Cornpropst v. Sloan

• Decision Date: 29 September 1975
• Citation: 93 A.L.R.3d 979,528 S.W.2d 188
• Parties: Marie CORNPROPST et al., Appellants, v. Marcus SLOAN, Jr., et al., Appellees.
• Court: Tennessee Supreme Court

Page 188

528 S.W.2d 188

93 A.L.R.3d 979

Marie CORNPROPST et al., Appellants, v. Marcus SLOAN, Jr., et al., Appellees.

Supreme Court of Tennessee.

Sept. 29, 1975.

Frank L. White, Paul, White, Hallman & Keolz, Memphis, for appellants.

Thomas D. Yeaglin, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for appellees.

OPINION

FONES, Chief Justice.

The question on this appeal is whether the complaint states a cause of action against merchants who are members of a shopping center association, for personal injuries to an invitee resulting from a sudden criminal assault by a third party, on a shopping center parking lot.

The trial judge dismissed the action pursuant to motion made under Rule 12.02(6), Tennessee Rules of Civil Procedure.

Named as parties defendant, in addition to plaintiff's assailant, were the owners and managers of the Eastgate Shopping Center in Memphis and its lessees, the owners and operators of the various business establishments housed in the shopping center complex.

This appeal only involves one of these, viz., Top Value Enterprises. The trial judge treated Top Value's motion to dismiss as a 'pilot motion.' He directed the entry of final judgment as to it and, pursuant to Sec. 27--305 T.C.A., permitted an appeal and certified the existence of a controlling question of law. Judgment was withheld as to all remaining defendants. All requirements of the statute have been met and the case is before this Court for review.

I.

The record reflects that the trial judge conducted a hearing upon the motion to dismiss; the proceedings, consisting solely of argument of counsel and the dialogue among the court and counsel.

Top Value, the Successful party, made application to the court for leave to file a Bill of Exceptions incorporating these matters into the record. The court, relying upon Anderson v. Carter, 512 S.W.2d 297 (Tenn.App.1974), and over the objection of counsel for plaintiff, entered an order granting permission to file this so-called bill of exceptions, and the same is physically a part of the record before us. We find nothing in Anderson v. Carter which would permit a non-appealing successful party to file a bill of exceptions.

Rule 12.02(6), Tennessee Rules of Civil Procedure permits a party to move to dismiss for 'failure to state a claim upon which relief can be granted.' A motion grounded on this portion of the rule is the equivalent of a demurrer, under former practice, State v. Minimum Salary Department of A.M.E. Church, Inc., 477 S.W.2d 11 (Tenn.1972) and, as a demurrer, it is a test of the sufficiency of the leading pleading. Nothing said in argument on such a motion can add to or take from the complaint. It must stand or fall upon its allegations unaffected by the approbation of its author or the denunciations of the defense, as expressed in oral argument. Hence a bill of exceptions is neither necessary nor proper in such cases.

Appellant's motion to strike appellee's bill of exceptions is sustained.

II.

A Rule 12.02(6) motion, as a demurrer, admits the truth of all relevant and material averments contained in the complaint, Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375 (1957); but asserts that such facts do not constitute a cause of action. Henderson v. Lawrence, 212 Tenn. 247, 369 S.W.2d 553 (1963).

The first four (4) Paragraphs of the complaint assert that the approximately thirty-seven (37) tenant-merchants comprising the shopping center are members of an association known as the Eastgate Shopping Center Association, designed to promote their respective businesses and protect their economic interests.

We quote the material portion of the complaint verbatim:

'5. On October 18, 1973, at or around 8:00 p.m. to 8:30 p.m., Plaintiff, Marie Cornpropst, came to the Eastgate Shopping Center for the purpose of shopping. Plaintiff was therefore an invitee. It was dark. Plaintiff parked her vehicle in front of Defendant Woolco store and went in there to shop. Having made her purchases, and after leaving said store, as the Plaintiff was preparing to re-enter her vehicle in order to depart from said shopping center, the Defendant, Marcus Sloan, Jr., suddenly drove up by the side of her car, jumped out, violently grabbed the Plaintiff, with whom he wrestled and fought and tried to force her from her vehicle into his vehicle. The Defendant Sloan viciously attacked the Plaintiff and beat her about the person as she resisted with all her might and screamed for help. When certain rescurers came running to the scene, Defendant Sloan jumped into his vehicle and sped away. Plaintiff had never before seen this Defendant and in no way provoked this malicious assault. Plaintiff was beaten and bruised by Defendant about her entire body and shocked and dazed by the suddenness and viciousness of his assault and attack upon her, injuring Plaintiff severely. The employees of Defendant Woolco refused to permit the rescurers of this Plaintiff from using Woolco's phone in order to call the police for help.

6. Prior to this attack upon the Plaintiff there had been committed various crimes, assaults, and other acts of violence, either on the premises or in the immediate area of the Eastgate Shopping Center, which rendered said vicinity unsafe and potentially dangerous, particularly for the individual female shopper at nighttime. Throughout the times and afterwards of these criminal occurrences which preceded the incident complained of herein, there were no security guards posted, no precautions taken and no other protective measures used or installed in the Eastgate Shopping Center premises for the safety of customers; nor did any employee of Woolco or other merchant Defendants herein offer to see Plaintiff safely to her car. Each and every member of the Eastgate Shopping Center Association, or other tenant in said shopping center owed a duty to the Plaintiff invitee to provide adequate measures to prevent harm to her from acts of violence.

7. Defendant Woolco was neligent in that it knew, or in the exercise of reasonable and ordinary care should have known in the aftermath of crimes or acts of violence abovementioned, that the Plaintiff invitee would be exposed to potential danger and personal harm, and unprotected against criminal acts especially if shopping at its store at night, and this Defendant took no precautions to protect customers and this Plaintiff from unlawful attacks and the harm that ensued to the Plaintiff. In addition, Defendant Woolco, through its agents and employees, was put on notice that the Plaintiff had been brutally assaulted and refused to assist her when the request for use of its telephone was made in order to call police.

8. Each and every one of the other named Defendants comprising the Eastgate Shopping Center Association, and Defendants Union Realty Company and Cross-Country Realty Company, who are the landlords and/or lessors/lessees of said merchant Defendants, was negligent in that each one knew or in the exercise of reasonable and ordinary care should have known that the Plaintiff, an invitee, would be exposed to the likelihood of potential danger and personal harm and unprotected against criminal acts, especially at night while the stores were open, and that these Defendants, individually and collectively as a class, failed to take adequate precautions to protect its customers and this Plaintiff from personal harm from this assault and battery upon her person.

Defendants Union Realty Company and Cross-Country Realty Company, as well as Defendant Woolco and all others herein comprising the Eastgate Shopping Center Association were negligent in failing to provide security guards or some patrolling of the parking area or escort service or other high visibility security measures, or warning of potential danger, for the safety of this Plaintiff, when they knew or should have known of the likelihood of danger and harm under hazardous conditions of nighttime parking and shopping on a huge parking lot on premises and in a neighborhood where acts of violence and criminal activity had theretofore occurred.'

The trial judge was of the opinion that Thomas v. General Electric Company, 494 S.W.2d 493 (Tenn.1973), controlled this case and required its dismissal. While this Court is in disagreement as to the correct rule to be applied and the disposition of the case in its present posture, all agree that Thomas is not controlling and that we have no Tennessee case directly in point.

III.

At common law, a private person or corporation, as distinguished from governmental units, had no duty whatsoever to protect others from the criminal acts of third parties. That general rule has remained steadfast in the tort law of this country, despite the exceptions that have appeared from time-to-time, where special relationships and special circumstances have combined to impose liability.

We are dealing with an act of nonfeasance, the failure to take steps to protect another from harm, as distinguished from misfeasance, or active misconuct causing positive injury to others.

In view of what we regard as an unfortunate extension of tort law by the minority of this Court, we find the following comments of Professor Prosser discussing the evolution of acts of nonfeasance, are appropriate '--The highly individualistic philosophy of the older common law had no great difficulty in working out restraints upon the commission of affirmative acts of harm, but shrank from converting the courts into an agency for forcing men to help one another.'

'Liability for nonfeasance was therefore slow to receive recognition in the law. It first appears in the case of those engaged in 'public' callings, who, by holding themselves out to the public, were regarded as having undertaken a duty to give service, for the breach of which they were liable. This idea still survives in the obligation of common carriers, innkeepers, public warehousemen, and public utilities to serve all...