PER CURIAM.
John Doe (Plaintiff) filed a negligence action against Ozark Christian College (OCC) claiming that OCC negligently recommended a prospective employee (Employee) to the employer church (Employer), as a direct result of which, two years after he was hired, Employee injured Plaintiff. The trial court entered summary judgment in favor of OCC, concluding that Missouri has not defined or recognized a duty to not make a negligent recommendation to a prospective employer. Because Plaintiff has failed to demonstrate the existence of such a duty, we affirm the trial courts judgment.
Standard of Review
Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no dispute, a right to judgment as a matter of law. Rule 74.04. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993).
The summary judgment movant has the burden to establish a right to judgment as a matter of law flowing from facts about which there is no genuine dispute. Id. at 378. When the party moving for summary judgment is a defending party, as is the case here, the movants right to summary judgment can be established by showing one of the following:
(1) facts that negate any one of the claimants elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimants elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movants properly-pleaded affirmative defense.
Id. at 381.
Factual and Procedural Background
The facts set out in the parties statements of uncontroverted material facts establish that OCC is an independent college that prepares students for ministry and that Employee was a student there from 1982 to 1989. On occasion, individual churches that need to fill open positions, such as and including Employer, contact OCC for recommendations. However, the individual churches, and not OCC, make the ultimate hiring decisions. OCC and Employer are separate entities. In his second amended petition (petition), Plaintiff alleges that, based upon OCCs positive recommendation, Employer hired Employee in 2004. Plaintiff further alleged that, as a result of that employment, Employee sexually abused Plaintiff from 2006 through 2010.
OCC filed a motion for summary judgment. In that motion, OCC contended that assuming all factual allegations in Plaintiffs petition are true, Plaintiffs negligence claim nevertheless failed as a matter of law because, in giving an employment recommendation to Employer, OCC owed no duty to Plaintiff. The trial court agreed with OCC and entered judgment in its favor, concluding that:
The first question is what duty was owed by OCC to [Employer]? Is there a duty to not make a negligent recommendation to a prospective employer, whether it come[s] from another employer or an education institution? Plaintiff admits that [he] cannot find a Missouri case that holds such a duty exists. There are other states that have reached that conclusion, California, New Mexico and Texas, but the Missouri legislature has not defined such a cause of action and the Missouri Courts have not recognized one. This court declines to create such a cause of action now.
Plaintiff timely appeals the trial courts judgment.
Discussion
No Existing Common Law Duty Identified by Plaintiff
In any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendants breach proximately caused the plaintiffs injury. Wieland v. Owner-Operator Servs., Inc. , 540 S.W.3d 845, 848 (Mo. banc 2018).
Whether a duty exists is purely a question of law. Hoffman v. Union Elec. Co. , 176 S.W.3d 706, 708 (Mo. banc 2005) (quoting Lopez v. Three Rivers Elec. Coop., Inc. , 26 S.W.3d 151, 155 (Mo. banc 2000) ). A duty to exercise care can be imposed by a controlling statute or ordinance, assumed by contract, or imposed by common law under the circumstances of a given case. Bowan ex rel. Bowan v. Express Med. Transporters, Inc. , 135 S.W.3d 452, 457 (Mo. App. 2004) (citing Scheibel v. Hillis , 531 S.W.2d 285, 288 (Mo. banc 1976) ). Plaintiff proffers no statutory, ordinal, or contractual basis bearing upon the facts here supporting the existence of a duty upon OCC toward Plaintiff in making its employment recommendation of Employee to Employer.
Rather, conceding that OCC had no duty to provide an employment recommendation in the first instance, Plaintiff claims that
[c]onsistent with existing Missouri law and cases from other states, Missouri should recognize that once a defendant undertakes to provide a recommendation to a perspective [sic] employer, the defendant has a duty to provide a non-negligent recommendation if the defendant knows or has reason to know that a negligent recommendation involves an unreasonable risk of injury to the perspective [sic] employer or third-parties.
(Emphasis added). More precisely, Plaintiff claims that Missouris common law has always imposed this duty upon anyone who makes an employment recommendation and that all that remains is for this court to simply recognize that existing duty.
In resolving this claim, we initially note that the Missouri Court of Appeals is an error-correcting court, whereas the Supreme Court of Missouri is a law-declaring court. State v. Freeman , 269 S.W.3d 422, 429 (Mo. banc 2008) (Wolff, J., concurring). Accordingly, if a trial court erroneously fails to apply an existing common-law duty, it is within the purview of our court to correct that error. The declaration of a new common-law duty, however, is not within our purview but, rather, lies squarely within the law-declaring function of our supreme court. See id. at 429-30.
Plaintiffs argument implicitly concedes that no Missouri case has addressed or recognized a common-law duty of care upon a person or entity to either a prospective employer or a third party in making an employment recommendation. Rather, in the absence of such authority, Plaintiff offers four reasons as to why that common-law duty exists in Missouris common law waiting only for recognition:
• OCC assumed the duty and [s]uch duty is reflected in the language of section 324A of the Restatement (Second) of Torts.
• Section 311 of the Restatement (Second) of Torts imposes a duty and liability on OCC under the facts of this case for negligent misrepresentation involving risk of physical harm.
• Other states have recognized a duty in their common law to not provide a negligent recommendation.
• Public policy factors support imposition of a duty on OCC not to provide an inaccurate and incomplete recommendation in this case.
None of these reasons support the existence of a duty, but rather contemplate the declaration of a new common-law duty. Such a declaration is not within our power.
Section 324A of the Restatement (Second) of Torts (section 324A)
Plaintiff concedes that [OCC] did not have any duty to provide [Employees] name to [Employer] or to provide a recommendation regarding [Employee] when asked by [Employer]. Rather, Plaintiff asserts that OCCs gratuitous provision of an employment recommendation to Employer was an assumption of a duty to him to exercise reasonable care in doing so.
As Plaintiff asserts, Missouri courts have recognized that a duty may be assumed or undertaken, and when so assumed, a defendant must exercise reasonable care in carrying out the duty. Such a duty is reflected in the language of [section 324A]. Bowman v. McDonalds Corp. , 916 S.W.2d 270, 287 (Mo. App. 1995) (overruled on other grounds by Richardson v. QuikTrip Corp. , 81 S.W.3d 54, 63 n.9 (Mo. App. 2002) ) (internal citations omitted). We look to ... [section 324A] as the touchstone for whether a defendant has assumed a duty toward a third person. Berliner v. Milwaukee Elec. Tool Corp. , 501 S.W.3d 59, 67 (Mo. App. 2016).
Section 324A provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965).
The threshold application issue of section 324A is whether the defendant is [o]ne who undertakes ... to render services to another. Thus, whether OCC assumed an obligation or intended to render services for the benefit of Employer is an elemental fact (threshold elemental fact) that Plaintiff must plead and prove in order to cross the threshold for establishing OCCs section 324A duty of care to Plaintiff. See Smith v. Allendale Mut. Ins. Co ., 410 Mich. 685, 303 N.W.2d 702, 710 (1981) (absent evidence supporting a conclusion that the actor agreed or intended to provide services for the employers benefit, the threshold element of duty which in a case based upon § 324A flows from an undertaking to render services to another is lacking); Brown v. Michigan Millers Mut. Ins. Co., Inc. , 665 S.W.2d 630, 633 (Mo. App. 1983) ; Wurst v. Natl Oil & Supply Co., Inc. , 780 S.W.2d 97, 102 (Mo. App. 1989) ; Bowman , 916 S.W.2d at 287.
Here, however, Plaintiff did not plead this threshold elemental fact in his petition, which is fatal to his section 324A claim. See, e.g. , Wurst , 780 S.W.2d at 102. Indeed, the only somewhat related factual allegation made by Plaintiff in his petition is that [a]fter graduation, [OCCs] placement program assisted and guided [Employee] in his employment at various churches throughout the United States during years 1990-2004. This allegation, if true, supports the reasonable inference that OCCs recommendation to Employer was made to benefit its self-interests or those of its former student. It does not support an inference that OCC assumed an obligation or intended to benefit Employer when it gave that recommendation.
Section 311 of the Restatement (Second) of Torts (section 311)
Plaintiff next asserts that OCCs duty in his negligence claim is imposed by section 311 and cites Davis v. Bd. of Cnty. Commrs of Doña Ana Cnty. , 127 N.M. 785, 987 P.2d 1172, 1179 (N.M. App. 1999), in support of its application. Plaintiff fails, however, to cite any Missouri case that has adopted and applied the section 311 duty regarding negligent misrepresentations to impose a duty upon a defendant in a negligence action. In the absence of that authority, Plaintiff has failed to identify that such a section 311 duty exists in Missouri common law for his negligence claim.
Cases from Other States
Plaintiff next purports to identify an existing duty in Missouris common law for his negligence claim by asserting that other states have recognized in their common law a duty to not provide a negligent recommendation. In addition to Davis , supra , Plaintiff cites us to Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins , 926 S.W.2d 287 (Tex. 1996), and Randi W. v. Muroc Joint Unified Sch. Dist. , 14 Cal.4th 1066, 60 Cal.Rptr.2d 263, 929 P.2d 582 (1997), in support of what he generalizes as a duty not to provide a negligent recommendation.
Plaintiff has completely omitted, however, any citation to cases from other states rejecting the existence of such a duty. See, e.g. , Passmore v. Multi-Mgmt. Servs., Inc. , 810 N.E.2d 1022, 1028 (Ind. 2004) (adopting Section 310 of the Restatement (Second) of Torts for conscious misrepresentations in employment references, as adopted and applied in Randi W. , but declining to adopt section 311 for negligent misrepresentations in employment references); Johnson v. United Parcel Serv., Inc. , 326 S.W.3d 812, 817 (Ky. Ct. App. 2010) (finding that former employers recommendation of employee to prospective employer was not an undertaking to render services (as the term is contemplated by the Restatement (Second) of Torts) and declining to expand existing law on negligent misrepresentation to encompass references given by former employers); Richland Sch. Dist. v. Mabton Sch. Dist. , 111 Wash.App. 377, 45 P.3d 580, 587 (2002) (declining to adopt section 311 as a basis for negligent misrepresentation because Washington had never adopted it and no published case had discussed its applicability to Washington common law and declining to follow Davis and Randi W. ); Neptuno Treuhand-Und Verwaltungsgesellschaft Mbh v. Arbor , 295 Ill.App.3d 567, 229 Ill.Dec. 823, 692 N.E.2d 812, 820 (1998) (holding that Illinois has not recognized a cause of action for negligent referral and declining to follow Golden Spread and Randi W. ); Cohen v. Wales , 133 A.D.2d 94, 518 N.Y.S.2d 633 (1987) (The mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring[.]).
In light of these contrary cases from Indiana, Kentucky, Washington, Illinois, and New York, Plaintiffs mere citation to supporting cases from New Mexico, Texas, and California fails to analytically support or persuade us that such a duty, as Plaintiff suggests, exists in Missouris common law.
Public Policy Factors
Plaintiffs remaining argument is that public policy factors support a finding that [OCC] had a duty not to provide a negligent recommendation regarding [Employee]. Plaintiff relies upon Hoovers Dairy, Inc. v. Mid-Am. Dairymen, Inc./Special Products, Inc. , 700 S.W.2d 426 (Mo. banc 1985), for two propositions. First, [i]t is generally stated that foreseeability that some injury might result from the act complained of normally serves as the paramount factor in determining the existence of a duty. Id. at 431. Second,
[t]he 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 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-the others.
Id. at 432. We have no quarrel with either proposition, nor with our supreme court, in its law-declaring function, see Freeman , 269 S.W.3d at 429, considering, analyzing, and weighing these public policy factors or any other policy factors it deems appropriate to declare the existence of a duty heretofore not found in Missouris common law. Plaintiff has failed to direct us to any case, and our research has found none, where our supreme court has declared the existence of any duty arising from making an employment recommendation. In the absence of such a declaration, considering and weighing various public policy factors, standing alone, offers this error-correcting court, see Freeman , 269 S.W.3d at 429, no rationale upon which to find trial court error in granting summary judgment on the basis that such a duty does not currently exist in Missouris common law.
Conclusion as to Existence of a Duty
As in the trial court, based upon the summary judgment record, Plaintiff has failed to demonstrate the existence of a duty owed by OCC to Plaintiff under Missouris common law and, therefore, the trial courts entry of summary judgment in favor of OCC on that basis was not erroneous. Plaintiffs first point is denied.
Causation Challenge is Moot
Plaintiffs second and final point contends that the trial court erred in granting summary judgment on the basis that [Employee]s actions were an intervening and superseding cause of Plaintiffs injuries[.] Having concluded that Plaintiff has failed to demonstrate that OCC owed him a duty of care in making the employment recommendation, a necessary element to sustain Plaintiffs negligence claim, we need not review whether summary judgment was also appropriate as to the causation element of such a claim. See State v. Kinkead , 983 S.W.2d 518, 520 (Mo. banc 1998) (Issues that are not essential to a disposition of the case should not be addressed.).
Decision
The trial courts judgment is affirmed.
CONCURRING OPINION
Plaintiffs second amended petition contained the following six counts against OCC: Negligent Failure to Supervise Students/Ministers (count 1), Negligent Infliction of Emotional Distress (count 2), Negligence Per Se (count 3), Negligent Misrepresentation Regarding [Employee] (count 4), Negligence (count 5), and Intentional Misrepresentation Regarding [Employee] (count 6). On appeal, Plaintiff abandons counts 1-4 and 6 by limiting his arguments in his points relied on, reply brief, and oral argument to his common-law negligence claim in count 5 of his petition.
Rule 74.04(c)(2) provides that a response to a motion for summary judgment may also set forth additional material facts that remain in dispute [.] (Emphasis added). Instead, Plaintiff chose to set forth in his response a statement of additional uncontroverted material facts. (Emphasis added). Plaintiff offers no explanation as to how such a statement complies with the Rule 74.04 mandated summary judgment process.
OCC also contended that assuming those same facts and further assuming a duty did exist, Plaintiffs negligence claim still failed because Employees criminal acts were the intervening and superseding cause of Plaintiffs injuries. We do not reach this issue.
Because Plaintiffs omission of the threshold elemental fact defeats his section 324A claim, we do not address whether the facts of this case satisfy any other section 324A elemental facts.
Section 311 entitled Negligent Misrepresentation Involving Risk of Physical Harm provides:
(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results
(a) to the other, or
(b) to such third persons as the actor should expect to be put in peril by the action taken.
(2) Such negligence may consist of failure to exercise reasonable care
(a) in ascertaining the accuracy of the information, or
(b) in the manner in which it is communicated.
Restatement (Second) of Torts § 311 (1965).
Davis sued the county for negligent misrepresentation. Davis , 987 P.2d at 1176. Nothing in Davis suggests that its acceptance of section 311 to impose a duty in a negligent misrepresentation action upon a previous employer in making employment references has any applicability to a negligence claim, as Plaintiff is asserting on appeal here. See footnote 1. Moreover, while Davis recognized a negligent misrepresentation cause of action in this context on the basis of section 311 in New Mexico, the Kentucky Court of Appeals refused to recognize it in its state because there is no support for this cause of action in the employee reference context in existing Kentucky case law. As aforestated, we decline to expand our existing law on negligent misrepresentation to encompass references given by former employers where there has ... not previously been a cause of action in this context. Johnson , 326 S.W.3d at 817.
As previously noted in footnote 6, Plaintiff conflates the duty in a negligence claim with the duty in a negligent misrepresentation claim, and he does so here in his cited cases without any explanation or citation to authority that they are equivalent duties.