Groce v. Kansas City Spirit, Inc.

• Decision Date: 09 April 1996
• Docket Number: No. WD,WD
• Citation: 925 S.W.2d 880
• Parties: Larry GROCE, Marty Groce and Travis Groce, Appellants, v. KANSAS CITY SPIRIT, INC., Respondent. 51146.
• Court: Missouri Court of Appeals

Page 880

925 S.W.2d 880

Larry GROCE, Marty Groce and Travis Groce, Appellants, v. KANSAS CITY SPIRIT, INC., Respondent.

No. WD 51146.

Missouri Court of Appeals Western District.

April 9, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 28, 1996.

Application to Transfer Denied

Aug. 20, 1996.

Sylvester James, Jr., Brian C. Fries, Kenner & James, Kansas City, for appellants.

David R. Buchanan, Robert H. Houske, Brown & James, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and ULRICH and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Plaintiff Travis Groce suffered serious injury when he was attacked by an unknown third party after he left the Kansas City Spirit Festival. Mr. Groce and his parents (Plaintiffs) brought a negligence action against Defendant Kansas City Spirit, Inc., organizer of the Kansas City Spirit Festival (hereinafter "Festival"). The trial court granted summary judgment in favor of Defendant Festival on the ground that the assault did not occur on property owned or controlled by Defendant. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 1991, Plaintiff Travis Groce and two friends attended the Kansas City Spirit Festival. The Festival was being held in Liberty Memorial Park in Kansas City. The Park is located west of Main Street, east of Broadway, south of Pershing Avenue and north of Memorial Drive. The Festival organizers had erected a fence around the area of the Park in which the Festival activities were held. Entry to the fenced-in area could be obtained only at gates located at four locations around the fence perimeter. Each gate was normally staffed by a person selling tickets to the Festival.

At about 1:00 a.m., after spending several hours at the Festival, Mr. Groce and his friends joined a large number of other people leaving the fenced-in area of the Festival at Gate 2. The Festival was ending and the gate area was no longer being staffed. Mr Groce and his friends headed southeast toward Mr. Groce's vehicle, which he had parked east of Main Street and south of Liberty Memorial Park. To reach the vehicle, they crossed Memorial Drive and a grassy area south of Memorial Drive, until they reached the sidewalk that runs along the west side of Main Street. The Festival organizers had requested that the police block off this portion of Main Street with cement barricades to regulate traffic through the area, thus creating a pedestrian thoroughfare. Only limited vehicular traffic was allowed in this area. Mr. Groce and his friends joined a crowd of approximately 200 people walking down or across Main Street.

As they proceeded south on the sidewalk, they saw a group of 15 to 20 young men, all dressed in black and gold, sitting along a wall next to the sidewalk. Although the young men were talking loudly, there was nothing about their mannerisms that caused Mr. Groce and his friends to be concerned.

In part because this group of young men was blocking the sidewalk and in part because they had to cross Main Street at some point to get to their vehicle, the three friends turned to cross the blocked-off portion of Main Street. Just as they reached the middle of Main Street, one of the young men ran up from behind and struck Mr. Groce. Mr. Groce was seriously injured. He spent several weeks in a coma and was hospitalized for several months.

The assailant was never identified. Mr. Groce and his parents, however, brought suit against Defendant Festival, alleging that the Festival owed a duty to protect Mr. Groce from intentional criminal harm by third persons or to warn Mr. Groce that harm could occur if he attended the Festival. This duty was based upon the Festival organizers' alleged knowledge of incidents of crime that had occurred during and within the boundaries of the Festival in prior years as well as on the week-end of that year's Festival but prior to this incident.

The Festival sought summary judgment on the basis that the incident in which Mr. Groce was injured occurred in a public area outside the exclusive control of the Festival so that the Festival had no duty to protect Mr. Groce from the third-party assault of which he complains. In support, the Festival cited the deposition testimony of Mr. Groce and his two friends and that of two Festival employees: Timothy Smith, Executive Director of the Festival, and Peter Dreyfuss, Chairperson of the Festival's Production Committee.

Mr. Smith stated that the Festival was responsible only for the area inside the fence line. Anything on the other side of the Festival gate or outside the perimeter of the fence line was considered off-premises. He also testified that a security plan for the Festival was generated by the Kansas City, Missouri Police Department. The Department received input on the plan from Mr. Smith and from Mr. Dreyfuss, who was responsible for internal Festival security arrangements. Security forces consisted of mobile tactical response teams of on-duty Kansas City police officers who patrolled the area outside the fence. The Festival hired police response teams composed of pairs or squads of off-duty officers to patrol within the fence. These officers were assigned to move with the crowds and respond as needed. An off-duty officer was also posted at each gate at times when money was being collected. In addition, the Festival hired private security officers to fill specific posts and to act as rovers who could summon additional security officers if necessary. Police officers were also assigned some fixed posts, although police response teams would respond when needed.

The Festival guidelines did not directly prohibit any Festival security officer from going outside of the fence line if the officer felt it was part of his or her public responsibility of being a police officer to do so. Officers stationed at the admission gates were directed not to leave their posts, however, although they could report a disturbance to the command post, which would then dispatch a response team. Plaintiffs presented evidence that, on two occasions, off-duty police officers nonetheless responded to a security-related event which occurred outside of the fenced area.

Security was overseen at a security command post located in Trinity North Hospital. The Hospital was adjacent to the Festival grounds and had a door inside the fenced area by which Festival and security personnel could enter. The command post served as a center to coordinate internal (within the Festival fences) and external (outside the Festival fences) security and was run by an on-duty police officer. In addition, the building in which the command post was located served as a break area for off-duty police officers. The only Festival personnel permitted in the command post center itself were Mr. Smith and Mr. Dreyfuss, however.

At the request of the city police and traffic departments, the Festival organizers requested a permit to close the streets around the Festival. The Festival provided the barricades to block the streets. The barricades were manned by on-duty police officers.

The Festival contended that, based on these facts, it owed no duty to Mr. Groce because the attack on him occurred outside the fence which marked the outside perimeter of the property controlled by the Festival. Plaintiffs contended that the Festival premises extended beyond the fence and included the blocked-off area of Main Street where Mr. Groce was attacked. Alternatively, Plaintiffs contended that, even if the Festival's premises were considered to have ended at the fence line, it could be held liable for events occurring off of its premises upon a showing that the Festival controlled the area where the assault occurred and that it knew patrons would have to cross the blocked off area to get to their cars, yet failed to provide adequate security. They asserted the facts noted above showed such control.

The trial court granted judgment in favor of Defendant, finding that Plaintiffs were unable to show that the area in which Mr. Groce was assaulted was part of Defendant's premises or that Defendant was controlling pedestrian traffic in this area. Furthermore, the trial court found that, even if Defendant had control of this area, Plaintiff had failed to provide evidence to show that an assault of this type was foreseeable. This appeal followed.

II. LEGAL ANALYSIS

A. General Omission; Rules Regarding Liability For Criminal Attacks By Third Party.

In an action for negligence, the plaintiff must establish: (1) a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from that failure. Claybon v. Midwest Petroleum Co., 819 S.W.2d 742, 743 (Mo.App.1991); Faheen v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App.1987). The dispositive issue here is whether Plaintiffs can establish the first element, i.e., whether they can show that the Festival had a duty to protect Mr. Groce from injury.

Generally, the owner of a business property has no duty to protect an invitee from a deliberate criminal attack by a third person. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo. banc 1988); Keenan v. Miriam Found., 784 S.W.2d 298, 301 (Mo.App.1990). Policy reasons for refusing to impose such a duty 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.

Faheen, 734 S.W.2d at 272.

Missouri has recognized two major exceptions to this general rule. Under the first exception, usually...