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Negligence: Negligent Hiring – Punitive Damages – Fiduciary Duty

(1)Where a nursing home resident, who claimed that she was raped by a housekeeper, sued the owner of the nursing home and the director of nursing, the plaintiff based her negligence per se claims on the defendants’ alleged violations of federal and state nursing home regulations, and she asserted facts that established that she was a member of the class of people intended to be protected by the regulations and that her injury was also covered by the regulations, so the court erred in dismissing the counts.

(2)Where a nursing home resident argued that the nursing home and its nursing director breached their fiduciary duty by failing to protect her from harm based on her allegation of rape by a housekeeper, the trial court properly dismissed the claim because the plaintiff failed to show the existence of a fiduciary relationship since she did not plead that the defendants had responsibility for her property or manipulated her actions.

(3)Where a nursing home resident, who claimed that she was raped by a housekeeper, brought claims of negligent hiring and supervision against the owner of the nursing home and the director of nursing, the trial court’s dismissal of the claims for failure to state a claim is reversed because the plaintiff sufficiently pleaded that the defendants were required and failed to perform background checks, that they knew or should have known that the housekeeper had violent proclivities and that the defendants owed her a duty to protect her, but the plaintiff made only a conclusory allegation that the housekeeper was acting in the course and scope of employment, so a claim for vicarious liability was properly dismissed.

(4)Where a nursing home resident, who claimed that she was raped by a housekeeper, sued the owner of the nursing home and the director of nursing, the petition fully informed the defendants of the nature of the demand and sufficiently stated a claim for punitive damages.

Judgment is affirmed in part; reversed in part.

Dibrill v. Normandy Associates, Inc. (MLW No. 64315/Case No. ED97467 – 20 pages) (Missouri Court of Appeals, Eastern District, Cohen, J.) Appealed from circuit court, St. Louis County, DePriest Jr., J. (James C. Robinson for appellant) (Teresa D. Bartosiak for respondent).

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