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Daniels v. Senior Care6/29/2000
Appellants Ann Daniels and Nina Ruth McCullah ("Plaintiffs") sued Senior Care, Inc., a Missouri Corporation ("Defendant"), for the wrongful death of their mother, Imogene Ingram, resulting from a fire in their mother's home, in which Defendant's employee also perished. The Circuit Court granted Defendant's motion for summary judgment and Plaintiffs appeal.
In their appeal, Plaintiffs contend that the trial court erred in granting summary judgment and raise three points of trial court error. Plaintiffs assert that, contrary to the trial court's judgment, they offered facts showing that: (1) due to their mother's diminished mental capacity and while under Defendant's employee's care, Defendant owed a duty to their mother, either contractually or gratuitously, to provide 24-hour care; (2) Defendant breached this duty by Defendant's employee stacking "combustibles," i.e., papers and magazines, or allowing decedent to stack combustibles, against an electric baseboard heater in the home; or otherwise failed to provide adequate safeguards to protect their mother from "known hazards" that she didn't understand; (3) Defendant's employee's breach of duty was a proximate cause of a fire that ignited at their mother's home, ultimately resulting in her death. Because Plaintiffs' points are interrelated we review them conjunctively.
"This Court reviews the record in the light most favorable to the party against whom summary judgment was entered." Stanley v. City of Independence, 995 S.W.2d 485, 486 (Mo. banc 1999). "Review is essentially de novo, as the propriety of summary judgment is an issue of law." Id. "Summary Judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Id; see Rule 74.04(c)(3). "The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question." ITT Commercial Fin. v. Mid-Am Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993); see also Mueller v. Lemay Bank & Trust Co., 990 S.W.2d 690, 691 (Mo.App. 1999). " othing in ITT suggests that it intended to overrule a long standing rule . . . provid that on a summary judgment motion, 'neither the trial court nor we are authorized to determine the credibility of statements or testimony made under oath.'" Nolte v. Wittmaier, 977 S.W.2d 52, 59-60 (Mo.App. 1998). "Rather, such matters are for determination upon a complete trial." Id; see also Oetker v. Sherwood, 920 S.W.2d 639, 641 (Mo.App. 1996) ("On a motion for summary judgment, the court is not authorized to determine the credibility of conflicting testimony under oath, but rather, resolution of those matters is for the fact finder at a complete trial").
Viewed in the light most favorable to Plaintiffs, the evidence shows that the decedent was 86 years old at the time of her death. In deposition testimony, Dr. Philip J. LeFevre testified to treating decedent from 1985 through 1995. Dr. LeFevre indicated that at the time of his earliest visit with decedent she suffered from "a chronic schizophrenic condition, that had as its features, paranoia." He stated that she also was a "severe alcoholic," and he related his concerns that there was some beginning of dementia. Dr. LeFevre further testified that in his 1992 treatment of decedent "she was getting a fair amount of memory loss," meaning "getting a progression of the dementia . . . ." In seeing her again in 1994, he opined that " he dementia, however, was getting worse, in the sense of forgetfulness, especially of recent events." He also opined, based on a reasonable degree of medical and scientific certainty that:
she probably was suffering from a lifelong schizophrenic
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