Becker v. Diamond Parking, Inc.

• Decision Date: 14 February 1989
• Docket Number: No. WD,WD
• Parties: Phyllis BECKER, Appellant, v. DIAMOND PARKING, INC., Respondent. 40873.
• Court: Missouri Court of Appeals

Page 169

768 S.W.2d 169

Phyllis BECKER, Appellant, v. DIAMOND PARKING, INC., Respondent.

No. WD 40873.

Missouri Court of Appeals,

Western District.

Feb. 14, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 28, 1989.

Application to Transfer Denied May 16, 1989.

G. Edwin Proctor, Jr., Kansas City, for appellant.

John R. Loss and Matthew R. Davis, Kansas City, for respondent.

Before KENNEDY, C.J., and SHANGLER and GAITAN, JJ.

GAITAN, Judge.

Plaintiff-appellant, Phyllis Becker, seeks damages from defendant-respondent, Diamond Parking Inc., resulting from an assault and attempted rape on defendant's premises. The trial court granted summary judgment in favor of defendant. We reverse and remand.

Plaintiff was an employee of the Missouri Division of Youth Services working in their regional Kansas City office. Until July 1985, this office was located in the Missouri State Office Building in downtown Kansas City, Missouri. In July 1985, the Missouri State Office Building was closed for asbestos removal and plaintiff's office was moved to the location of 906 Grand Avenue in downtown Kansas City, Missouri. Upon transfer of its office, the Missouri Division of Youth Services contracted for parking spaces for its employees at defendant's parking facility at 307 East Ninth, Kansas City, Missouri. Plaintiff continuously parked her car in this enclosed, multi-story facility.

On the morning of November 13, 1985, plaintiff parked her car at the parking facility as usual. At the end of the working day, between 4:00 and 5:00 p.m., plaintiff returned to her parked car in the subject facility and as she was about to enter her car she was attacked and grabbed by an unknown assailant. He violently dragged her up an unlit and abandoned stairwell in defendant's facility, into an abandoned and unlit closet where he attempted to rape and otherwise assaulted plaintiff. As a result of this attack plaintiff suffered physical as well as severe and permanent psychological injuries.

On October 25, 1985, less than three weeks prior to the assault on plaintiff, an incident similar to plaintiff's occurred at the same parking facility. At approximately 4:00 p.m. in the afternoon a lady was attacked by an unknown assailant. This incident was reported to defendant and was described by defendant's employee, Steve Borkowski, in his deposition as a rape. In addition, incident reports from defendant's files indicate that occurrences of break-ins, stealing or vandalism occurred in the same facility on August 13, 1984; September 18, 1984; September 24, 1984; October 9, 1984; December 31, 1984; February 1, 1985; March 15, 1985; and September 20, 1985. No warnings were provided to defendant's customers regarding any incident which had occurred at the subject facility. Furthermore, no additional safety precautions were taken and no warning was given to any of the customers after the October 25, 1985 incident.

After the trial court entered its Order rendering summary judgment in favor of defendant, plaintiff requested the trial court to reconsider its decision and order a trial for plaintiff. The trial court refused to grant plaintiff a trial.

In reviewing a summary judgment, this Court must view the record in the light most favorable to plaintiff. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. banc 1988). Summary judgment is a drastic remedy and is "inappropriate unless the defendants have shown by unassailable proof that they are entitled to judgment as a matter of law." Id. at 61. Summary judgment should not be granted if a genuine issue of fact exists. "A genuine issue of fact exists when there is the slightest doubt about a fact." Id.

In the present action, the trial court found that in Missouri a party has no duty to protect another from a deliberate criminal attack by a third person unless the facts of the case fall within one of two recognized exceptions to that rule: (1) where there existed between plaintiff and defendant a special relationship giving rise to a duty to protect; or (2) where special circumstances are present such that a reasonable invitor would have recognized a danger and taken steps to protect its invitee from assailants. The trial court found that the special relationship exception is not applicable in the present action. The court also found that the special circumstances exception is likewise not applicable because plaintiff had only shown one prior violent attack similar to plaintiff's. The court stated that one prior incident is not sufficient to put defendant on notice.

However, in the recent Missouri Supreme Court decision of Madden, the Court dealt extensively with the same issues which are raised in this appeal. Recognizing that a duty to protect business invitees from the criminal acts of unknown third persons may be imposed by common law under the facts and circumstances of a given case, the Court quotes at length from the Restatement (Second) of Torts.

Section 344 of the...