Faheen, By and Through Hebron v. City Parking Corp.

• Decision Date: 28 July 1987
• Docket Number: No. 52523,52523
• Citation: 734 S.W.2d 270
• Parties: Melissa FAHEEN, by and through her Guardian, Mary C. HEBRON, and Sadie Faheen, Plaintiffs-Appellants, v. CITY PARKING CORPORATION, a corporation, and Mansion House Center South Redevelopment Company, a limited partnership, and Mansion House Center South Tower Redevelopment Corporation, Norman S. Altman, E.J. Ehrlich, Hart Perry, Pierre Heftler, general partners, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 270

734 S.W.2d 270

Melissa FAHEEN, by and through her Guardian, Mary C. HEBRON and Sadie Faheen, Plaintiffs-Appellants, v. CITY PARKING CORPORATION, a corporation and Mansion House Center South Redevelopment Company, a limited partnership and Mansion House Center South Tower Redevelopment Corporation Norman S. Altman, E.J. Ehrlich, Hart Perry, Pierre Heftler, general partners, Defendants-Respondents.

No. 52523.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 28, 1987.

George L. Fitzsimmons, St. Louis, for plaintiffs-appellants.

James P. Lemonds, St. Louis, for City Parking Corp.

James E. Whaley, St. Louis, for Mansion House Cent. South Tower Redevelopment Corp., Norman Altman, and Pierre Heftler.

E.J. Ehrlich, pro se.

Hart Perry, pro se.

CRANDALL, Judge.

Plaintiffs, Melissa Faheen, the sole surviving child of George Faheen, by and through her next friend Mary C. Hebron, and Sadie Faheen, the mother of George Faheen, brought this action for the wrongful death of George Faheen. Defendants, Mansion House Center South Tower Redevelopment Corporation, Norman S. Altman, Pierre V. Heftler, E.J. Ehrlich, and Hart Perry, are the general partners of Mansion House Center South Redevelopment Company, which owns the Mansion House Center apartment complex and its attached parking garage. Defendant, City Parking Corporation, operates the garage. Upon motion of defendants, the trial court dismissed with prejudice plaintiffs' second amended petition for failure to state a claim. Plaintiffs appeal from that order. We affirm.

We first consider the relevant allegations of fact in plaintiffs' petition. On October 16, 1981, George Faheen died in a car bombing which occurred in the Mansion House parking garage. George Faheen was a tenant of Mansion House with the right to use the parking garage. From January 1, 1976 to October 31, 1981, crimes had been reported on the premises of the Mansion House complex or in close proximity thereto. Those reported incidents of crime, which included arson, robbery, assault, burglary, stealing, and various misdemeanors, were known to defendants. The substantial majority of the reported crimes were crimes against property. Prior to George Faheen's death, there had not been a murder or a bombing at Mansion House.

Plaintiffs allege that defendants negligently failed to take reasonable precautions, in the form of adequate security or warning, to protect the tenants of Mansion House from criminal assaults in the parking garage by unknown third persons. Plaintiffs contend that this negligence was the proximate cause of George Faheen's death.

The salient issue is whether plaintiffs state a claim for actionable negligence. In an action for negligence, plaintiff must allege ultimate facts which, if proven, show (1) the existence of a duty on the part of defendant to protect plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 720 (Mo.App.1983).

In this appeal, we focus on the first element, the existence of a duty. As a rule, a party has no duty to protect another from a deliberate criminal attack by a third person. Meadows, 655 S.W.2d at 718; see generally Annot. 10 A.L.R.3d 619, 626 et seq. Policy reasons for this rule include: judicial reluctance to tamper with a traditional, common law concept; the notion that the deliberate criminal act of a third person is the intervening cause of harm to another; the difficulty that often exists in determining the foreseeability of criminal acts; the vagueness of the standard the owner must meet; the economic consequences of imposing such a duty; and conflict with the public policy that protecting citizens is the government's duty rather than a duty of the private sector. Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984) (citing Cornpropst v. Sloan, 528 S.W.2d 188, 195 (Tenn.1975)).

Despite this general rule, the law recognizes some obligations of a party to protect others against a deliberate criminal attack by a third person. See Meadows, 655 S.W.2d at 721; Restatement (Second) of Torts, Section 302B comment e (1965). These exceptions include, inter alia, obligations arising from "special relationships" or "special facts and circumstances." Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976); Meadows, 655 S.W.2d at 721.

The concept of a special relationship exists when one entrusts himself to the protection of another and relies upon that person to provide a place of safety. Nappier, 666 S.W.2d at 861; Virginia D. v. Madesco Investment Corporation, 648 S.W.2d 881, 885-886 (Mo. banc 1983). Special relationships which are recognized in Missouri include innkeeper-guest, common carrier-passenger, school-student, and sometimes employer-employee. Meadows, 655 S.W.2d at 721. In those situations, the relationship alone gives rise to the duty.

Plaintiffs concede that this is not a "special relationship" case. They assert liability under the "special facts and circumstances" exception. A special facts exception requires some relationship between the plaintiff and the defendant which encourages the plaintiff to come upon the defendant's premises.

In the case sub judice, the pleaded relationship is that of landlord and tenant. That relationship is not recognized in Missouri as a special relationship which, in itself, gives rise to a duty. Advanced Rental Centers, Inc., v. Philip Brown and Morelock-Ross Builders, Inc., 729 S.W.2d 644, 646 (Mo.App.1987). Rather, that relationship plus other elements may give rise to the duty to protect. See, e. g., Brown v. Nat. Supermarkets, 679 S.W.2d 307 (Mo.App.1984); Vorbeck v. Carnegie's at Soulard, Inc., 704 S.W.2d 296 (Mo.App.1986); Warren v. Lombardo's Enterprises, Inc., 706 S.W.2d 286 (Mo.App.1986).

The special facts exception includes two possible theories of liability: (1) an intentional infliction of injury by known and identifiable third persons; or (2) frequent and recent occurrences of violent crimes against persons on the premises by unknown assailants. Irby v. St. Louis County Cab Co., 560 S.W.2d 392 (Mo.App.1977); Scheibel, 531 S.W.2d at 288; Pizzurro v. First North County Bank and Trust Co., 545 S.W.2d 348 (Mo.App.1976); Brown, 679 S.W.2d at 309; Vorbeck, 704 S.W.2d at 296; Warren, 706 S.W.2d at 288. Under the first theory, the 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. Meadows, 655 S.W.2d at 721. Missouri and other jurisdictions generally recognize a duty in the known third person situation. This is consistent with the duty of an owner/occupier, whether he be a landlord or a shopkeeper, to exercise ordinary care to make his premises safe for customers. Nappier, 666 S.W.2d at 862.

In this case, however, the murderer of George Faheen is unknown. If plaintiffs state a claim, it is under the second theory of the special facts exception; that is, violent crimes committed by unknown assailants.

The first consideration is whether Missouri courts recognize this second theory. Only if that question is answered in the affirmative do we reach the question of whether or not plaintiffs properly pleaded that exception. In Meadows and Nappier, this court discussed the split of authority in other jurisdictions on the issue of whether frequent violent crimes on the premises of a business or in very close proximity thereto constitute special...