A Plaintiff's Approach to the Preparation of Premises Liability Cases Based on the Criminal Acts of Third Persons

by William Edward Taylor and Joseph M. Taylor

Introduction

William Corrigan and Timothy Van Ronzelen wrote an article on premises liability in a recent issue of this journal.1 The Corrigan and Van Ronzelen article presents a defense interpretation of the principal cases in the area of premises liability law. Typically, the defense bar adheres to an unduly restrictive and inaccurate reading of these cases. The cases have created a great deal of confusion among both plaintiff and defense attorneys. The confusion lies principally in the area of duty: the circumstances under which landowners, landlords, innkeepers and others will be held to an obligation to exercise due care to protect certain people from the criminal acts of third persons.

The manner in which duty is established varies, depending on the type of case. However, courts tend to focus on the foreseeability of the crime in question when they decide whether a duty to protect arises. Foreseeability is a concept which evades precise definition. But the defense bar tends to narrow the concept by arguing that a crime is foreseeable only where numerous and frequent prior violent crimes of a similar nature have occurred on defendant's premises.

Prior violent crime is not the only phenomenon that makes a crime foreseeable. Case law allows for, and even mandates, a far more expansive use of many indicators of foreseeability. Evidence of prior violent crime is probably the simplest means of establishing duty, but additional means of establishing duty and demonstrating the level of care owed (once duty is established) are available to attorneys willing to try new approaches in their trial presentations.

Before the concept of duty can be fully understood, plaintiffs' attorneys must understand the points of convergence and divergence between Virginia D. v. Madesco Investment Corp.2 and Madden v. C & K Barbecue Carryout, Inc.3 In Virginia D., a patron of a restaurant in a hotel lobby was raped in a ladies room located in a remote corner of a downstairs lobby. In Madden, a customer of a fast food restaurant was kidnapped from the parking lot and raped at another location.

Subsequent to Virginia D. and Madden, the appellate courts have attempted to further clarify the circumstances under which landowners will be held to a duty to protect their patrons from the criminal acts of third persons. Virginia D. and Madden have not fully defined the complex issue of duty in premises liability law. Still, these two important opinions provide the cornerstone of Missouri premises liability law. Attorneys who expect to prosecute or defend such cases must be completely familiar with both, as well as subsequent opinions that further refine the duty issue.

Using the same general format as Corrigan and Van Ronzelen, our article offers practical and academic suggestions on such issues as the use of prior crimes evidence, discovery and presentation of other indicators of foreseeability, pleading of a variety of types of premises liability cases, and the creative use of evidence.

To end the needless confusion surrounding duty, the authors propose a judicial resolution to the troubling duty question. The duty to take reasonable steps to make one's premises safe from the criminal acts of third persons should be imposed on all premises owners and managers whose property is held open to the public. An across the board imposition of duty would promote judicial efficiency and would guide property owners and their attorneys in managing of their premises. If the issue of duty is confusing to trained attorneys, imagine the confusion it must create for property owners attending to their premises.

II. General Rule

Ancient law refused to hold premises owners liable for harm which befell their invitees as a result of the criminal acts f third persons.4 Madden, which strives to define the circumstances under which a landowner may be held liable to a plaintiff for a crime-inflicted injury on its premises, is not the first case, even in Missouri, to do so. The landowner liability concept is not novel. Corrigan and Van Ronzelen, along with the majority of the defense bar, see something insidious about a doctrine which requires landowners to secure their property. This apprehension is not logical.

More than 25 years ago, the United States Circuit Court for the D.C. Circuit not only recognized such a cause of action, but also stated clearly that, at least in the landlord-tenant arena, a landowner has " . . . a duty of protection . . . to the tenant in an urban multiple unit apartment dwelling."5

As early as 1976, the Supreme Court of Missouri held that a duty to protect one's invitees attaches when a possessor of land has reason to know an invitee may be in danger as a result of a particular individual's presence.6 In Irby v. St. Louis County Cab Co., the Missouri Court of Appeals addressed a 1977 wrongful death case in which a plaintiff sued a taxicab company for the wrongful death of her husband, a driver. The suit alleged that the cab company had negligently dispatched the plaintiff's husband into a "high crime" area, and that his death at the hands of a violent criminal was a direct result of the negligence.7 The court affirmed the dismissal of the action, but stated that " a duty to exercise care may . . . be imposed by common law under the circumstances of a given case."8 "It is true that in some circumstances, one may be charged with a duty of care to take precautions to protect others from the intentional criminal acts or reckless conduct of third persons."9 "Such a duty arises . . . when one should realize through special facts within his knowledge or a special relationship that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another."10

Irby made no mention of prior violent crimes. The court simply stated that negligence must be shown by proving "foreseeability or reasonable anticipation that harm or injury is a likely result of acts or omissions . . ."11

Although a seminal case in Missouri jurisprudence, Madden merely refined well established law in holding that the plaintiff had stated a cause of action by listing numerous prior crimes in her petition as a basis for recognizing the defendant's duty to protect her from her kidnapper. Nowhere in Madden did Judge Billings say that the absence of prior crimes on the premises was fatal to establishing the defendant's duty to protect his or her patrons. The opinion merely explains, as does Virginia D., that prior crimes are excellent - but not the only - indicators of foreseeability.

There are many, even more compelling, indicators of foreseeability. Consider the following example, presented by the plaintiff-appellant at the oral argument before the Supreme Court in Madden: A theater owner was hosting an audience of children at a cartoon festival. During the presentation, an anonymous telephone call was received at the theater office. The caller stated a bomb was hidden in the theater and would detonate before the end of the show. Convinced the call was a prank and wanting to keep the ticket money, the theater owner disregarded the call. One hour later, the bomb exploded, killing and wounding many children. In its 30 years of operation, there had never been a crime on the theater's premises. Under an analysis that requires proof of recent violent crimes on the premises, the theater owner would have had no duty to react to the bomb threat.

Such a holding would have been ridiculous. The theater owner's behavior went beyond mere negligence. And yet, using the narrow Madden analysis advocated by Corrigan and Van Ronzelen, just such a holding could have been the fate of the plaintiffs in the theater hypothetical. No Missouri court could have intended such an injustice and even pre-Madden case law would have imposed a duty on the defendant theater owner. The interpretation of Madden espousd by the majority of the defense bar claims that, absent a special relationship between plaintiff and defendant [see Section III, below], dismissal would be required in a case where no prior violent crimes had been alleged and proved. Madden never said that!

Neither Virginia D. nor Madden delin-eated all the circumstances under which the courts will impose a duty. Although both cases discuss the significance of prior violent crimes on defendants' premises, neither explained that other "special facts and circumstances" could establish duty. As a result, many incorrectly assumed that prior violent crime must be shown before duty would attach. Defense attorneys saw Virginia D. and Madden as tools to restrict, rather than expand, landowner liability. Through a narrow reading of these two cases, defense attorneys argue that landowners are to be permitted several free bites before being held liable for the criminal acts of third persons on their premises.

In analyzing the duty question in Virginia D., Judge Blackmar stated: "There is no requirement that there be at least one mugging or rape before the innkeeper is obliged to consider the possibility. The duty is one of the appropriate degree of care under the circumstances."12 In response to this comparison, seasoned defense counsel jump to their feet and shout, "But Virginia D. is a hotel case." The inference is that if the court had analyzed the Madden facts under innkeeper-guest theory, the innkeeper would have been required to take reasonable steps to protect the plaintiff, even in the absence of prior violent crime on the defendant's premises. Without that special relationship, says the defense bar, the absence of prior crime on the premises would have been fatal to the plaintiff's case. If the Madden duty had been predicated on grounds other than prior violent crimes on the premises, the Supreme Court still could have followed Judge Blackmar's reasoning in Virginia D. and reversed the lower court dismissal by approving whatever special circumstances had been presented to it. That is, if the basis of the duty had been such that the defendant barbecue shop had reason to know of the foreseeability of danger to Ms. Madden, the outcome of Madden would have been the same, so long as some other special circumstance had been shown.

In the Madden oral argument, one of the judges, failing to see the similarity between Virginia D. and Madden, also protested that Virginia D. was a hotel case. Counsel for plaintiff-appellant responded that Virginia D. had not been pleaded as a special relationship case, but rather was submitted under ordinary negligence. The Supreme Court's Virginia D. ruling was grounded in ordinary care, even though the rape occurred in a hotel setting.13 Judge Blackmar (author of Virginia D.) smiled broadly at the comment and the dismissal of Ms. Madden's case was reversed. The significance of that smile may never be known.

Based on the Virginia D. holding, attorneys around the United States have approached the authors and praised Missouri for being a "totality of the circumstances" state [see Section 4 (C), below]. Everyone seems convinced that Missouri has adopted this doctrine except the Missouri courts and bar.

There are many exceptions to the general rule that persons should not be required to protect others from the criminal acts of third parties. These exceptions evolved as our judicial system realized that landowners are often in a better position than police departments to prevent certain kinds of crime. The major categories of these exceptions are discussed in the following sections.

In summary, there is nothing new or innovative about the concept that, under the appropriate circumstances, a landowner may be held to a duty to take reasonable steps to protect its invitees, licensees, tenants or even trespassers from the criminal acts of third persons.

III. Special Relationship Exception

The special relationship exception to the general "no duty" rule frees plaintiffs from the burden of proving prior violent crimes on an innkeeper's premises. Virginia D. provides the fullest exposition of this exception. The duty is imposed by law as a consequence of the special relationship between an innkeeper and its guest. Special relationships may also include: school-student; common carrier-passenger; hospital-patient; and any other relationship in which someone surrenders himself or herself to the care of another. In such a special relationship situation, the defendant must take reasonable steps to protect those who have placed themselves in positions of dependence.

Despite the special relationship, plaintiffs must still prove the foreseeability of the crime in question. As in any other negligence case, a plaintiff must prove the existence of a duty on the part of the defendant, breach of that duty and proximately caused injury to the plaintiff. Foreseeability is an element of breach. The case law across the nation uniformly holds that any duty to protect invitees from the criminal acts of third persons applies only to foreseeable criminal acts. Therefore, plaintiffs must present facts and circumstances that will convince a jury that the crime causing plaintiff's injury was foreseeable.

Nothing in Virginia D. prevented the plaintiff, in her case in chief, from presenting evidence of numerous crimes on defendant's premises, both violent and non-violent. However, the purpose of such key evidence would have been to prove breach, rather than to establish duty. Such evidence is invaluable to the jury that must determine negligence.

Plaintiffs are free to present evidence of other facts and circumstances, even in innkeeper-guest cases, that establish the foreseeability of the crime that caused a plaintiff's injury. By way of example, proof of unheeded complaints of bad lighting or deficient security practices is devastating to the defense. Proof that certain areas on a defendant's premises offer excellent hiding places for criminals is great evidence, assuming the criminal actually used one of those hiding places in committing the crime in question. Once a plaintiff proves that a door or window lock was negligently installed by an innkeeper, landlord or any other landowner, a submissible case is virtually ensured if a criminal defeated the lock to gain entry and injure a plaintiff. The list is infinite and is not confined to special relationship cases.

A misreading of the case law as it pertains to duty can easily cause a plaintiff's attorney to neglect critical evidence. Prior crime evidence can be used to establish duty in a non-special relationship case, but can also be used to demonstrate negligence (breach) by the defendant in any premises liability scenario.

IV. Special Facts and Circumstances Exception

The major exception to the general no duty rule is the special facts and circumstances exception. This exception creates most of the confusion because it deals with creation of duty through proof of unusual phenomena that make a crime foreseeable. This exception is often called the "prior violent crimes exception," but this is a misnomer that typifies the myopic view of defense counsel.

This section explores a variety of methods of establishing duty in premises liability cases where prior violent crime is minimal or nonexistent. The cases cited in this article, particularly Madden, state clearly that where frequent and recent prior violent crime is present on a defendant's premises, a duty exists. Under the terms of this duty, a defendant must take reasonable steps to protect its invitees from the criminal acts of third persons. But nowhere do the cases say prior violent crime is the only special fact or circumstance.

A competent plaintiff's attorney should not shy away from a case where no prior crimes on the defendant's premises can be identified. So long as the foreseeability of the crime that injured a plaintiff can be reasonably established, a solid argument can be made for the submissibility of the case. Too often good lawyers reject meritorious cases simply because their reading of the law was unnecessarily restrictive.

We encourage plaintiffs' counsel to explore other ways of establishing liability and not to dwell on the presence or absence of prior crimes on defendants' premises. One should, however, rely on the more conservative paths to get to a jury whenever possible. If you can establish a special relationship, do so. If the traditional special facts and circumstances of prior violent crime are present, flaunt them. Nonetheless, trial counsel must be prepared to present to a jury any available evidence that will demonstrate that the defendant should have known the plaintiff was likely to be injured, yet failed to take reasonable steps to protect him or her. Reason dictates that courts will clarify their earlier holdings and state the grounds under which duty will be recognized when presented with appropriate fact situations.

There are two major classifications within the special facts and circumstances exception. The first involves injuries at the hands of persons with known dangerous proclivities. The second classification is the more common "prior violent crimes" exception.

A. Known Third Person

Corrigan and Van Ronzelen correctly explained the known third person exception, the most straightforward of all theories of landowner liability. The existing case law, highlighted by Nappier v. Kincade, is simple and uncharacteristically clear.14 In Nappier, a customer of a fast food restaurant was kicked and beaten to death by another customer. Although the plaintiff's dismissal was affirmed, the court delivered a first-rate exposition of the known third person rule. When a property owner has reason to know of a particular person's dangerous tendencies, yet takes no action to prevent a violent act, a duty arises as a direct function of the knowledge. Proof of prior violent crimes is not required in this instance. The defendant's knowledge of the assailant's dangerous nature is a special fact or circumstance, thus giving rise to the duty. Hence, where an employee of a nightclub has shown his dangerous propensities by assaulting or threatening customers, the employer will be held to a duty of due care to dismiss the dangerous employee or increase his supervision in order to prevent injury.

B. Prior Violent Crimes/Use of Non-Violent Crimes

Defense counsel consistently overstate the necessity of proving prior violent crime in order to establish duty. Faheen v. City Parking Corp.15 is the case defense counsel most often advance to support that argument. A superficial reading of Faheen can give the incorrect impression that only proof of recent and numerous violent crimes essentially similar to the crime forming the basis of the plaintiff's claim, can create a landowner's duty to protect. This reasoning is sound, so long as we agree that the indicator of foreseeability offered by plaintiff's counsel is a significant past history of violent crime. As discussed above, there are alternative avenues for proving the foreseeability of the crime in question and the resultant creation of a defendant's duty.

However, when such a criminal history does exist on a defendant's premises, plaintiff's counsel should use it effectively. The pleading and proof of such a criminal history will take the plaintiff to the very door of the jury room. At that point, only the proximate causation barrier stands between the plaintiff and a submissible case.

C. Totality of the Circumstances

Some states have adopted a "totality of the circumstances" doctrine for the establishment of duty. Under this doctrine, the courts will look to all the circumstances surrounding a crime-inflicted injury in determining whether or not a duty should be placed on a defendant landowner. Such factors as whether or not the situs is in a "high crime" area, not currently applicable in Missouri, are taken into account under this doctrine. The advantage of such a reasoned approach is that no one special fact or circumstance can be singled out in determining liability.

A compelling case can be made that Virginia D. at least suggested Missouri should be a "totality of the circumstance" jurisdiction.16 As pointed out by Corrigan and Van Ronzelen, California has abandoned this doctrine.17 Kansas, on the other hand, has adopted it.18

If Virginia D. was ambiguous in its suggestion that Missouri should adopt a totality of the circumstances approach, no Missouri case after Virginia D. specifically refutes the merit of the doctrine. The Missouri appellate courts should be presented with a case that provides the opportunity to join our sister state of Kansas in her reasonable approach to premises liability.

D. Negligence Per Se for Liquor Serving Establishments

Many cases arise from bar or nightclub altercations and may involve new or relatively crime-free establishments. In addition, the premises owner or manager may have had no way of knowing the assailant constituted a danger to patrons. The case law is not particularly instructive in such situations and may leave plaintiff's counsel with the incorrect impression that such a case lacks merit.

If a potential client has been assaulted in an establishment that holds a liquor license, counsel should research state and local liquor laws before rejecting the case. If it can be shown that bar personnel violated statutes, ordinances or other regulations designed to protect patrons, a theory of negligence per se should be considered.

There is no known applicable case law on this specific subject, but the elements of a prima facie case of negligence per se seem to be: (1) The defendant owned or operated the establishment in question; (2) Defendant held a liquor license; (3) Plaintiff was a business invitee of the defendant; (4) Defendant's personnel violated a statute, ordinance or other liquor licensing regulation; and (5) Plaintiff was a member of the class of persons intended to be protected by the statute, ordinance or other regulation.19

The authors currently have cases in suit that may test the judicial waters for this type of litigation. Any attorney going forward on this theory must be prepared to whittle out new exceptions to the general no duty rule, rather than be content to find cases that fit neatly in niches already hollowed out by others. The theory represents a new thrust and must be considered experimental.

Examples of the manner in which such a cause of action could be pleaded are:

********************

. . . Defendant was under a duty, imposed by City of St. Louis, Mo., Ordinance 61289, Ch. 14.05, § 14.05, § 14.05.090, to " . . . immediately suppress any violent quarrel, disorder, brawl, fight or other improper unlawful conduct of any person upon the licensed premises

. . . "

. . . Defendant was under a duty, imposed by City of St. Louis, Mo., Ordinance 61289, Ch. 14.05, § 14.05, § 14.05.090 to immediately report the plaintiff's assault to the police department, state liquor control department and the Excise Commissioner.

. . . Plaintiff was among the class of persons intended to be protected by City of St. Louis, Mo., Ordinance 61289, Ch. 14.05, § 14.05, § 14.05.090.

. . . Defendant negligently failed to obey the dictates of City of St. Louis, Mo., Ordinance 61289, Ch. 14.05, § 14.05, § 14.05.090 to " . . . immediately suppress any violent quarrel, disorder, brawl, fight or other improper unlawful conduct of any person upon the licensed premises

. . ." and thereby committed negligence per se.

. . . Defendant negligently failed to obey the dictates of City of St. Louis, Mo., Ordinance 61289, Ch. 14.05, § 14.05, § 14.05.090 to immediately report the plaintiff's assault to the police department, tate liquor control department and the Excise Commissioner and thereby committed negligence per se.

********************

Under this approach there is absolutely no need to plead or prove the existence of prior violent crime. The duty is established statutorily and the negligence is established through the simple proof of a statutory violation and resultant injury to the plaintiff. Keep in mind, however, that this theory has only recently been applied to premises liability cases and the authors cannot guarantee the new approach will be fondly received by the courts.

V. Voluntary Assumption of Duty

A duty may be voluntarily assumed or undertaken, and, when so assumed, the defendant must exercise reasonable care.20 Where the property owner assumes a duty to provide safety, evidence and knowledge of prior violent and non-violent crimes have no bearing on imposition of the duty.21

The Supreme Court of Missouri has ruled that "[t]he law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken" (emphasis added).22 The Missouri Court of Appeals, in Keenan v. Miriam Foundation, has adopted § 324A of the Restatement (Second) of Torts, which provides that:

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 or his things, 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

Corrigan and Van Ronzelen admit that where a defendant has assumed a duty of care, plaintiffs may offer non-violent and non-similar crimes into evidence. Such evidence is not, however, offered to establish duty, since the defendant has already assumed the duty. There is, therefore, no need to present prior crime evidence to satisfy the duty element of the tort. The only use for such prior crime evidence is to establish breach of the duty. Keenan allows introduction of prior non-violent crimes, not to establish duty, but to establish "the level of care required by the owner of the premises."24 This is, of course, a breach concept.

According to Keenan, Aaron v. Havens says that once the duty, a question of law, has been assumed and established:

the frequency and nature of the crimes occurring on the premises, whether violent or not, are relevant for the jury to assess the level of care required to protect the invitee's person and property. Under such circumstances, it is then the jury's function to determine whether the level of care required was provided and whether the duty was breached.25

Although no "bright line" opinion has yet been handed down by the courts, the admissibility of both violent and non-violent crime evidence seems near automatic once duty has been established.

VI. Landlords

The landlord-tenant relationship gives rise to potential liability which does not arise in normal business invitee cases. A tenant enjoys a degree of protection not afforded to a mere business invitee.

When a tenant is injured on a portion of the landlord's premises over which the landlord has retained control, a duty to protect is imposed as a matter of law.26 "The owner of an apartment building has a recognized duty to use due care to make common premises safe, as against foreseeable risks."27 The Missouri decisions, before and after Aaron, clearly establish the existence of a landlord's duty.

The elements of the existence of a landlord-tenant relationship are: (1) a contract, express or implied, between the parties; (2) the creation of an estate in the tenant, either at will or for a specified term; (3) a reversion to the landlord; and (4) the transfer of exclusive possession and control to the tenant.28

Restatement (Second) of Torts § 360, which has been adopted in MAI 22.05 [1981 Revision], Committee Comment, reads as follows:

A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control.

(Emphasis added.)

The duty owed to the tenant is also owed to an invitee of the tenant.29 A landlord's duty to its tenants and tenants' invitees extends to the portions of the premises the landlord retains in his control.30 "To be bound to keep the premises in a reasonably safe condition the landlord need not have reserved such a degree of control as to be entitled to admit or exclude others from the premises; it is sufficient that he retained a general supervision over the premises for a limited purpose . . ."31

Once the legal duty has been established, a plaintiff must ordinarily show that a defendant failed to exercise due care to make common areas reasonably safe against foreseeable risks. This showing is accomplished through extensive discovery and the use of experts and fact witnesses.

The Supreme Court's exposition of the law in Aaron v. Havens addresses and refutes the argument upon which many defendants rely in summary judgment motions: that the absence of prior violent crimes on the defendant landlord's premises requires dismissal of the petition. Aaron held that, at least in the landlord-tenant situation, prior crimes need not be proven to establish duty. The clear implication is that duty can be established in many ways, so long as a defendant has reason to know the potential for injury of a tenant.

[T]he trial judge relied on such cases as Brown v. National Supermarkets, 731 S.W.2d 291 (Mo. App. 1987), and Warren v. Lombardo's Enterprises, Inc., 706 S.W.2d 286 (Mo. App. 1986), in dismissing the petition. The respondent [landlord] points to these cases in arguing that there is no duty to protect against violent crimes unless there is a past history of crimes of violence on the premises. The cases are not comparable, because they dealt with premises to which the public was invited, and fall under the general heading of liability to invitees.32

(Emphasis added.)

Corrigan and Van Ronzelen claim that, after Schelp v. Cohen-Esrey Real Estate Servs., Inc.33 and Kopoian v. George W. Miller & Co., Inc.,34 the Missouri Court of Appeals, Eastern District, narrowed its reading of Aaron with regard to common areas.35 True, Kopoian held that landlords "do not have a generalized duty to make common premises safe from generally foreseeable dangers, such as the threat of crime."36 But Kopoian actually expanded its understanding of Aaron by stating that "[i]t involved active negligence in which the landlord allegedly created risks which would not otherwise have existed by causing the fire escape to be constructed in such a way to make the tenant more vulnerable to attack."37 Schelp and Kopoian are consistent with each other and with Aaron. All three decisions merely refuse to mandate any particular duty for landlords or any other landholders to take specific steps to protect their tenants, tenants' guests, or others from the criminal acts of third parties. This is not to say no duty exists.

The operative phrase that must be used in studying the concept of duty is that the duty imposed is always "the duty to take reasonable steps." The particular "reasonable steps" required vary from case to case. Therefore, in determining whether potential liability exists, plaintiff and defense counsel must use a fact-specific approach before deciding whether any particular safety innovation should have been employed. One must not confuse "duty" with the "scope" of that duty, once established.

Corrigan and Van Ronzelen correctly report that Kopoian reads Aaron to mean "that the landlord's allegedly reckless enhancement of the ordinary risks of criminal assault constituted a special circumstance upon which liability could be based" (emphasis added by Corrigan and Van Ronzelen). Immediately after that quote, however, Kopoian states:

Such a "special circumstance" is akin to the already recognized "special circumstance" which exists when a landlord knows of the presence of a dangerous or violent individual on the premises, and the landlord fails to act within a reasonable time . . . [w]e agree with plaintiffs that Aaron shows the court is willing to determine foreseeability from all the circumstances of the case, without rigidly adhering to the requirement that the landlord have knowledge of prior violent crimes on the premises. We disagree, however, with plaintiffs suggestion that Aaron abrogates the requirement that there be special circumstances of some kind as a condition of finding a duty to provide security.38

This was the first time a Missouri court explicitly recognized a "special circumstance" other than prior violent crimes on the landholder's premises or the presence of a known dangerous person. The importance of this simple statement must not be overlooked. Its implications are monumental and instructive. As stated in Sections II, III and IV of this article, prior violent crimes are not the only - or even the best - indicators of foreseeability (special circumstances). This one innocuous excerpt from Kopoian seems to legitimize the argument that prior violent crime is not the end-all of duty analysis. Lawyers are encouraged to avoid readings of the case law that are so restrictive as to stifle both the legal imagination and justice. A special circumstance is nothing more than a fact which would put a reasonable defendant on notice that a crime on its premises is foreseeable.

Much has been said about the inadmissibility and lack of relevance of prior non-violent crime in premises liability cases. Both bench and bar broadly misunderstand prior crime evidence - both violent and non-violent. Such evidence has a different significance when applied to establish duty than when used as evidence contributing to the proof of breach (level of care). Non-violent crime evidence is inadmissible under Missouri law only when offered to establish duty; it is perfectly admissible on breach-related issues.

Prior crime evidence has more than one use. The various types of premises liability cases are identical, in both pleading and practice, after the duty threshold has been satisfied. The major classes of premises liability cases differ only in the manner in which duty must be established.

In other words, once the duty threshold has been satisfied, all types of premises liability cases are evidentiarily identical. The point? Make absolutely certain that, before prosecuting or defending any premises liability case, you are totally familiar with the law regarding establishment of duty. After that, any quirks of the premises liability demons will have been exorcised and you may proceed with the conduct of your case like any other. The moral? Stop being afraid of premises liability cases!

VII. A Proposed Approach to Judicial Establishment of Duty

Since most of the confusion in premises liability cases involving injury inflicted in the commission of a violent crime centers around the thorny issue of duty, the simple solution is to clarify duty. As discussed above, once duty has been established, premises liability cases proceed as any other negligence case.

Before and after Madden, many meritorious cases have been dismissed by trial judges whose focus has been improperly and unfairly restricted to the issue of whether the plaintiff has pleaded prior violent crimes on the defendant's premises. In many such instances, the merits of the individual cases were never allowed to develop. Cases have been thrown out of court, in bulk, when only one foggy threshold issue has even been touched upon. This result is an unnecessary and extreme measure that may be easily avoided without allowing spurious claims to proceed through the judicial system.

Defense attorneys claim such cases threaten the very economic stability of the business world. One need only study Judge Welliver's dissenting opinion in Madden to gain a sense of the confusion, uncertainty and hysteria surrounding this critical societal issue:

Today, all of the Missouri business community is clearly and unequivocally saddled with liability for criminal acts committed against persons on the property of the business. Every person in Missouri is going to find the cost of guards, security systems, and higher liability insurance premiums added to the cost of the groceries and products sold by the business establishments . . . What greater curse can be cast upon Missouri property owners than that juries be permitted to assess against them damages for the acts of criminals committed against other persons on their property.39

If the issue of duty and when it should be imposed is the cause of this confusion, it stands to reason that the issue should be drastically simplified. Whether by statute or judicial mandate, all business owners and possessors of land should be required to exercise ordinary care to protect their business invitees and other members of the public who may legitimately come upon their land from the criminal acts of third persons. This suggestion places no unfair burden on the business community. They would only be bound to use reasonable care in planning their security systems.

There is nothing new or radical about imposing a duty of due care on one class of our citizenry for the benefit of all. For example, the duty to operate a motor vehicle with the "highest degree of care" has been statutorily imposed on the driving public for many years.40 The same can be done with regard to possessors of land who invite the public onto their premises in order to reap a profit through various mercantile and service enterprises.

The imposition of such a duty would clarify the question of when such possessors of land must take any steps whatsoever to protect their business invitees and other patrons. Where is the justice in a system that allows the business community to totally evade its responsibility to undertake protective steps simply because no prior violent crimes have occurred on their premises?

Customers are the backbone of business. If business owners maximize their safety, patronage and profits will increase. Judge Welliver's Madden dissent stands as a protectionist tribute to business, but there is no need to protect business from the community at the expense of its patrons.

The difference between an innkeeper case and any of the others is only an issue until duty is established. It makes no difference whether this duty is established statutorily, through a special relationship, through special facts and circumstances, through voluntary assumption of the duty, or from a showing that the injury occurred on a portion of the premises over which the landlord has retained control. Once the duty threshold is satisfied, there is no significant difference between any of the types of cases mentioned above. The Supreme Court of Missouri, in Scheibel, acknowledged that "[a]s to the duty owed to invitees, licensees and trespassers by an owner-occupier of land, the significance of the status largely disappears once the presence of the visitor becomes known, and a uniform duty, that of reasonable care, is owed to each as to the activities conducted on the premises."41

If the duty to behave reasonably is imposed on possessors of land, meritorious cases will no longer automatically die as a result of grants of motions to dismiss predicated on an absence of prior violent crime on defendants' premises. Any properly pleaded case will be allowed to advance through the courts until its facts are fully developed. Then, if the plaintiff cannot prove the precipitating crime was foreseeable and that the defendant failed to exercise the appropriate degree of care to protect him or her from that crime, summary judgment motions will weed out unworthy claims.

What is reasonable under one set of facts may well be negligent under another. If a parking garage operator or owner had no significant prior criminal history and no reason to anticipate that a customer would be assaulted or raped in its garage, a plaintiff would have a difficult time establishing that any particular security measure should have been in effect. If, on the other hand, another operator had a garage that had been the scene of numerous violent crimes, had poor lighting, no guards, no warnings and no control over access and egress, that operator would be held to a duty to take more aggressive action to protect its customers. Yet both would be burdened with exactly the same duty - the duty to take reasonable steps to protect their invitees from foreseeable crime. The steps that each should take in the exercise of that duty would differ according to their own particular circumstances. Well drafted, competently argued summary judgment motions would easily eradicate shoddy cases, while worthy claims could proceed to trial. The advantage over today's confused state of affairs would be that cases would be dismissed prior to trial only after full exploration of their facts, rather than on judicial determination that an abstract and vague duty threshold had not been satisfied.

The proposed approach would show the community that business entities must exercise reasonable care in the exercise of their endeavors. As discussed above, such a burden is already imposed on innkeepers, common carriers, schools, entities that have reason to know a particular person may pose harm to their invitees, motor vehicle operators and landlords (at least on their common areas). What possible reason can there be to exclude conventional businesses from this duty to behave reasonably? There is none! Here we are presented with a classic example of a rule (the "no duty" rule) being eaten up by its exceptions.

It is time to impose the duty to behave reasonably across the board on all commercial enterprises, and to let the facts speak for themselves. Only then will defense attorneys be able to effectively advise their clients on how to avoid liability. And only then will plaintiffs' attorneys be able to adequately assess incoming premises liability claims. In the process, privately owned commercial and institutional premises will become safer for their patrons.

VIII. Conclusion

A literal reading of the case law on landowners' liability for injuries caused by the criminal acts of third persons supports the argument that these cases are far broader in scope than generally acknowledged by the defense bar and many judges. We encourage plaintiffs' counsel to develop alternative theories of liability and to fully develop the facts of each case. Foreseeability is the key, and evidence of foreseeability comes in many forms.

We have not addressed additional theories of liability, such as negligent hiring and negligent supervision, in this article. They, along with others that will be advanced by forward-thinking plaintiffs' attorneys, should be perfected and fully developed. Cases involving persons wrongfully injured through the criminal acts of third parties should be studied carefully. Even if a fact pattern fails to fit neatly into one of the easily recognizable exceptions to the no duty rule, one must take thoughtful and innovative steps to create new exceptions and wipe out the blanket imposition of a rule that refuses to hold wrongdoers responsible for their negligent acts.

Crime is a fact of life. Our police can only do so much to keep it under control. Owners and possessors of land held open to the public, who are in the best position to secure their own premises, must be required to do their part in protecting their patrons. No unreasonable burden should be placed on such possessors of land. Neither should they be allowed to escape liability for the first, second, third, fourth or - perhaps - tenth violent crime that occurs on their premises through their negligent failure to protect or warn. Our judicial system must cast off the medieval notion that only after the occurrence of a number of violent crimes on one's premises will a duty to improve dangerous conditions attach. The present approach by Missouri courts is condemning many of our citizens to unspeakable injury, much of which would be alleviated by landholders, if only the courts would inform them that such corrective action is required.

Footnotes

1 William M Corrigan, Jr. & Timothy W. Van Ronzelen, Liability for Criminal Acts of Third Persons, 52 J. Mo. Bar 359 (1996).

2 648 S.W.2d 881 (Mo. banc 1983).

3 758 S.W.2d 59 (Mo. banc 1988).

4 Ford v. Monroe, 559 S.W.2d 759 (Mo. App. S.D. 1977).

5 Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477, 483 (D.C. Cir. 1970).

6 Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976).

7 Irby v. St. Louis County Cab Co., 560 S.W.2d 392 (Mo. App. E.D. 1977).

8 Id. at 394.

9 Id. at 395.

10 Id. at 395; Second Restatement (Second) of Torts, § 302B.

11 Id. at 395 (citing Green v. Kahn, 391 S.W.2d 269, 275 (Mo. 1965)).

12 Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881, 887 (Mo. banc 1983).

13 Id. at 886.

14 Nappier v. Kincade, 666 S.W.2d 858 (Mo. App. E.D. 1984).

15 Faheen by Hebron v. City Parking Corp., 734 S.W.2d 270 (Mo. App. E.D. 1987) (assassin placed starter bomb in car parked in apartment complex parking garage).

16 Virginia D., at 887.

17 Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207 (Cal. 1993).

18 Seibert v. Vic Regnier Builders, Inc., 856 P.2d 1332 (Kan. 1993).

19 MacArthur v. Gendron, 312 S.W.2d 146 (Mo. App. S.D. 1958).

20 Keenan v. Miriam Foundation, 784 S.W.2d 298, 302 (Mo. App. E.D. 1990) (citing Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18, 23 (Mo. 1953)).

21 Keenan, at 304.

22 Hoover's Dairy, Inc. v. Mid-Amer-ica Dairymen, 700 S.W.2d 426 (Mo. banc 1985).

23 Keenan, at 305.

24 Id. at 304.

25 Id. citing Aaron v. Havens, 758 S.W.2d 446 (Mo. banc 1988).

26 Aaron v. Havens, 758 S.W.2d 446 (Mo. banc 1988).

27 Id. at 447 (citing Jackson v. Ray Kruse Const. Co., Inc., 708 S.W.2d 664 (Mo. banc 1986) (the duty owed to landlord's tenants has been "strongly emphasized in recent cases. . ."); and Green v. Kahn, 391 S.W.2d 269 (Mo. 1965)). See also Gregg v. Erb, 834 S.W.2d 253 (Mo. App. E.D. 1992) (a landlord has a duty to a tenant or tenant's invitee to exercise ordinary care to keep common use areas such as parking lots, sidewalks and steps in a reasonably safe condition); and Uelk v. Directory Distributing Assoc., 803 S.W.2d 632 (Mo. App. E.D. 1991) (landlord is liable for personal injuries received by a tenant or tenant's invitee where injury occurs in common area).

28 Newcomb v. St. Louis Office for MR/DD, 871 S.W.2d 71, 73 (Mo. App. E.D. 1994).

29 Gregg, 834 S.W.2d at 255; Darl-ington v. Railway Exchange Bldg., 183 S.W.2d 101, 105 (Mo. 1944). See also Uelk, 803 S.W.2d at 635-36.

30 Stubbs v. Panek, 829 S.W.2d 544, 546 (Mo. App. W.D. 1992); Wingo v. Eagle Realty Co., 726 S.W.2d 805, 807 (Mo. App. E.D. 1987); Lemm v. Gould, 425 S.W.2d 190, 194 (Mo. 1968); Peterson v. Brune, 273 S.W.2d 278, 280 (Mo. 1954).

31 Nenninger v. Oran Life Tabernacle Church, 789 S.W.2d 530, 532 (Mo. App. S.D. 1990) (citing Lemm v. Gould, 425 S.W.2d at 195).

32 Aaron, at 447.

33 Schelp v. Cohen-Esrey Real Estate Servs., Inc., 889 S.W.2d 848 (Mo. App. W.D. 1994).

34 Kopoian v. George W. Miller & Co., Inc., 901 S.W.2d 63 (Mo. App. W.D. 1995).

35 Corrigan and Van Ronzelen, supra note 1, at 362.

36 Kopoian, at 59.

37 Id. at 69.

38 Corrigan and Van Ronzelen, supra note 1, at 362; Kopoian, at 69-70 (emphasis in original).

39 Madden v. C & K Barbecue Carry-out, Inc., 758 S.W.2d 59, 67 (Mo. banc 1988).

40 Section 304.010, RSMo 1995.

41 Scheibel, at 288.

JOURNAL OF THE MISSOURI BAR
Volume 53 - No.2 - March-April 1997

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