         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
JANE DOE, BY AND THROUGH                       )
HER NEXT FRIEND, JANE DOE GMA,                 )
                                               )
               Respondent,                     )
                                               )
v.                                             )       WD79064
                                               )
ALBERTA HUGHES,                                )       Opinion filed: December 20, 2016
                                               )
               Appellant.                      )

     APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, MISSOURI
              THE HONORABLE RANDALL R. JACKSON, JUDGE

                  Before Division Three: Thomas H. Newton, Presiding Judge,
                   Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge


       Jane Doe (“Doe”) filed suit against Alberta Hughes (“Hughes”) claiming negligence

resulting in injury to Doe. A jury found in favor of Doe and determined the compensatory damages

to be $3,000,000.00, with thirty percent of fault apportioned to Doe’s grandmother (her legal

guardian). The jury further imposed $6,000,000.00 in punitive damages against Hughes. The trial

court entered judgment accordingly. Hughes appeals the denial of her motion for a directed verdict

and motion for judgment notwithstanding the verdict, or alternatively, her motion for new trial and

remittitur. Finding no error, the judgment of the trial court is affirmed.
                                      Factual and Procedural Background

           This appeal arises from a suit for negligence filed on behalf of Jane Doe against the

appellant Alberta Hughes. Hughes was an employee of Progressive Community Services (“PCS”).

PCS is a public entity organized under sections 205.968-731 and funded by a tax levy that was

approved by Buchanan County voters in 1978. PCS provides services to developmentally disabled

residents of Buchanan County, Missouri.

           Doe is a developmentally disabled woman, 35 years old at time of trial, with a condition

known as Rett’s Syndrome, an uncommon progressive genetic neurological disease. She possesses

the mental capacity of a two or three year old and suffers from autism, seizures, limited speech

capability, and motor discoordination. She lives with her maternal grandmother who is also her

legal guardian. Doe began receiving services from PCS in October of 2008, with Hughes acting as

her Community Networker. As a Community Networker, Hughes served as Doe’s mentor, teacher,

peer, and advocate and was responsible for her health, safety, and welfare. Hughes’ duties included

getting Doe out into the community, which she did by taking her to the local YMCA, the park, and

various restaurants, in addition to teaching Doe life skills such as laundry and simple cooking.

           Hughes’ responsibilities relating to Doe were defined by both general PCS policies as well

as a detailed individual care plan developed specially for Doe. Pursuant to PCS policies and the

individual care plan, Hughes was required to always be within arm’s reach of Doe, was required

to be able to reach Doe within ten seconds, was not permitted to take Doe to her home or to provide

care for her there, was not to allow third parties to transport Doe, and was required to prepare and

submit to PCS observation notes recording the activities she performed with Doe. During the time

Hughes served as Doe’s caregiver, she knowingly violated many of the requirements. Hughes



1
    All statutory citations are to the Revised Statutes of Missouri, 2000, as supplemented.

                                                             2
frequently took Doe to her home and provided care for her there, purposely falsified the records

of these incidents to hide the fact that she was providing services from her home, and, on multiple

occasions, permitted her husband Tony Hughes (“Husband”) to transport Doe. In addition, Hughes

discovered, after working with Doe for some time, that Husband was Doe’s uncle, which she hid

from PCS due to a belief that she would be terminated if PCS became aware of the family

relationship.

       Of these many indiscretions, the decision to allow Husband to transport Doe proved the

most disastrous. Husband had been previously convicted for stealing, tampering with a motor

vehicle, and armed robbery, all facts Hughes knew. Hughes also knew that Husband had previously

used drugs and admitted that she had feared that his drug use would return. In addition, she had

concerns regarding Husband’s marital fidelity and sexual predilections. Hughes was even aware

that in the past Doe, who could hardly communicate verbally, had grabbed at Husband’s penis in

a manner that the Husband later told police he did not believe was innocent. However, despite

knowledge of Husband’s significant and troublesome problems, Hughes willingly violated policy

and permitted Husband to transport Doe on multiple occasions, thereby providing the opportunity

for Husband to sexually assault her.

       In late April of 2013, Doe was taken by her grandmother to see her primary physician Dr.

Allen Brewer after she failed to menstruate over a five-month period. Dr. Brewer determined that

Doe was pregnant and arranged for an ultrasound and gynecological consultation. The following

July, Doe gave birth to a baby girl via caesarian section. Husband was later determined to be the

child’s biological father. Husband confessed to having sexual intercourse with Doe while

transporting her from Hughes’ residence to her grandmother’s house and subsequently pleaded

guilty to the class C felony of sexual assault for which he was sentenced to seven years in prison.



                                                 3
       In November of 2013, Doe and her baby, both through Doe’s grandmother as next friend,

as well as her grandmother individually, filed suit against PCS, PCS’s executive director Lynn

Wells, PCS service coordinator Terri Zeamer, PCS nurse Karla Halter, Hughes, and Husband. All

claims brought by Grandmother and Doe’s baby were later voluntarily dismissed, as were Doe’s

claims against Husband. In addition, the trial court dismissed Doe’s claims against Nurse Halter

for failure to file an affidavit of merit and granted PCS, director Wells, and coordinator Zeamer

summary judgment on the basis of sovereign and official immunity. The suit proceeded against

Hughes alone and resulted in a four day jury trial bifurcated into a liability and actual damages

phase followed by a punitive damages phase. At the close of the evidence, Hughes moved for a

directed verdict, which the trial court denied. The jury found in favor of Doe and awarded

$3,000,000.00 in compensatory damages, finding Hughes seventy percent at fault and apportioning

the other thirty percent of fault to Doe’s grandmother. The jury then awarded $6,000,000.00 in

punitive damages against Hughes. Hughes moved for a judgment notwithstanding the verdict, or

in the alternative a new trial or remittitur, which was denied by the trial court. Hughes timely

appealed.

                                            Discussion

       Hughes raises eight points on appeal, which can be broadly grouped into five categories.

We will discuss the points raised on appeal in the order most conducive to review.

                                       I. Official Immunity

       In her first point raised on appeal, Hughes argues that the trial court erred in overruling her

motion for a directed verdict and motion for judgment notwithstanding the verdict claiming she

was protected from liability under the doctrine of official immunity.




                                                 4
       “Whether immunity applies is an issue of law to the extent that there is no essential dispute

as to the operative facts.” Richardson v. Sherwood, 337 S.W.3d 58, 63 (Mo. App. W.D. 2011).

Such questions of law are reviewed de novo. Malam v. State, Department of Corrections, 492

S.W.3d 926, 928 (Mo. banc 2016). Official immunity is an affirmative defense, and as such,

Hughes bears the “the burden of pleading and proving that [she is] entitled to that defense.” Nguyen

v. Grain Valley R-5 School Dist., 353 S.W.3d 725, 730 (Mo. App. W.D. 2011).

       “Official immunity protects public officials from liability for alleged acts of ordinary

negligence committed during the course of their official duties for the performance of discretionary

acts.” Woods v. Ware, 471 S.W.3d 385, 391 (Mo. App. W.D. 2015) (quoting Davis v. Lambert–

St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006)). The judicially created doctrine “is

intended to provide protection for individual government actors who, despite limited resources and

imperfect information, must exercise judgment in the performance of their duties.” Id. (quoting

Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. banc 2008). Its purpose is to “permit

public employees to make judgments affecting public safety and welfare without concerns about

possible personal liability.” Id. (quoting Southers, 263 S.W.3d at 611).

       Whether official immunity applies turns on whether the public official was engaged in

discretionary or ministerial acts. Southers, 263 S.W.3d at 610. “Whether an act is discretionary or

ministerial depends on the degree of reason and judgment required to perform the act.” Davis, 193

S.W.3d at 763 (Mo. banc 2006) (internal quotation omitted). An act is considered discretionary if

it requires “the exercise of reason in the adaption of means to an end, and discretion in determining

how or whether an act should be done or a course pursued.” Id. (quoting Rustici v. Weidemeyer,

673 S.W.2d 762, 769 (Mo. banc 1984)). An act is considered ministerial when it is “of a clerical

nature which a public officer is required to perform upon a given state of facts, in a prescribed



                                                 5
manner, in obedience to the mandate of legal authority, without regard to his own judgment or

opinion concerning the propriety of the act to be performed.” Id. (quoting Rustici, 673 S.W.2d at

769). “To be liable for official acts, a public employee must violate either a departmentally-

mandated duty or a duty imposed by statute or regulation.” Woods, 471 S.W.3d at 392 (citing

Nguyen, 353 S.W.3d at 730). “[A] ‘departmentally-mandated duty’ may clearly arise from sources

other than statutes or regulations. Such a duty can arise from departmental rules, the orders of a

superior, or the nature of the position for which the defendant was employed.” Id. at 392-93

(quoting Nguyen, 353 S.W.3d at 730). “The determination of whether an act is discretionary or

ministerial is made on a case-by-case basis, considering: (1) the nature of the public employee's

duties; (2) the extent to which the act involves policymaking or exercise of professional judgment;

and (3) the consequences of not applying official immunity.” Id. at 393 (quoting Southers, 263

S.W.3d at 610).

       In the present case, no party argues that Hughes was not a public employee capable of

receiving official immunity. The only real contention is whether Hughes’ actions were

discretionary or ministerial in nature. Doe contends that Hughes’ duties were laid out in Doe’s

individual care plan and PCS policies. In particular, she points to the requirement in the individual

care plan that Hughes be within arm’s reach of Doe at all times and able to reach her within ten

seconds, as well as, PCS policies preventing Hughes from administering services in her own home

or allowing third parties to transport Doe. Doe contends that Hughes was required to follow these

instructions without regard to her own judgment or opinion thus rendering these acts ministerial.

        Several cases addressing the application of official immunity to caregivers supports a

finding that official immunity is not available to Hughes. Rush v. Senior Citizens Nursing Home,

for example, concerned a diabetic patient suffering from Alzheimer’s dementia who died as a result



                                                 6
of his nurse’s failure to follow protocol. Rush v. Senior Citizens Nursing Home Dist. of Ray County,

212 S.W.3d 155, 158-59 (Mo. App. W.D. 2006). The patient’s doctor had entered an order

requiring his blood sugar be tested four times a day and insulin provided pursuant to a sliding scale

if over a certain amount. Id. at 158. The evidence showed, however, that on multiple days the

patient’s blood sugar levels had been over the set amount with no insulin being administered by

the defendant nurse. Id. The court found that the nurse was not “required to exercise any

professional expertise or judgment” but rather was required to administer a specific amount of

insulin based on the patient’s blood sugar level. Id. at 161. Thus, the court concluded that the

nurse’s duty was ministerial and not discretionary.

       Nguyen v. Grain Valley involved a school nurse who failed to follow proper school district

procedures regarding head injuries that led to a wrongful death suit. Nguyen v. Grain Valley R-5

School Dist., 353 S.W.3d 725, 727–28 (Mo. App. W.D. 2011). The court in Nguyen noted that the

Missouri Supreme Court “has declared that, absent allegations that a state official violated ‘either

a statutory or departmentally-mandated duty,’ a petition's pleadings ‘are insufficient to state a

claim which is not barred by the doctrine of official immunity as a matter of law.’” Id. at 730

(quoting State ex rel Twiehaus v. Adolf, 706 S.W.2d 443, 445 (Mo. banc 1986)). The court found,

however, that such a departmentally-mandated duty “can arise from departmental rules, the orders

of a superior, or the nature of the position for which the defendant was employed.” Id. The court

went on to point out that

       [o]bviously, a janitor employed by the government that defies department rules
       and/or his supervisor's orders could not be reasonably deemed to be entitled to
       official immunity when he decides not to post a “wet floor” sign after mopping.
       The janitor's duty to post such a sign could not be deemed to require “the exercise
       of reason in the adaptation of means to an end and discretion in determining how
       or whether an act should be done or course pursued” regardless of whether such
       action is required by statute or state regulation.



                                                 7
Id. at 730-31. Based on these observations, the court concluded that because the school

nurse failed to follow district guidelines, and accompanying checklists, regarding the

treatment of students suffering from head injuries, the trial court erred in granting the nurse

summary judgment based on official immunity. Id. at 732.

        Hughes ignores Rush, Nguyen, and similar cases involving caregivers2 and attempts to find

relief in the holdings of Southers, Rhea, and their kin. This effort is misplaced. Southers and its

progeny were cases that concerned emergency responders who were involved in collisions while

in the act of responding to an emergency. Although the emergency responders in those cases were

alleged to have violated department policy and statutory requirements, the courts nevertheless

found that when “responding to an emergency…the officer exercises judgment and discretion and

is entitled to official immunity.” Rhea v. Sapp, 463 S.W.3d 370, 376 (Mo. App. W.D. 2015)

(quoting Davis v. Lambert–St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006));

Southers v. City of Farmington, 263 S.W.3d 603, 619 (Mo. banc 2008) (“Officer Ratliff's conduct

was in the course of his official duties and involved the kind of discretionary decisions that require

professional expertise and judgment that the official immunity doctrine is intended to protect. As

such, he is shielded from liability in this case by official immunity unless an exception to

application of the doctrine applies.”). The courts supported their conclusion by pointing out that

officers responding to “an emergency situation must use discretion regarding how fast he or she


2
  See, e.g., Richardson v. Burrow, 366 S.W.3d 552, 556 (Mo. App. E.D. 2012) (paramedic’s duty to intubate victim
was set by city mandates and was thus ministerial); Geiger v. Bowersox, 974 S.W.2d 513, 517 (Mo. App. E.D. 1998)
(prison nurse’s duties regarding maintenance and administration of inmates' prescriptions were set by prison policy
and thus ministerial). There are a number of other cases involving public employees with supervisory responsibility
over others that also support the same conclusion. See, e.g., Harris v. Munoz, 43 S.W.3d 384, 389 (Mo. App. W.D.
2001) (prison officials’ failure to follow prescribed policies concerning the handling of non-contraband inmate
property was breach of ministerial duty.) Davis-Bey v. Missouri Dept. of Correction, 944 S.W.2d 294, 298 (Mo. App.
W.D. 1997) (bus driver in charge of transporting inmates engaged in ministerial action and not insulated from suit by
inmate injured when bus rear-ended another vehicle).



                                                         8
can safely drive in response to the call, the route he or she must take based on the amount of traffic,

and the location of the problem” and that, as a result, they are granted “immunity in order that they

may act decisively, even though they might afterwards, by hindsight, be adjudged to have acted

negligently.” Rhea, 463 S.W.3d at 376 (internal citations omitted). Conversely, “in a non-

emergency situation, the operation of a vehicle does not require a public official to exercise

policymaking or the exercise of professional expertise or judgment.” Id. (internal citations

omitted); Southers, 263 S.W.3d at 619 (“The official immunity doctrine does not apply to police

officers responding to non-emergencies, but it does apply if the officers are responding to an

emergency.”); Thomas v. Brandt, 325 S.W.3d 481, 484 (Mo. App. E.D. 2010) (“When publicly-

employed emergency medical personnel are treating patients, their negligent acts are protected by

official immunity only if they are acting in a true emergency situation.”).

         Hughes’ effort to analogize her conduct to that of an emergency responder is unpersuasive.

Hughes was not required to make snap decisions or act decisively to resolve an immediate

problem.3 Much like the hypothetical janitor’s duty to place a wet floor sign discussed in Nguyen,

Hughes’ duty to remain in close proximity to Doe and not to let third parties transport her did not

require “the exercise of reason in the adaption of means to an end, and discretion in determining

how or whether an act should be done or a course pursued.” Davis v. Lambert–St. Louis Int'l



3
  We do not mean to imply that those who are not emergency responders may never receive official immunity
protection. In such cases, the question remains whether the acts performed were discretionary or ministerial in nature.
Thus, for example, in the case of Woods v. Ware, the court found that a wrestling coach was protected by the doctrine
as it concluded that the school’s policies requiring that students be properly supervised “leave it to the discretion of
the wrestling coaches to determine how to supervise students and how to recognize the difference among students and
seek to meet their individual needs.” Woods v. Ware, 471 S.W.3d 385, 393-94 (Mo. App. W.D. 2015). Similarly, in
Warren v. State, the court found that prison officials were immune from suit by an inmate who was injured using a
table saw as the Missouri statute and regulation that were arguably violated required the purchase of “suitable”
equipment and “appropriate” safety guards without describing what satisfied “suitable” or “appropriate,” leaving that
to the discretion of the officials charged with carrying out the duties involved. Warren v. State, 939 S.W.2d 950, 953-
54 (Mo. App. W.D. 1997). In the present case, by contrast, Hughes’ duties, as laid out in the individual care plan and
PCS policies, were specific and left no room for interpretation and thus were ministerial in nature.


                                                           9
Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). The relevant PCS policies and the individual care

plan applicable to Doe allowed no flexibility to Hughes to apply her own judgment and therefore

constituted ministerial duties.

       Even if we were to accept Hughes’ strained argument that her actions were discretionary

under Southers, our conclusion would remain unchanged owing to the willful nature of Hughes’

misconduct. The court in Southers pointed out that “the doctrine of official immunity will not

apply to conduct that is willfully wrong or done with malice or corruption.” Southers v. City of

Farmington, 263 S.W.3d 603, 612 (Mo. banc 2008); see also, e.g., Blue v. Harrah's North Kansas

City, LLC, 170 S.W.3d 466, 479 (Mo. App. W.D. 2005) (“[O]fficial immunity does not apply to

discretionary acts done in bad faith or with malice.”); Stephens v. Dunn, 453 S.W.3d 241, 250

(Mo. App. S.D. 2014) (same); Conway v. St. Louis County, 254 S.W.3d 159, 165 (Mo. App. E.D.

2008) (“There are certain exceptions to official immunity for discretionary acts performed in bad

faith or with malice.”). Hughes not only violated PCS policy by bringing Doe to her own home

and allowing Husband to transport Doe back to her grandmother’s house, but also purposely

falsified the observation notes she submitted to PCS regarding these activities to conceal the

transgressions. Further evidence established that Hughes purposely concealed Husband’s family

connection to Doe from PCS despite knowing that such family relationships between a caregiver

and a client were equally prohibited. Hughes was aware of these policies and that violations could

lead to significant consequences, including discharge, and proceeded regardless but took the time

to falsify her reports, hoping to avoid recriminations. The conscious choice to lie demonstrates the

bad faith implicit in her actions that would serve to strip her of any immunity that may have existed.

       The purpose of the official immunity doctrine is to provide protection to public employees

who act in good faith to benefit the public welfare in the discharge of their duties but ultimately



                                                 10
fail to achieve the highest degree of prudence. See Woods v. Ware, 471 S.W.3d 385, 391 (Mo.

App. W.D. 2015). It does not apply in situations where a public employee intentionally acts in an

improper manner with disregard for the public welfare, or otherwise demonstrates a willingness to

subvert the mandates of her employment. Hughes did not simply act or fail to act in the manner

required but rather knowingly did so and then went to significant lengths to conceal her

noncompliance. The protection of official immunity is not afforded to those that engage in this

level of intentional malfeasance.

       Hughes’ argument that she is entitled to official immunity must therefore necessarily fail

on two grounds. First, it was Hughes’ responsibility to act as Doe’s physical guardian, to remain

in close proximity to her, and not to permit transportation by third parties, all tasks that were not

subject to her judgment or discretion. As a result, Hughes’ duties with regard to Doe’s supervision

were ministerial, and she is not entitled to official immunity for violating these duties by allowing

Husband to transport Doe. Second, the willful nature of her wrongful conduct, confirmed by her

considerable efforts to conceal her actions, including the falsification of Doe’s observation notes,

further renders official immunity unobtainable. For both of these reasons, Hughes’ first point on

appeal is denied.

                            II. Proximate Cause and Foreseeability

       Hughes’ second point on appeal is that the trial court erred in overruling her motion for a

directed verdict and motion for judgment notwithstanding the verdict. arguing a lack of substantial

evidence to support a finding that Husband’s sexual assault of Doe was foreseeable. Hughes’ third

point claims error in overruling her motion for a directed verdict and motion for judgment

notwithstanding the verdict arising from a lack of substantial evidence to support a finding of

proximate cause. These two points share a common core, which leads us to discuss them together.



                                                 11
       The standards for review for a denial of a judgment notwithstanding the verdict and for

review of the overruling of a motion for directed verdict are the same. Klotz v. St. Anthony's

Medical Center, 311 S.W.3d 752, 769 (Mo. banc 2010) (citing Giddens v. Kansas City S. Ry. Co.,

29 S.W.3d 813, 818 (Mo. banc 2000)). In order to survive either motion, the plaintiff must prove

they have made a submissible case. Montgomery v. Wilson, 331 S.W.3d 332, 336 (Mo. App. W.D.

2011). A case is not considered submissible “unless each and every fact essential to liability is

predicated on legal and substantial evidence.” Klotz, 311 S.W.3d at 769. “In determining whether

the evidence was sufficient to support the jury's verdict, the evidence is viewed in the light most

favorable to the result reached by the jury.” Id. This court will reverse the denial of such a motion

“only when all of the evidence and the reasonable inferences to be drawn therefrom are so strong

against the plaintiff's case that there is no room for reasonable minds to differ” and “[w]e will

reverse the jury's verdict for insufficient evidence only where there is a complete absence of

probative fact to support the jury's conclusion.” Montgomery, 331 S.W.3d at 336. (internal

citations omitted). Because the question of “whether evidence is substantial and whether any

inferences drawn are reasonable is a question of law,” our review is de novo. Id.

       In an action for negligence, a plaintiff must establish four elements: “(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.” Nickel v. Stephens College, 480 S.W.3d 390, 400 (Mo. App. W.D. 2015).

Hughes raises no contention that she did not owe a duty to Doe, and we find no reason not to

conclude the same. Once a duty has been established, the next question is whether the duty has

been breached. A breach occurs when a party fails to act according to the relevant standard of care

imposed by a duty. Ostrander v. O'Banion, 152 S.W.3d 333, 338 (Mo. App. W.D. 2004). In this

case, the parties agreed that the applicable standard of care was that of “ordinary care.” The



                                                 12
standard of “ordinary care” is one that “requires a defendant to exercise the degree of care of a

reasonable person of ordinary prudence under similar circumstances.” Chavez v. Cedar Fair, LP,

450 S.W.3d 291, 294 (Mo. banc 2014). Combining the foregoing, Hughes breached her duty of

ordinary care owed to Doe if “a reasonably prudent person would have [foreseen] danger and

provided against it.” O.L. v. R.L., 62 S.W.3d 469, 476 (Mo. App. W.D. 2001) (quoting Scheibel v.

Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976)). As such, “the consideration of breach of duty will

involve an integrated assessment of the degree of risk and severity of potential harm and the

likelihood that injury may occur absent reasonable precautions.” Id.

       Having established what we must consider, we examine whether there was sufficient

evidence for the jury to determine that Hughes should have foreseen the danger to Doe under the

circumstances, thus rendering her actions a breach of the duty she owed Doe. Hughes was well

aware of Doe’s particular vulnerabilities due to her disabilities, possession of the mental capacity

of a two or three year old, and other medical frailties. Where the gravity of possible harm is high

or the victim particularly vulnerable, a lesser showing of foreseeability is required to establish

breach. See, e.g., id. at 477 (“[O]rdinary care may require more vigilance and caution when a child

is involved if there is a potentially dangerous situation of which a supervisor is or should be

aware.”). Hughes was also aware that Husband was a felon with convictions for stealing, tampering

with a motor vehicle, and armed robbery. In addition, recorded phone conversations between

Hughes and Husband established the concerns she held regarding Husband’s marital infidelity and

her belief that Husband had a “sex problem” as well as the worries she maintained about his past

and potential future drug use. Finally, Hughes was aware that Doe had on several occasions

grabbed at Husband’s penis while he walked by her in their home. With all these considerations in

mind, we cannot agree with Hughes’ contention that there was “a complete absence of probative



                                                13
fact to support the jury's conclusion.” Montgomery v. Wilson, 331 S.W.3d 332, 336 (Mo. App.

W.D. 2011).

       Foreseeability also arises in the context of the third element of negligence, proximate cause.

“In order to prove a causal connection to establish negligence, the plaintiff must show both

causation in fact and proximate cause.” Robinson v. Missouri State Highway and Transp. Com'n,

24 S.W.3d 67, 77 (Mo. App. W.D. 2000) (internal quotations omitted). Causation in fact,

sometimes referred to as “but for” cause (or sine qua non), is established when it is shown that a

plaintiff’s injury “would not have occurred but for [the defendant’s] conduct.” Id. “Proximate

cause is not causation in fact, but is a limitation the law imposes upon the right to recover for the

consequences of a negligent act.” Id. (internal quotations omitted). Proximate cause is a question

normally reserved for the trier of fact and “absolves those actors whom it would be unfair to punish

because of the attenuated relation which their conduct bears to the plaintiff's injury.” Wilmes v.

Consumers Oil Company of Maryville, 473 S.W.3d 705, 721 (Mo. App. W.D. 2015). It is

determined “by looking back, after the occurrence, and examining whether the injury appears to

be a reasonable and probable consequence of the conduct.” Id. (internal quotations omitted). Stated

differently, “in order for an act to constitute the proximate cause of an injury, some injury, if not

the precise one in question, must have been reasonably foreseeable.” Id. “[T]he test for proximate

cause is not whether a reasonably prudent person would have foreseen the particular injury, but

whether, after the occurrences, the injury appears to be the reasonable and probable consequence

of the act or omission of the defendant.” Id. (internal quotations omitted). “It is only necessary that

the party charged knew or should have known there was an appreciable chance some injury would

result.” Id. (internal quotations omitted).




                                                  14
       It is important to understand the distinction between foreseeability in a proximate cause

analysis and foreseeability in a duty or breach analysis. The Missouri Supreme Court has held that

“[f]oreseeability for purposes of establishing whether a defendant's conduct created a duty to a

plaintiff depends on whether the defendant should have foreseen a risk in a given set of

circumstances.” Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 156 (Mo. banc 2000).

When foreseeability is considered in this context, it “is forward-looking.” Id. “In the context of

determining proximate causation, however, foreseeability refers to whether a defendant could have

anticipated a particular chain of events that resulted in injury or the scope of the risk that the

defendant should have foreseen.” Id. Thus, in determining proximate cause “foreseeability relies

upon hindsight to determine whether the precise manner of a particular injury was a natural and

probable consequence of a negligent act.” Id.

       Against this backdrop, there can be no dispute that Hughes’ breach of duty was the

proximate cause of Doe’s injury. Hughes breached her duty of care when she allowed Doe to be

transported alone by Husband, in violation of PCS policy and Doe’s individual care plan, exposing

her to the foreseeable risk that Husband would take advantage of Doe’s known vulnerabilities. The

harm that resulted from this breach is of the type that occurs when the vulnerable are left alone

with the dangerous, thus rendering Hughes’ abdication of her duty by abandoning Doe to the

custody of Husband the proximate cause of the injury. This harm was not so extraordinary,

unpredictable, or attenuated that Hughes should be absolved from her actions, but rather directly

arose as the natural outcome of her actions. Hughes’ second and third points are denied.

                                 III. Admissibility of Evidence

       Hughes’ fifth and sixth points on appeal claim error in the admission of excerpts from

recorded telephone conversations between her and Husband while he was incarcerated and the



                                                15
testimony of Doe’s treating physician Dr. Alan Brewer, respectively. In her fifth point, Hughes

claims the admission of excerpts from telephone conversations she had with Husband, following

his confession to sexually assaulting Doe and subsequent conviction, lacked relevance and was

unfairly prejudicial. Hughes further claims in her sixth point that the admission of the testimony

of Doe’s treating physician consisted of improper opinion testimony as it lacked the necessary

foundation.

        Because “the determination of whether to admit evidence is within the sound discretion of

the trial court,” a reviewing court will only reverse the trial court’s decision if it finds the trial court

abused its discretion. Elliott v. State, 215 S.W.3d 88, 92 (Mo. banc 2007). A “trial court abuses its

discretion when its ruling is clearly against the logic of the circumstances then before the trial court

and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack

of careful deliberate consideration.” Dodson v. Ferrara, 491 S.W.3d 542, 552 (Mo. banc 2016).

“If reasonable persons could differ as to the propriety of the trial court's decision, then it cannot be

said that the trial court abused its discretion.” Martin v. Martin, 483 S.W.3d 454, 458 (Mo. App.

W.D. 2016).

        In order for evidence to be admissible, it must be both logically and legally relevant. Nolte

v. Ford Motor Company, 458 S.W.3d 368, 382 (Mo. App. W.D. 2014). Evidence is logically

relevant if it tends “to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” Id. (internal

quotations omitted). Legal relevance by comparison is based on a “balance between the probative

and prejudicial effect of the evidence” Id. (internal quotations omitted). This “balancing requires

the trial court to weigh the probative value, or usefulness, of the evidence against its costs,

specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the



                                                    16
jury, waste of time, or needless presentation of cumulative evidence.” Id. (internal quotations

omitted). “If the cost outweighs the usefulness, the evidence is not legally relevant and should be

excluded.” Id. (internal quotations omitted).

        The excerpts from the telephone conversations between Hughes and Husband included

several statements concerning beliefs Hughes held regarding Husband’s sexual proclivities,

marital infidelity, and potential for drug use, as well as her own admissions to falsifying her

observation notes submitted to PCS regarding the services provided Doe and that she had been

concerned about being terminated for providing services to Doe at her home. While many of the

statements involved profanity and did little to portray Hughes in a sympathetic light, they were

undoubtedly logically relevant to establishing Hughes’ knowledge regarding both the duty she

owed to Doe and the danger Husband posed to Doe if permitted to be alone with her. In other

words, they were probative in aiding the jury’s determination regarding the foreseeability of

Husband’s actions, which is fundamentally relevant to determining Hughes’ liability. 4 Whatever

prejudicial effect that may arguably have arisen from the use of these conversations was

substantially outweighed by their probative value, and the trial court’s decision to admit them

cannot be considered so unreasonable and arbitrary as to shock our sense of justice. As such, the

trial court did not abuse its discretion in admitting this evidence and Hughes’ fifth point is denied.

        With regard to Hughes’ sixth point relating to the testimony of Dr. Brewer, “[t]he

admission and exclusion of expert testimony in civil cases in Missouri is governed by section

490.065.” Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 310 (Mo. banc 2011).

Under the statute, a circuit court must determine “whether (1) the expert is qualified; (2) the



4
 Hughes contends that the excerpts lacked logical relevance because they were made after the incidents and concerned
suspicions that Hughes formed in retrospect. The substance of the excerpts, however, plainly revealed beliefs and
concerns she held prior to the incidents at issue in this case.

                                                        17
expert's testimony will assist the trier of fact; (3) the expert's testimony is based upon facts or data

that are reasonably relied on by experts in the field; and (4) the facts or data on which the expert

relies are otherwise reasonably reliable.” Id. “In deciding whether to admit an expert's testimony,

the circuit court is required to ensure that all of the statutory factors are met; however, the court is

not required to consider the degree to which they are met.” Id. So long as the trial court finds that

the factors are met, the expert is qualified and “any weakness in the expert's knowledge is for the

jury to consider in determining what weight to give the expert.” Id. Thus, any alleged weaknesses

in the testimony of the expert go “to the weight that testimony should be given and not its

admissibility.” Id. As such, our courts have held that an “expert's opinion will be admissible, unless

the expert's information is so slight as to render the opinion fundamentally unsupported.” Mathes

v. Sher Express, L.L.C., 200 S.W.3d 97, 111 (Mo. App. W.D. 2006).

        Dr. Allen Brewer was Doe’s primary physician, and had been for nearly fifteen years. He

possessed a medical degree, was a fellow of the American College of Osteopathic Family

Physicians, and was board certified in family practice. During trial, Hughes raised no objections

to his curriculum vitae or otherwise challenged his medical credentials and does not do so now.

As a result, there is little difficulty in determining his qualifications as an expert under section

490.065 based on his “knowledge, skill, experience, training, or education.” Dr. Brewer testified

based on his observations of Doe as her primary physician, and this testimony was relevant to

assist the trier of fact in making their determination regarding Doe’s physical, mental, and

emotional injuries. Hughes’ primary contentions regarding Dr. Allen’s testimony concerned the

fact that Doe was the only patient he treated with Rett’s syndrome, his limited experience in

dealing with emotional distress, the fact that he saw Doe in person only twelve times in fifteen

years, and his statement that it would be speculation to attribute Doe’s behavioral changes to her



                                                  18
sexual assault as she did not communicate verbally. All of these factors were relevant in

determining what weight to give Dr. Brewer’s testimony, and were appropriately probed during

his cross-examination. However, they do not render Dr. Brewer’s opinion “fundamentally

unsupported” and thus inadmissible. See Mathes, 200 S.W.3d at 111. Hughes’ sixth point on appeal

is denied.

                                   IV. Compensatory Damages

       Hughes’ seventh point raised on appeal maintains that the trial court erred in overruling

her motion for a new trial or remittitur on the basis that the jury’s award was so excessive as to

demonstrate bias. A claim that the trial court erred in denying motions for a new trial and remittitur

is reviewed for an abuse of discretion. Mackey v. Smith, 438 S.W.3d 465, 480 (Mo. App. W.D.

2014). The “appellant must show both that the verdict is excessive and that some event occurred

at trial that incited the bias and prejudice of the jury.” Id. (quoting Giddens v. Kansas City S. Ry.

Co., 29 S.W.3d 813, 821–22 (Mo. banc 2000)). “The amount of the verdict does not by itself

establish bias or passion and prejudice without showing some other error was committed during

the trial.” Stewart v. Partamian, 465 S.W.3d 51, 56 (Mo. banc 2015). In order to warrant remittitur

or new trial, the size of the verdict must be “so grossly excessive as to shock the conscience

because it is glaringly unwarranted.” Id. Appellate courts reviewing a jury’s verdict must recognize

“that the jury retains ‘virtually unfettered’ discretion in reaching its decision because there is a

‘large range between the damage extremes of inadequacy and excessiveness.’” Id. at 57 (quoting

Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 872 (Mo. banc 1993)). “An appellate court

views the evidence in the light most favorable to the verdict and disregards evidence to the

contrary.” Id.




                                                 19
       While the subject matter of this case might well ignite a passion in the common juror,

Hughes fails to demonstrate the jury was biased or prejudiced or that the trial court abused its

discretion in denying the motion for new trial or remittitur. On the contrary, the evidence suggests

a distinct lack of bias or prejudice. During closing argument, Doe’s counsel argued that Husband

had sex with Doe at least three times and that for this, coupled with the physical and emotional

damages sustained, the jury should award at least $4,000,000.00 in compensatory damages. The

jury rejected the argument, instead returning a verdict of $3,000,000.00 and then proceeded to find

Hughes only seventy percent at fault thereby reducing the award to $2,100,000.00 dollars. These

figures do not suggest bias or prejudice but rather careful consideration and calculation.

       Hughes argues that the amount awarded must necessarily be the result of misconduct

because there was insufficient evidence to otherwise support such an award. When considering the

amount of damages to award, a jury should consider the economic effects of the injury as well as

certain “intangible or non-economic damages relating to past and future pain, suffering, effect on

life-style, embarrassment, humiliation, and economic loss.” Id. The jury heard extensive testimony

regarding Doe, her general personality including social interactions with others, her distress during

medical examinations, details of undergoing a caesarian section and the accompanying recovery,

and more. Based on the foregoing, the damages awarded by the jury cannot be said to be without

basis or otherwise shocking to the conscience of the court. For this reason, Hughes’ seventh point

is denied.

                                      V. Punitive Damages

       Hughes’ fourth and eighth points concern the award of punitive damages. In her fourth

point, she claims the trial court erred in overruling her motion for a directed verdict and motion

for judgment notwithstanding the verdict on punitive damages because there was not clear and



                                                 20
convincing evidence that she showed complete indifference or conscious disregard for Doe. In her

eighth point, she claims the trial court erred in overruling her motion for a new trial or remittitur

as the punitive damages violated her due process rights.

       Punitive damages “are not generally recoverable in negligence actions because negligence,

a mere omission of the duty to exercise care, is the antithesis of willful or intentional conduct.”

Dodson v. Ferrara, 491 S.W.3d 542, 563 (Mo. banc 2016) (internal quotations omitted).

Therefore, in order to establish grounds for punitive damages, the plaintiff must show “clear and

convincing proof of a culpable mental state, either from a wanton, willful, or outrageous act, or

from reckless disregard for an act's consequences such that an evil motive may be inferred.” Diaz

v. Autozoners, LLC, 484 S.W.3d 64, 88 (Mo. App. W.D. 2015). “An act is committed wantonly if

the defendant knows at the time [she] engages in the wrongful act that the act was, in fact,

wrongful.” Turner v. Kansas City Public Schools, 488 S.W.3d 719, 725 (Mo. App. W.D. 2016).

Whether sufficient evidence exists to support an award of punitive damages is considered a

question of law, however, this court still views “the evidence and all reasonable inferences in the

light most favorable to submissibility and [disregards] all evidence and inferences which are

adverse thereto.” Diaz, 484 S.W.3d at 88.

       Hughes was aware that the PCS policies and requirements of Doe’s individual care plan

prohibited services being provided at her home or allowing third parties to transport Doe and

required her to be within arm’s length of Doe at all times and able to reach her within ten seconds.

When she permitted Husband to transport Doe, she was engaging in an act that she knew was

directly against her employer’s policies and categorically wrong. Hughes knew that these

requirements were in place for the protection and well-being of Doe, yet she nevertheless chose to

abandon these mandates and placed Doe at profound risk when she permitted Husband to transport



                                                 21
Doe. Further, Hughes falsified her observation notes on multiple occasions in an effort to conceal

her numerous violations and instances of improper conduct. Clear and convincing evidence of

these transgressions presented at trial was sufficient for the jury to find that Hughes’ conduct was

amply wanton, willful, and performed with conscious disregard to Doe’s well-being to justify the

imposition of punitive damages. Hughes’ fourth point is denied.

       The imposition of punitive damages that are grossly excessive may “enter the zone of

arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” Diaz, 484

S.W.3d at 90 (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)). To determine

whether an award is grossly excessive our courts consider three factors: “(1) the degree of

reprehensibility of the conduct at issue; (2) the ratio of actual harm to punitive damages; and (3)

the difference between the punitive damage award and the civil penalties authorized or imposed

in comparable cases.” Id. The first factor, arguably the most important, is determined by looking

at whether:

       [T]he harm caused was physical as opposed to economic; the tortious conduct
       evinced an indifference to or a reckless disregard of the health or safety of others;
       the target of the conduct had financial vulnerability; the conduct involved repeated
       actions or was an isolated incident; and the harm was the result of intentional
       malice, trickery, or deceit, or mere accident.

Estate of Overbey v. Chad Franklin Nat'l Auto Sales N., LLC, 361 S.W.3d 364, 373 (Mo. banc

2012) (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 409 (2003)). In the

present case, the harm caused was almost purely physical and emotional. In addition, Hughes’

willful and wanton disregard of PCS policies and Doe’s individual care plan evidenced her

indifference to or a reckless disregard for the safety and well-being of Doe. The decision to allow

Husband to transport Doe was not a single act but rather one that was repeated several times and

which resulted in Doe being exposed to harm on multiple occasions. Thus, there was sufficient



                                                22
evidence presented concerning the nature of Hughes’ conduct to sustain the award of punitive

damages in this case.

        The second factor can be somewhat more difficult to answer given that “the Supreme Court

has ‘consistently rejected the notion that the constitutional line is marked by a simple mathematical

formula, even one that compares actual and potential damages to the punitive award.’” Diaz, 484

S.W.3d at 90 (quoting Gore, 517 U.S. at 582). Here however the ratio is small, and as such, this

factor weighs against overturning the award.5 The final factor is inapposite, as there are no

comparable civil penalties that would apply in this case. Given these considerations, the punitive

damages that were awarded to Doe were not excessive and were not violative of Hughes’ due

process rights. Hughes’ eighth point is denied.

                                                   Conclusion

        The judgment of the trial court is affirmed.




                                                      __________________________________________
                                                      EDWARD R. ARDINI, JR., JUDGE

All concur.




5
 Higher punitive damage ratios have been upheld in other cases. See, e.g., Diaz, 484 S.W.3d at 91 (roughly 13:1 ratio
of punitive to compensatory damages upheld); Weaver v. African Methodist Episcopal Church, Inc., 54 S.W.3d 575,
589 (Mo. App. W.D. 2001) (66:1 ratio of punitive to compensatory damages upheld).

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