of physical safety. See Claybon v. Midwest Petroleum Co., 819 S.W.2d 742, 744-
745 (Mo. App. E.D. 1991). This very narrow exception helps to prove the general rule that no generic special
relationship exists between a university and its students. In addition, other general duties remain independent of the
university-student relationship, such as the duty by an instructor to use reasonable care not to cause physical injury
during the course of instruction. Dallas Airmotive, Inc., 277 S.W.3d at 700-701 (citing Doe v. Yale Univ., 748 A.2d
834, 846–50 (Conn. 2000)).
17
duty to support a cause of action for negligence after educational services have been
rendered and Nickel has failed to cite authority which would support recognizing a duty
in connection with administrative decisions related to a student's enrollment status. For
these reasons, the trial court did not err in granting summary judgment in favor of
Stephens with respect to both Nickel's negligence and negligent infliction of emotional
distress claims.
Negligent Supervision and Prima Facie Tort Claims
Nickel's two remaining claims under Point II, Stephens's alleged negligent
supervision and training of its employees and prima facie tort, rely on the same
contention as her aforementioned negligence claims: that Respondents owed a duty to her
regarding her enrollment status at the university by virtue of the university-student
relationship. It is unclear to us what this alleged duty has to do with a negligent
supervision claim, see Dibrill v. Normandy Assocs., Inc., 383 S.W.3d 77, 87 (Mo. App.
E.D. 2012), or a prima facie tort claim, see Thomas v. Special Olympics Mo., Inc., 31
S.W.3d 442, 449 (Mo. App. W.D. 2000). Regardless, Nickel's point on appeal alleges it
was error to dismiss her tort claims as Stephens owed her a duty that we have found does
not exist, which is dispositive.9
9
Nickel argues that the SCC promulgated by Stephens is relevant to her tort claims. However, the SCC,
pertains to disciplinary procedures for wrongdoing by a student and the procedure for disciplining a student for
violating Stephens's policies. Nickel attempts to bootstrap the application of the SCC into the case at bar by arguing
that the effect of the medical withdrawal in this case was analogous to an expulsion from campus for a disciplinary
matter. However, had Nickel been expelled she would have been prohibited from applying to return to the school
and her permanent record would have reflected the disciplinary action taken against her. Accordingly, the SCC
would be inapplicable. Regardless, the question of existence of a common law duty to support a negligence claim is
a legal determination. See Dallas Airmotive, Inc., 277 S.W.3d at 699.
18
In addition, a negligent supervision claim requires as a necessary and
indispensable element that that the employee be acting outside of the scope of her
employment. See Truck Ins. Exch. v. Prairie Farming, LLC, 162 S.W.3d 64, 82 (Mo.
App. W.D. 2005) ("negligent supervision by a master requires a showing that the servant
was acting 'outside the course and scope of his employment'”); Reed v. Kelly, 37 S.W.3d
274, 277 (Mo. App. E.D. 2000) (citing RESTATEMENT (SECOND) OF TORTS § 317 (1965))
(defining a negligent supervision cause of action and noting, "this cause of action also
requires evidence that would cause the employer to foresee that the employee would
create an unreasonable risk of harm outside the scope of his employment” (emphasis
added)). As has already been established, it is uncontroverted that Respondents were at
all times acting with the course and scope of their employment. Accordingly, the
negligent supervision claim must fail.
In addition to this Court finding no duty, which was Nickel's claim of error
regarding her prima facie tort claim, such a claim requires, inter alia, a showing of
defendant's "intent to injure the plaintiff." LPP Mortg., Ltd. v. Marcin, Inc., 224 S.W.3d
50, 53-54 (Mo. App. W.D. 2007). "Spite or ill-will is necessary to satisfy the requisite
intent" and the burden on the plaintiff to submit evidence on this element is a heavy one.
Woolsey v. Bank of Versailles, 951 S.W.2d 662, 669 n.6 (Mo. App. W.D. 1997) (citing
J.S. DeWeese Co. v. Hughes–Treitler Mfg. Corp., 881 S.W.2d 638, 646 (Mo. App. E.D.
1994)). It is uncontroverted that the Respondents were concerned about Nickel's health
and well-being and they believed they were acting in her best interests. Nickel provided
19
no evidence in her opposition to summary judgment to refute Stephens' contention.10
This material fact, established in the record through competent evidence by Stephens, is
sufficient to entitle Stephens to summary judgment on Nickel's prima facie tort claim, in
addition to the additional reasons stated above.
Point II is denied.
Point III
In Nickel's final point on appeal, she contends that the trial court erred in granting
summary judgment in favor of Stephens with respect to her negligence per se claim
because Stephens "violated Title II of the Americans with Disabilities Act of 1990 (42
U.S.C. §12101), Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §701), and/or
the Individuals with Disabilities Education Act (20 U.S.C. §1431)."
The Court declines to review Nickel's third point on appeal. Nickel fails to
comply with Rule 84.04(d), as her point is merely an abstract statement that three federal
statutes have been violated. Abstract statements of the law, standing alone, do not
comply with this rule. Landwehr v. Landwehr, 129 S.W.3d 395, 398 (Mo. App. W.D.
2004). In addition, Nickel has not even attempted to explain how the statutes cited have
been violated and has not identified any evidence in the legal file in support of her claim,
in contravention of Rule 84.04(e). "Where briefing deficiencies are so substantial that, in
order to conduct any review, we 'would be forced to speculate not only as to the claims
being raised, but as to the facts and arguments being relied on in support of the same, we
10
Nickel objected to the statements regarding Respondents' mental states as being immaterial and
submitted a motion to strike. The motion to strike does not appear in the record, but the trial court's docket entry
shows the motion to strike was denied. As explained above, Respondents' intent was a material fact with regard to
her prima facie tort claim. Accordingly, these averments remain uncontroverted.
20
have no choice but to decline review.'" Id. (quoting Lemay v. Hardin, 108 S.W.3d 705,
709 (Mo. App. W.D. 2003)). Such is the case here.11
Point III is denied.
Conclusion
For the reasons described herein, the judgment of the trial court is affirmed.
__________________________________
Gary D. Witt, Judge
All concur
11
We note gratuitously, however, that Nickel has not identified any express language in these statutes that
suggest they were intended to set a standard of care for negligence actions. To the contrary, both the ADA and
Section 504 explicitly provide private rights of action where intentional discrimination can be demonstrated. See
Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011). "When the Legislature has established other
means of enforcement, we will not recognize a private civil action unless such appears by clear implication to have
been the legislative intent." Imperial Premium Fin., Inc. v. Northland Ins. Co., 861 S.W.2d 596, 599 (Mo. App.
W.D. 1993) (quoting Shqeir v. Equifax, Inc., 636 S.W.2d 944, 948 (Mo. banc 1982)). There is simply nothing in the
statutes cited by Nickel that suggests it was the legislature's intent to make the violation of these statutes actionable
in negligence. In addition, it appears that the purpose of the Individuals with Disabilities Education Act ("IDEA") is
to ensure that all children with disabilities have available to them a free appropriate public education. The IDEA
provides for remedies when public educational institutions fail to meet the required education standards. Forest
Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009). As such, it would appear on its face that the IDEA is not applicable
here, as Stephens is not a public but a private institution of higher education and Nickel is an adult.
21