Conroy v. Solon Gershman, Inc.

• Decision Date: 04 April 1989
• Docket Number: No. 55245,55245
• Citation: Conroy v. Solon Gershman, Inc., 767 S.W.2d 381 (Mo. App. 1989)
• Parties: Michael CONROY, Appellant, v. SOLON GERSHMAN, INC., and Gershman Investment Corp., Respondents.
• Court: Missouri Court of Appeals

Page 381

767 S.W.2d 381

Michael CONROY, Appellant, v. SOLON GERSHMAN, INC., and Gershman Investment Corp., Respondents.

No. 55245.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 4, 1989.

Jon G. Carlson, Edwardsville, Ill., Jerome T. Bollato, William E. Moench, St. Louis, for appellant.

Russell F. Watters, Charles E. Reis IV, St. Louis, for respondents.

HAMILTON, Judge.

Plaintiff Michael Conroy filed this action against defendants Solon Gershman, Inc., and Gershman Investment Corporation ¹ to redress injuries he allegedly sustained when a tenant of defendant Solon Gershman, Inc., shot him during a drug raid in the tenant's apartment. The trial court dismissed with prejudice Plaintiff's First Amended Petition for failure to state a claim upon which relief can be granted and Plaintiff appeals. We affirm.

In reviewing the sufficiency of Plaintiff's petition, we accept as true those facts properly pleaded, giving the averments a liberal construction, and according the petition all reasonable inferences fairly deducible from the facts alleged. Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. banc 1983).

Plaintiff alleges in his petition that, on March 30, 1987, he was accidentally shot by Tom Rafferty while visiting an apartment rented by Rafferty and others from defendant Solon Gershman, Inc. According to Plaintiff's petition, after Rafferty pulled a gun during a drug raid at the apartment, he accidentally shot Plaintiff. In addition, Plaintiff avers that, prior to the date of the incident in question, a drug raid and shooting had occurred at the apartment in which Plaintiff was shot.

Plaintiff further alleges that defendant Solon Gershman, Inc., was negligent in failing to: (1) screen its tenants; (2) "take action" with regard to its tenants when it knew or should have known that certain tenants were conducting illegal and dangerous activities; and (3) "take action" to protect Plaintiff when it knew or should have known that certain tenants were conducting illegal and dangerous activities.

A petition seeking damages for negligence must allege ultimate facts which, if proved, demonstrate: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) breach of this duty; (3) causation; and (4) injury to the plaintiff. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo. banc 1988).

Under most circumstances, a landlord or lessor has no liability for injuries to a tenant or to the tenant's invitees caused by dangerous conditions. Milne v. Pevely Dairy Co., 641 S.W.2d 158, 160 (Mo.App.1982). Missouri courts do recognize, however, some exceptions to this general rule. For example, in the landlord/tenant context, a duty may arise "when a person, known to be violent, is present on the premises or an individual is present who has conducted himself so as to indicate danger and sufficient time exists to prevent injury." Faheen v. City Parking Corp. 734 S.W.2d 270, 273 (Mo.App.1987), (citing Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983)). This court has also recognized a "violent crimes" exception that requires proof of these elements: (1) a relationship between plaintiff and defendant, such as landlord and tenant; (2) prior specific incidents of violent crimes on the premises, sufficiently numerous and recent to put a defendant on actual or constructive notice that third persons are likely to endanger the safety of defendant's invitees; and (3) sufficient similarity between the incident causing injury and prior specific incidents of violent crimes occurring on the premises to prompt a reasonable person to take precautions to protect his invitee from that activity. Faheen, 734 S.W.2d at 273-74.

Cases in which Missouri courts have recognized that the landlord or business owner has a duty to protect against known dangerous activities all involve conduct which occurred on or in common premises allegedly under the landlord's control. See Madden v. C & K Barbecue Carry-out, 758 S.W.2d 59 (Mo. banc 1988) (parking lot); Jackson v. Ray Kruse Constr. Co., Inc., 708 S.W.2d 664 (Mo. banc 1986) (parking lot); Virginia D. v. Madesco Inv. Corp. 648 S.W.2d 881 (Mo. banc 1983) (public restroom).

Plaintiff contends that the decision of the Missouri Supreme Court, Aaron v. Havens, 758 S.W.2d 446 (Mo. banc 1988), broadens a landlord's potential liability to include conduct occurring in the leased premises. Plaintiff's reliance on Aaron is misplaced. In Aaron, the plaintiff was assaulted in her apartment by an individual who gained access to that apartment through a fire escape. The plaintiff alleged in her petition that the landlord knew or should have known of a dangerous condition of the fire escape such that a criminal intruder could gain easy access to her apartment. Concluding that the fire escape was part of the common premises under the landlord's control, the court held that "[t]here is no logical reason why a dangerous condition of common premises, proximately causing injury on private premises, could not be the occasion for...