Behrenhausen v. All About Travel, Inc., WD

• Decision Date: 17 March 1998
• Docket Number: No. WD,WD
• Citation: 967 S.W.2d 213
• Parties: . ALL ABOUT TRAVEL, INC., Respondent, U.S. Air, Inc., Respondent. 54283. Missouri Court of Appeals, Western District
• Court: Missouri Court of Appeals

Page 213

967 S.W.2d 213

Courtney Anne BEHRENHAUSEN and Sarah Elizabeth Behrenhausen, Appellants, v. ALL ABOUT TRAVEL, INC., Respondent, U.S. Air, Inc., Respondent.

No. WD 54283.

Missouri Court of Appeals,

Western District.

March 17, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 28, 1998.

Application for Transfer Denied

June 16, 1998.

Timothy M. Aylward, Karl Zobrist, Phillip R. Dupont, Sarah M. Yehle, Blackwell, Sanders, Matheny, Weary & Lombardi, LLP, Kansas City, for appellants.

John W. Cowden, Curtis Landherr, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, Susan Getzendanner, Donna L. McDevitt, Tiffanie N. Cason, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for respondent U.S. Air, Inc.

James L. Sanders, Arlen L. Tanner, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Kansas City, for respondent.

Before ULRICH, C.J., P.J., and HOWARD and RIEDERER, JJ.

ULRICH, Chief Judge, Presiding Judge.

Courtney and Sarah Behrenhausen appeal from the trial court's order granting USAir's motion to dismiss and granting summary judgment in favor of All About Travel, Inc. in the Behrenhausens' wrongful death action against USAir and All About Travel, Inc. The Behrenhausens are daughters of Roger Behrenhausen who was murdered in the parking garage of the Kansas City International Airport by Grady Motes. Mr. Motes orchestrated the murder utilizing information he obtained from All About Travel and USAir regarding Mr. Behrenhausen's flight schedule. The Behrenhausens raise two issues on appeal. They contend that the trial court erred by (1) granting USAir's motion to dismiss where USAir owed a duty to Mr. Behrenhausen not to disclose his flight schedule and where USAir's disclosure of Mr. Behrenhausen's flight schedule was the cause in fact and proximate cause of Mr. Behrenhausen's death and (2) granting summary judgment in favor of All About Travel where All About Travel owed a duty to Mr. Behrenhausen not to disclose his flight schedule and where All About Travel's disclosure of Mr. Behrenhausen's flight schedule was the cause in fact and proximate cause of Mr. Behrenhausen's death. The judgment of the trial court is affirmed.

FACTS

Roger Behrenhausen and his companion, Dani Householter, arrived in Kansas City Missouri on a USAir flight from New York on October 25, 1993. Shortly after their arrival, Grady Motes a contract killer allegedly hired by David Langhorn, the ex-boyfriend of Ms. Householter, murdered Mr. Behrenhausen in the parking lot of the Kansas City International Airport ("KCI").

Mr. Langhorn obtained Mr. Behrenhausen's flight schedule from All About Travel, a travel agency with which Mr. Langhorn and his company, Johnson Food Equipment, regularly did business. Mr. Langhorn contacted Patricia Burkhead, an employee at All About Travel, to obtain Mr. Behrenhausen's flight schedule. Mr. Langhorn asserted that Mr. Behrenhausen was a "client or business associate." Ms. Burkhead reviewed computer records to determine Mr. Behrenhausen's return schedule but did not ascertain whether Mr. Behrenhausen consented to such inquiry. Mr. Behrenhausen's flight information was not available on the computer, however, because Mr. Behrenhausen had not purchased his ticket through All About Travel. Ms. Burkhead, thus, called USAir and was told by an employee when Mr. Behrenhausen's return flight was scheduled. The USAir employee A week and a half before the killing, Grady Motes was provided his ticket to come to Kansas City to kill Mr. Behrenhausen. One week before the murder, Mr. Motes bought the shotgun he used to kill Mr. Behrenhausen. When Mr. Motes flew to Kansas City on October 21, 1993, he brought the shotgun with him. This was the third time that Mr. Motes had traveled to Kansas City with plans to kill Mr. Behrenhausen. Additionally, Ms. Householter had previously received a brochure from Mr. Langhorn threatening Mr. Behrenhausen.

did not ask Ms. Burkhead the purpose of or justification for the inquiry.

Mr. Motes shot Mr. Behrenhausen three times with the shotgun at close range in the parking lot of KCI shortly after Mr. Behrenhausen deplaned from the USAir flight. Mr. Motes testified that knowing the precise information learned from USAir and All About Travel about Mr. Behrenhausen's return flight enabled him to arrange and execute an ambush in the underground parking lot where he could commit the crime and escape undetected. Mr. Motes testified that without knowing Mr. Behrenhausen's flight information, he would not have executed the victim at the airport. Mr. Motes further testified that while he and Mr. Langhorn had initially planned to murder Mr. Behrenhausen and Ms. Householter's minor daughter at Ms. Householter's home, they had decided that KCI provided a better location for the murder due to the ability to escape undetected. Documents detailing Mr. Behrenhausen's movements that were compiled by Mr. Langhorn were later found in Mr. Motes's rental car.

Mr. Langhorn committed suicide before he could be apprehended by law enforcement authorities.

Courtney and Sarah Behrenhausen, the only children of Mr. Behrenhausen, filed suit for the wrongful death of their father. USAir filed a motion to dismiss. The trial court granted USAir's motion to dismiss for failure to state a claim, finding that under Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993), the Behrenhausens' claims were insufficient to show that USAir's actions were the "but for" cause of Mr. Behrenhausen's murder or that the murder of Mr. Behrenhausen was a natural and foreseeable consequence of USAir's alleged negligence in releasing Mr. Behrenhausen's flight schedule. All About Travel filed a motion for summary judgment on the same grounds argued by USAir in its motion to dismiss. The trial court granted All About Travel's motion for summary judgment and amended its previous order of dismissal with respect to USAir by entering summary judgment in favor of USAir. This appeal followed.

STANDARD OF REVIEW

Appellate review of the grant of either a motion to dismiss or a motion for summary judgment is similar in that in both instances the court engages in an essentially de novo review of an issue of law. Jordan v. Willens, 937 S.W.2d 291, 293 (Mo.App.1996). In reviewing the grant of summary judgment, however, the evidence is viewed in the light most favorable to the non-moving party, and the nonmoving party is given all reasonable inferences from the record in determining whether there is any genuine issue of material fact. Id.

By contrast, appellate review of the grant of a motion to dismiss is limited to an examination of the pleadings to determine whether the Petition invokes principles of substantive law. Id. The pleadings are liberally construed and all facts alleged are accepted as true and construed in the light most favorable to the plaintiff. Id.

I. THE TRIAL COURT DID NOT ERR BY GRANTING USAIR'S MOTION TO DISMISS

As their first issue on appeal, the Behrenhausens contend that the trial court erred by granting USAir's motion to dismiss. The Behrenhausens specifically contend that their petition alleged sufficient facts to assert a claim that USAir owed a duty to Mr. Behrenhausen to keep his flight schedule confidential, that USAir breached that duty by disclosing Mr. Behrenhausen's flight schedule to All About Travel and that this disclosure was the cause in fact and proximate cause of Mr. Behrenhausen's death.

Negligence is the failure to exercise the degree of care that a reasonably prudent and careful person would use under the same or similar circumstances. Jackson v. City of Blue Springs, 904 S.W.2d 322, 329 (Mo.App.1995); Kary v. Missouri Highway & Transp. Comm'n, 687 S.W.2d 692, 693 (Mo.App.1985). "The elements of a negligence claim under Missouri law are proof of (1) existence of a duty on the part of the defendant to protect plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure." Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984). The Behrenhausens' injury resulting from their father's death is not disputed. Whether the facts support the finding that the defendants owed a duty to not release information regarding Mr. Behrenhausen's flight schedule; whether they breached the duty; and whether their breach directly caused Mr. Behrenhausen's death must be determined.

The general rule in Missouri is that an owner of a business property does not have a duty to protect invitees from the deliberate criminal attack of a third person. Claybon v. Midwest Petroleum Co., 819 S.W.2d 742, 744-45 (Mo.App.1991); Faheen by Hebron v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App.1987). Two exceptions to this general rule exist. Id. The owner of business property may be liable when "special relationships" or "special facts and circumstances" exist. Id. (citing Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983)). "Special relationships" arise where a party entrusts himself to the protection of another and relies upon that person to provide a place of safety. Id. Missouri courts have long recognized that a special relationship exists between a common carrier, like USAir, and its passengers. Boyette v. Trans World Airlines, Inc., 954 S.W.2d 350, 354 (Mo.App.1997). "A common carrier has a duty to exercise the highest degree of care to safely transport its passengers and protect them while in transit." Id. (quoting Collier v. Bi-State Dev. Agency, 700 S.W.2d 479, 480 (Mo.App.1985)). In other words, the law imposes upon the carrier the duty to exercise the highest degree of care while the passenger-carrier relationship exists. Trader v. Blanz, 937 S.W.2d 325, 327 (Mo.App.1996). This duty includes the protection of passengers from all known and reasonably foreseeable dangers "at least until the passenger has been discharged from the carrier at a reasonably safe place." Id. (quotin...