Harner v. Mercy Hosp. Joplin

• Docket Number: SC 100030
• Decision Date: 19 December 2023
• Citation: Harner v. Mercy Hosp. Joplin, 679 S.W.3d 480 (Mo. 2023)
• Parties: Steven HARNER, Respondent, v. MERCY HOSPITAL JOPLIN, Appellant.
• Court: Missouri Supreme Court

679 S.W.3d 480

Steven HARNER, Respondent,

v.MERCY HOSPITAL JOPLIN, Appellant.

No. SC 100030

Supreme Court of Missouri, en banc.

Opinion issued December 19, 2023

APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY, The Honorable John R. LePage, Judge

Mercy was represented by Rodney E. Loomer, Jeffrey T. Davis and Jeffrey D. Upp of Turner, Reid, Duncan, Loomer & Patton PC in Springfield, (417) 883-2102; and William Ray Price Jr., Jeffery T. McPherson and Paul L. Brusati of Armstrong Teasdale LLP in St. Louis, (314) 621-5070.

Harner was represented by Joseph P. Winget, Jenifer M. Placzek and Paul S. Jameson of Placzek Winget & Placzek LLC in Springfield, (417) 883-4000.

Robin Ransom, Judge

Introduction

Mercy Hospital Joplin appeals the circuit court’s judgment after a jury verdict for Steven Harner on his negligence claim alleging Mercy breached its duty to protect him from the criminal acts of a third person on Mercy property. Mercy asserts the circuit court erred in overruling its motion for judgment notwithstanding the verdict because Harner failed to make a submissible case on his negligence claim under the known third person exception to the general rule that businesses have no duty to protect invitees from the criminal acts of third parties. This Court has jurisdiction, Mo. Const. art. V, sec. 10, and holds Harner failed to make a submissible case because Mercy owed no duty to Harner under the known third person exception.¹ The circuit court’s judgment is reversed, and the case is remanded.

Background

At approximately 6:55 p.m. December 23, 2015, Kaylea Liska arrived at Mercy via ambulance with her boyfriend, who was to receive treatment at the hospital. After waiting for her boyfriend inside the hospital for some time, Liska became anxious and wanted to leave. Around 8 p.m., Liska left the hospital and entered the parking lot.

In the parking lot, Liska approached Floyd Bennett, a 79-year-old man waiting in his car, and asked him for a ride. Bennett declined, and Liska walked away but remained in the parking lot. Bennett did not report the incident to Mercy because he believed Liska was more of an annoyance than a threat.

At 8:04 p.m., Liska entered an unlocked vehicle belonging to Keith and Elnora Wooldridge. The Wooldridges were inside the hospital at the time. About 20 minutes later, the Wooldridges returned to the parking lot and found Liska inside their vehicle. Keith Wooldridge opened the door and said, "Lady, I think you’re in the wrong car." Without speaking to the Wooldridges, Liska swiftly exited the vehicle and ran away, taking a case of medication from the vehicle with her.²

The Wooldridges immediately went back inside the hospital and reported to Mercy employee Dee-Dee Baker at the front desk that someone had been in their car and they had been robbed. Baker called Mercy employee Jody Berry, who worked in dispatch for Mercy’s security department (Mercy security). Dispatcher Berry called Officer Ryan Meier with Mercy security and reported the incident to the Joplin police department.

Officer Meier arrived at the front desk shortly thereafter and spoke with the Wooldridges for approximately 20 minutes. Although the Wooldridges told Officer Meier they had been robbed, Officer Meier testified that what they described to him was a theft. The Wooldridges did not report that Liska had yelled at, threatened, or made any physical contact with them, or that she had a weapon. Officer Meier further testified that nothing the Wooldridges told him suggested Liska posed a threat to anyone at Mercy.

At 8:48 p.m., Officer Justin Lacombe with Mercy security conducted two rounds by vehicle of the Mercy parking lot to look for suspicious people entering vehicles after being advised of the Wooldridge report. At 8:54 p.m., Officer Meier went back into the parking lot with Keith Wooldridge to inspect the Wooldridges’ vehicle. After his last round, Officer Lacombe stopped at the Wooldridges’ vehicle to inspect it and discuss the incident with Officer Meier and Keith Wooldridge. Officer Lacombe left the scene at 9:01 p.m., parked the security vehicle, and entered the hospital. Officer Meier returned to the hospital with Keith Wooldridge at 9:04 p.m., then left to patrol the parking lot at 9:13 p.m.

Meanwhile, Liska remained in the parking lot after leaving the Wooldridges’ vehi- cle and returned to Bennett’s vehicle. Liska tapped on Bennett’s window to ask for a ride, and he again declined. Liska walked back into the parking lot. Like in the first occurrence, Bennett did not report the incident to Mercy.

Liska walked around the parking lot until she found another unlocked vehicle, this one belonging to Harner. Harner testified the driver side door of his vehicle did not lock, but the vehicle’s alarm would sound and flash once armed if someone opened the door. Harner further testified that, before going into the hospital, he left his Ruger .380 pistol - which was loaded and had no safety - in either the center console or the glovebox, neither of which were locked.³ Harner activated the car alarm before going into the hospital earlier that evening.

Liska entered Harner’s vehicle at 8:27 p.m. (while the Wooldridges were inside talking to Baker at the front desk) and set off the car alarm. The alarm lasted for approximately 55 seconds. Liska set off the alarm again about four minutes later, this time causing the alarm to go off for approximately 12 seconds. Despite the alarms, Liska remained in the vehicle until Harner returned at 9:18 p.m. When Harner returned, he opened the door and yelled at Liska to get out of his vehicle. A brief struggle ensued, and Liska grabbed Harner’s pistol, shot him in the neck, and ran off. Harner survived, though the bullet injured his carotid artery and struck his spine.⁴

Harner filed a negligence action against Mercy, alleging Mercy breached its duty under the known third person exception to protect him from Liska’s criminal acts while on Mercy’s property. Harner alleged Officer Meier told Dispatcher Berry to review surveillance footage after the Wooldridge report, but she failed to do so. The surveillance footage captured Liska exiting the Wooldridges’ vehicle and entering Harner’s vehicle. At trial, Dispatcher Berry acknowledged she could have observed these events before Harner was shot had she reviewed the footage when instructed to do so.

The jury returned a verdict for Harner and found $2 million in damages. The jury assessed 75 percent fault to Mercy and 25 percent fault to Harner. Accordingly, the jury awarded Harner $1.5 million in damages against Mercy. The circuit court entered judgment in accordance with the jury verdict. Mercy filed a motion for judgment notwithstanding the verdict⁵ or, in the alternative, a new trial, which the court overruled after argument. Mercy appealed and, after opinion by the court of appeals, this Court transferred the case pursuant to article V, section 10 of the Missouri Constitution.

Analysis

[1–4] In reviewing a circuit court’s decision on a motion for judgment notwith-standing the verdict, this Court determines whether the plaintiff made a submissible case by offering evidence to support every element necessary for liability. Brock v. Dunne, 637 S.W.3d 22, 26 (Mo. banc 2021).

"A case is submissible when each element essential to liability is supported by legal and substantial evidence." Id. (internal quotations omitted). "Whether the plaintiff made a submissible case is a question of law this Court reviews de novo." Id. (internal quotation omitted). In conducting this review, the Court views the evidence in the light most favorable to the plaintiff and disregards evidence unfavorable to the verdict. Id. at 27. However, this Court will not supply missing evidence or make unreasonable, speculative, or forced inferences from the evidence presented. Id.

On appeal, Mercy asserts the circuit court erred in overruling its motion for judgment notwithstanding the verdict. Mercy argues Harner presented insufficient evidence that Mercy owed a duty to Harner under the known third person exception to the general rule that businesses have no duty to protect invitees from criminal acts of third persons. This Court agrees and reverses.

[5–8] In any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant’s breach proximately caused the plaintiff’s injury. L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., 75 S.W.3d 247, 257 (Mo. banc 2002). At issue here is the element of duty. A duty of care arises when "there is a foreseeable likelihood that particular acts or omissions will cause harm or injury." L.A.C., 75 S.W.3d at 257 (quoting Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988)). Indeed, "[t]he touchstone for the creation of a duty is foreseeability." Id. Even so, "[w]here the existence of a duty is established, [ ] it is not one to protect against every possible injury which might occur." Id. "Rather, it is generally measured by whether or not a reasonably prudent person would have anticipated [the] danger and provided against it." Id. (internal quotation omitted).

[9, 10] As a general rule, businesses have no duty to protect invitees from the criminal acts of unknown third persons. Id. This is because such activities are rarely foreseeable. Id. There are limited exceptions to the general rule, however, when special facts and circumstances render injury foreseeable in a given case. Id. One such exception may arise when a business "knows, or has reason to know, that a third party is harming or is about to harm an entrant." Wieland v. Owner-Operator Sews., Inc., 540 S.W.3d 845, 848 (Mo. banc 2018) (emphasis omitted) (internal quotation omitted). This exception is sometimes referred to as the known third person exception.

[11] Under the known third person exception, a "duty may arise when a person, known to be violent, is present on the...