Earley v. Dunn

• Docket Number: ED 110514
• Decision Date: 21 March 2023
• Citation: Earley v. Dunn, 670 S.W.3d 47 (Mo. App. 2023)
• Parties: Debbie M. EARLEY, Appellant, v. Mary V. DUNN, Respondent.
• Court: Missouri Court of Appeals

670 S.W.3d 47

Debbie M. EARLEY, Appellant,

v.Mary V. DUNN, Respondent.

No. ED 110514

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: March 21, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied April 25, 2023

Application for Transfer Denied July 20, 2023

FOR APPELLANT: Douglas B. Ponder & Jaclyn M. Zimmermann, 20 South Sarah Street, St. Louis, Missouri 63108.

FOR RESPONDENT: Stephen J. Fields & Claire C. Kates, 34 North Meramec, 5^th Floor, St. Louis, Missouri 63105.

John P. Torbitzky, J.

I. Introduction

This appeal concerns the question of whether an employer owes a duty to protect its employees from the criminal acts of third parties solely by nature of the employer-employee relationship. Debbie Earley was sexually assaulted by Mary Dunn's grandson while working as an in-home caregiver in Dunn's home. Earley sued Dunn for negligence, arguing that Dunn, as Earley's employer, had a duty to protect her from the assault. The circuit court granted summary judgment in favor of Dunn, ruling that Dunn had no such duty.

Though several Missouri opinions have stated that an employer-employee relationship can "sometimes" give rise to a duty to protect employees from the criminal actions of a third party, the opinions provide no guidance on when the duty arises.¹ Moreover, and perhaps more importantly, none of the opinions conducted any analysis of whether the employer-employee relationship is the type of special relationship that gives rise to a duty to protect someone from the criminal acts of a third party. Earley has not identified a single case from this jurisdiction, or any other, in which an employer was actually held to have a duty to protect its employees from the type of unforeseeable injury that occurred in this case.

Because we find that the circumstances of this case did not give rise to a duty to protect Earley from third-party criminal acts, we affirm the circuit court's judgment.

II. Factual and Procedural Background

In 2008, Dunn suffered a stroke that left her unable to care for herself. Dunn's daughter, Irene Laiben, sought to hire someone to provide her mother with in-home care. In this capacity, Laiben hired Earley to care for Dunn. Laiben handled most of the administrative work associated with Dunn's employment, including creating a schedule and distributing paychecks. All payments came from Dunn's accounts. Earley's duties included managing Dunn's medications, taking her to appointments, and assisting her with bathing and dressing. As part of her responsibilities, Earley cared for Dunn overnight and slept in Dunn's home.

One evening, while sleeping in Dunn's home, Earley awoke to Dunn's grandson, Tyler Young, knocking on the front door. Young was intoxicated, but Earley allowed him inside, believing she had no ability to refuse. After Earley returned to her room, Young entered and sexually assaulted her. Dunn was asleep at the time and unaware of Young's presence. Earley sued Dunn for negligence, alleging that Dunn violated her duty to protect Earley from Young's criminal acts. Earley argued that Dunn was her employer and their relationship gave rise to Dunn's duty. The circuit court entered summary judgment for Dunn. Specifically, the circuit court found that Dunn had no duty to protect Earley from criminal acts of third parties and stated that not every employer-employee relationship is a "special relationship." This appeal follows.

III. Standard of Review

This Court reviews the grant of summary judgment de novo. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation , 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate if the moving party establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6) (2021). We review the record in the light most favorable to the party against whom judgment is sought. State ex rel. Missouri Highway & Trans.Comm'n v. Dierker , 961 S.W.2d 58, 60 (Mo. banc 1998).

A defendant may establish a right to summary judgment by demonstrating (1) facts negating any one of the elements of the plaintiff's claim; (2) that the plaintiff, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one of the elements of the plaintiff's claim; or (3) that there is no genuine dispute as to the existence of the facts necessary to support the defendant's properly pleaded affirmative defense. Goerlitz v. City of Maryville , 333 S.W.3d 450, 453 (Mo. banc 2011).

IV. Discussion

As part of an action for negligence, a plaintiff must establish that the defendant owed the plaintiff a duty of care. Wieland v. Owner-Operator Services, Inc. , 540 S.W.3d 845, 848 (Mo. banc 2018). Whether a duty exists is purely a question of law. Aaron v. Havens , 758 S.W.2d 446, 447 (Mo. banc 1988). "The touchstone for the creation of a duty is foreseeability." Wieland , 540 S.W.3d at 848 (quoting L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center Company, L.P. , 75 S.W.3d 247, 257 (Mo. banc 2002) ). For this reason, the general rule is that there is no duty to protect against the criminal acts of third parties because such events are rarely foreseeable. Id.

An exception to this general rule arises when either a "special relationship" or "special facts and circumstances" exist, such that "an act or omission exposes someone to an unreasonable risk of harm through the conduct of another." Keenan v. Miriam Foundation , 784 S.W.2d 298, 302 (Mo. App. E.D. 1990). This case involves only the question of a special relationship. Special relationships "include those in which a party entrusts himself to the protection of another and relies upon that person to provide a place of safety." Id. Under this exception, the relationship alone gives rise to the duty. Faheen, By & Through Hebron v. City Parking Corp. , 734 S.W.2d 270, 272 (Mo. App. E.D. 1987).

On appeal, Earley argues that Dunn had a duty to protect Earley from the third-party criminal assault by Young because the employer-employee relationship is a special relationship.² In support, Earley cites numerous cases in which this Court included the employer-employee relationship in a list of other special relationships. That list is typically stated as follows: "Such relationships are usually delineated as those of innkeeper-guest, common carrier-passenger, school-student, and sometimes employer-employee." Meadows v. Friedman R.R. Salvage Warehouse , 655 S.W.2d 718, 721 (Mo. App. E.D. 1983) (citing Virginia D. v. Madesco Investment Corp. , 648 S.W.2d 881 (Mo. banc 1983) and Goldberg v. Housing Authority of Newark , 38 N.J. 578, 186 A.2d 291 (1962) ).

Initially, we have found no Missouri case holding that the employer-employee relationship should be considered a special relationship justifying departure from the general "no duty" rule. There exists no case law in this jurisdiction in which a court conducted an analysis on the issue. We have also been unable to locate any cases in which our courts have actually applied the special relationship exception to an employer.³ Instead, the concept appears to have come into our jurisprudence simply by being included, without elaboration, in a list of the types of relationships that can fit within the special relationship exception.

This list of relationships was first set out in Meadows v. Friedman R.R. Salvage Warehouse. 655 S.W.2d at 721. In Meadows , one of the plaintiffs was shot and injured while on the defendant's premises as a customer. Id. at 720. Meadows , therefore, involved the question of whether a business had a duty to protect its invitees from third-party criminal actions. See id. This Court held that there was no special relationship between a business and its invitees. Id. During its discussion, the Court did not conduct any analysis of the employer-employee relationship or mention the concept beyond including it in the list. As a result, the statement in Meadows that an employer-employee relationship can "sometimes" be a special relationship was unnecessary to the holding and is dictum. See Byrne & Jones Enterprises, Inc. v. Monroe City R-1 Sch. Dist. , 493 S.W.3d 847, 855 (Mo. banc 2016) ("Judicial decisions ‘must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.").

Meadows ’s inclusion of the employer-employee relationship in the list of special relationships was also unsupported by the two cases it relied on for the proposition. The first of those cases was Virginia D. v. Madesco Investment Corp. , in which a plaintiff sued a hotel for negligence after she was sexually assaulted in one of the hotel's bathrooms. 648 S.W.2d at 883. In reversing the judgment in favor of the hotel, the Court discussed the innkeeper-guest and common carrier-passenger relationships, but it did not discuss or mention the employer-employee relationship. Id. at 886-89.

The second case Meadows relied on was the New Jersey case of Goldberg v. Housing Authority of Newark . Goldberg involved a delivery person that sued the owner of a housing project after being assaulted on the property. 38 N.J. at 579, 186 A.2d 291. The plaintiff argued that the property owner, a public entity, had a duty to provide police protection at the property. Id. at 580, 186 A.2d 291. The case did not involve the question of whether an employer owed its employee a duty to protect from third-party criminal acts and provided little substantive discussion of the issue.

Goldberg did, however, include a discussion of Lillie v. Thompson , in which the United States Supreme Court reversed the dismissal of a claim under the Federal Employers’ Liability Act. 332 U.S. 459, 460, 68 S.Ct. 140, 92 L.Ed. 73 (1947). In Lillie , the petitioner...