Madden v. C & K Barbecue Carryout, Inc. , 1988 Mo. LEXIS 81 ( 1988 )

BILLINGS, Chief Justice.

These two cases have been consolidated for purposes of appeal. In Madden v. C & K Barbecue Carryout, Inc., plaintiff’s cause of action was dismissed for failure to state a claim. In Decker v. Gramex Corporation, plaintiffs’ case was dismissed on motion for summary judgment. The Court concludes that the petition in Madden was sufficient to withstand a motion to dismiss, and that the affidavits in the Decker case, broadly construed, demonstrate the presence of a fact issue of negligence. Reversed and remanded.

THE MADDEN CASE

At approximately 7:00 p.m. on December 15, 1984 the plaintiff Opal Madden drove into the parking lot of C & K Barbecue to purchase food. C & K Barbecue is located in the City of St. Louis. Upon leaving the restaurant, Madden was approached by an unknown male requesting a jump start for his car or a ride to his home. For several minutes Madden tried to evade this man, but he displayed a gun, forced his way into Madden’s car, and kidnapped her. The pair drove to another location where Madden’s unknown assailant physically and sexually assaulted her.

Plaintiff brought a negligence action against C & K Barbecue in the Circuit Court of the City of St. Louis seeking damages for personal injuries sustained as a result of the assault and kidnapping. She contended defendant failed to provide adequate security to protect its patrons and failed to warn business invitees of the danger present on the premises. In her first amended petition plaintiff alleged C & K Barbecue was the scene of numerous violent crimes over the three year period immediately preceding this assault. These crimes included six armed robberies, six strong arm robberies, one assault, and one purse snatching. Plaintiff’s amended petition, however, was dismissed by the trial court for failure to state a claim.

THE DECKER CASE

On December 14, 1982 Gary and Donna Decker were Christmas shopping at a shopping center in north St. Louis County containing a Schnucks market and a Grandpa Pigeon’s department store. Upon returning to their car, they were forcibly abducted by two unknown assailants in the shopping center parking lot. The Deckers were both murdered after leaving the shopping center with their assailants. Donna Decker was raped and sodomized before she was killed. Both bodies were dumped in a vacant field in East St. Louis.

The son and the parents of Gary and Donna Decker filed a suit for wrongful death against Schnucks Twenty-Five, Inc. and Gramex Corporation, the owners and operators of Schnucks and Grandpa Pigeon’s. They alleged defendants were negligent for failing to provide adequate security in the parking lot area, for failing to protect Gary and Donna Decker from criminal assault, abduction, and murder, and for failing to warn the Deckers of the danger of being abducted, robbed, or killed while walking in the parking lot.

Plaintiffs pleaded a history of prior crime on or about the premises of the defendants prior to the Decker murders. These crimes included one armed robbery, one purse snatching, and 45 assorted thefts. Based on these facts, plaintiffs contended that the defendants owed Gary and Donna Decker, as business invitees, a duty to exercise reasonable care for their safety while on the defendant’s premises.

Defendants filed a motion for summary judgment on the ground that Missouri law did not recognize a duty on the part of a business owner to protect his patrons against the criminal conduct of unknown third persons. Plaintiffs filed an affidavit in opposition to summary judgment. In this, William J. Cira, police chief of Belle-fontaine, stated that he reviewed the records of crimes committed on the premises of Grandpa Pigeon’s and Schnucks during the three years preceding the Decker murders. According to Cira, these crimes included four armed robberies, three purse snatchings, robbery second degree, attempted armed robbery, assault, assault with a deadly weapon, flourishing a deadly weapon, stealing over purse snatching [sic], and attempted purse snatching. The trial court sustained the motion for summary judgment.

I.

In reviewing a motion to dismiss for failure to state a claim, this Court accepts as true all facts properly pleaded and all reasonable inferences therefrom. Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. banc 1983). A petition is not to be dismissed for failure to state a claim if any set of facts is asserted which, if proved, would entitle the plaintiff to relief. White v. Mulvania, 575 S.W.2d 184, 188 (Mo. banc 1978).

On review of defendants’ motion for summary judgment, this Court must view the record in the light most favorable to the plaintiffs, according to plaintiffs all reasonable inferences which may be drawn from the evidence. Summary judgment is inappropriate unless the defendants have shown by unassailable proof that they are entitled to judgment as a matter of law. The burden is on the defendants to demonstrate that there are no genuine issues of material fact. A genuine issue of fact exists when there is the slightest doubt about a fact. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987).

II.

A petition seeking damages for negligence must allege ultimate facts which, if proven, show: 1) the existence of a duty on the part of the defendant to protect the plaintiff from injury, 2) breach of that duty, 3) causation, and 4) injury to the plaintiff. Virginia D. v. Madesco Investment Corporation, 648 S.W.2d 881, 886 (Mo. banc 1983); Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976). Generally, there is no duty to protect business invitees from the criminal acts of unknown third persons. Meadows v. Friedman Railroad Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983). However, a duty to exercise care may be imposed by common law under the facts and circumstances of a given case. Scheibel v. Hillis, 531 S.W.2d at 288.

Section 34Jf of the Restatement (Second) of Torts recognizes a duty on the part of a possessor of land who holds it open to the public for entry for business purposes to protect members of the public while they are on the land from the intentionally harmful acts of third persons or in the alternative to warn visitors so that they can avoid the harm. Under the restatement approach, this duty may arise when the landowner knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of visitors, even if the landowner has no reason to expect harmful conduct on the part of any particular individual. Restatement (Second) of Torts, Section 3⅛⅛, Comment f

Several cases decided by the court of appeals have recognized a duty on the part of business owners to protect their invitees from the criminal activities of unknown third persons under certain special circumstances. See Faheen v. City Parking Corp, 734 S.W.2d 270, 272 (Mo.App.1987); Brown v. National Supermarkets, Inc., 679 S.W.2d 307, 309 (Mo.App.1984); and Nappier v. Kincade, 666 S.W.2d 858, 861 (Mo.App.1984). In Brown, the court held that sixteen reported robberies involving a firearm, seven reported strong arm robberies, and 136 other reported crimes allegedly occurring on the defendant’s premises over a two year period constituted special facts giving rise to a duty to protect patrons from the criminal assaults of unknown third parties. Brown, 679 S.W.2d at 309-10.

In Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881 (Mo. banc 1983), this Court recognized a duty on the part of a hotel owner to protect hotel guests from the criminal acts of unknown third persons. The recognition of a duty in Virginia D. was based in part on the existence of a special relationship between the plaintiff and the defendant, i.e., innkeeper-guest, but it was also based in part on the existence of special facts, i.e., evidence of prior criminal incidents sufficient to alert management to the possibility that its patrons might be in danger. Id. at 888.

Consistent with the holding in Virginia D., with the court of appeals decision in Brown, and with the rule established by the Restatement of Torts,¹ the Court recognizes that business owners may be under a duty to protect their invitees from the criminal attacks of unknown third persons depending upon the facts and circumstances of a given case. The touchstone for the creation of a duty is foreseeability. A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Lowery v. Horvath, 689 S.W.2d 625, 627 (Mo. banc 1985).

III.

In the Madden case, the plaintiff alleged in her amended petition that the defendant’s restaurant was the scene of numerous violent crimes against persons during the three year period immediately preceding this incident. These crimes included six armed robberies, six strong arm robberies, one assault and one purse snatching. These facts, if established at trial, are sufficient to put the defendant on notice to the possibility that his invitees may be exposed to danger from the criminal attacks of unknown third persons, including the danger of kidnapping and assault.² Since the plaintiff alleged facts which, if proven, are sufficient to establish a duty of care, the trial court erred in dismissing her first amended petition.

In the Decker case, plaintiffs pleaded a history of prior crimes occurring on the defendants’ property. These crimes included one armed robbery, one purse snatching, and multiple thefts. These allegations, by themselves, even if established at trial, might not be sufficient to establish a duty of care. However, plaintiffs also filed an affidavit in opposition to summary judgment, citing a lengthy list of prior crimes, many violent, occurring at the shopping center over a three year period. The list included four armed robberies, assault, assault with a deadly weapon, and flourishing a deadly weapon. Defendants contend that this affidavit was improper under Rule 7J¡..0b(e) because the crimes listed were not based on the affiant’s personal knowledge. Although the affiant stated that he reviewed the Bellefontaine police records to locate information concerning prior crimes occurring at the defendants’ shopping center, he also stated that the facts listed in the affidavit were based on personal knowledge. Nothing in defendants’ motion for summary judgment contradicts this assertion, and there is nothing in the record indicating that the volume of police records was so great that the affiant could not have personal knowledge of the prior crimes discussed. For purposes of summary judgment the affiant’s statements must be accepted as true. Shaw v. Clough, 597 S.W.2d 212, 218 (Mo.App.1980).

The facts alleged in the affidavit, if established at trial, are sufficient to establish a duty of care on the part of defendants to take reasonable measures to protect their invitees from third party criminal attacks. Whether the defendants satisfied this duty of care is a question for a jury. On remand, the trial court should give plaintiffs the opportunity to amend their petition to include the facts alleged in the affidavit. Feinstein v. McGuire, 297 S.W.2d 513, 518 (Mo.1957); Nappier v. Kincade, 666 S.W.2d at 862.

Defendant Schnucks also contends that it owed no duty to the Deckers because the Deckers were not business invitees of Schnucks and because Schnucks did not lease or control the parking lot where the Deckers were abducted. Schnucks, however, did not establish these facts by unassailable proof. Plaintiffs properly pleaded that the Deckers were customers and invitees of Schnucks and that Schnucks leased and controlled the parking lot at the shopping center. Based on the record presented, genuine issues of material fact remain on these questions precluding a grant of summary judgment. Gast v. Ebert, 739 S.W.2d at 547.

Reversed and remanded for further proceedings.

BLACKMAR, RENDLEN and HIGGINS, JJ., concur. ROBERTSON, J., concurs in result in separate opinion filed. DONNELLY, J., dissents in separate opinion filed. WELLIVER, J., dissents in separate opinion filed and concurs in separate dissenting opinion of DONNELLY, J.

1 . See also Galloway v. Bankers Trust Co., 420 N.W.2d 437 (Iowa 1988), where the court held that evidence of a general history of criminal activity was sufficient to preclude a grant of summary judgment in favor of a shopping mall in an action brought against the mall for failing to protect plaintiff from a homosexual rape.

2 . Defendants in both cases cite Faheen v. City Parking Corp., 734 S.W.2d 270, 274 (Mo.App.1987), for the proposition that the prior crimes in these cases were not sufficiently similar to the crimes at issue to put the defendants on notice that the crimes at issue might occur. Faheen held that prior reported crimes of arson, robbery, assault, burglary, and stealing were not sufficient to put defendants on notice that a car bombing would take place in their parking garage. Faheen is distinguishable, however, by the fact that the victim in Faheen was murdered by a hired assassin. An assassination by car bombing may not be reasonably foreseeable to a business owner based on prior incidents of violent street crime, but abduction, sexual assault, and even murder committed by use of a firearm should be foreseeable based on such street crimes. ¿