J.M. v. Shell Oil Co.
| Decision Date | 28 May 1996 |
| Docket Number | No. 78562,78562 |
| Citation | 922 S.W.2d 759 |
| Parties | J.M., et al., Appellants, v. SHELL OIL COMPANY, Respondent. |
| Court | Missouri Supreme Court |
Mark E. Goodman and Sanford J. Boxerman, Clayton, for appellants.
Bruce D. Ryder, John R. Musgrave, Vincent H. Venker, II, and Daniel J. Carpenter, St. Louis, for respondent.
Plaintiff J.M. was in the process of purchasing gasoline at a Shell convenience store and gasoline station in St. Louis County on October 25, 1992. She was abducted, sexually assaulted and shot in the head by an unidentified assailant. She was left for dead. However, she survived and brought this action. Defendant Shell Oil Company, the lessor and franchisor of the station, moved for summary judgment based on its claim that it was not a possessor of the property and had no right of control over H.T. Dunn Oil Company, the franchisee and lessee of the station. The trial court sustained the motion. Following opinion by the Missouri Court of Appeals, Eastern District, this Court granted transfer. The judgment is reversed.
The record is viewed in a light most favorable to the non-movant, and the non-movant is given the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine, 854 S.W.2d 371, 382 (Mo. banc 1993). Where the record reasonably supports any inference other than those necessary to support a judgment for the movant, a genuine issue of material fact exists and the movant's motion for summary judgment should be overruled. Id.
Shell leases the land on which the station sits from the George Wilson Trust. Prior to March 1, 1991, Shell operated the station. In 1984, Shell had redesigned the station, adding a food mart. At that time, the attendant was moved from a cashier's kiosk in the center of the gas pumps to a place inside the food mart. There had been a number of robberies at the station prior to October of 1992, as well as other less serious crimes and disturbances at or near the station. 1
On March 1, 1991, H.T. Dunn Oil Company leased the premises. In addition to a lease, Dunn and Shell entered into a dealer agreement. These documents contain detailed provisions regarding the operation of the station, including the following:
Specified hours of operation: Twenty-four hours each day.
....
Dealer shall be responsible for maintaining, as Dealer's Station, a place of business suitable for the exercise of the rights granted Dealer hereunder which shall be of an architectural design, style, color scheme and layout acceptable to and approved by Shell as being in accordance with Shell's customary motor fuel station standards and specifications.... Without Shell's prior written approval, Dealer shall not make any alterations to Dealer's Station or construct any additional buildings or structures thereat ....
Unless Dealer has already done so prior to Dealer's execution of this Agreement, Dealer shall ... satisfactorily complete Shell's initial training course designed for the operation of a motor fuel dispensing station.... Dealer shall, at Shell's request, subsequently participate in such advanced or refresher courses appropriate for a motor fuel dispensing station as Shell may offer from time to time.
....
Standards. Dealer shall operate Dealer's Station according to the following standards of operation and appearance developed by Shell, but the means and manner of performance shall be within the sole discretion of Dealer:
....
(c) Staffing. Dealer shall maintain an adequate and competent staff of employees, considering both the volume and nature of the business activity, to fulfill efficiently Dealer's obligations hereunder. Dealer shall have the responsibility to train Dealer's employees, and shall have available and utilize training equipment, materials and programs as made available by Shell from time to time for this purpose.
(d) Customer Complaints. Dealer shall conduct Dealer's operations in a professional and business-like manner in order to avoid customer complaints. Dealer shall promptly and courteously respond to any customer complaints received (including written responses, when appropriate) and take immediate action to correct or satisfactorily resolve each legitimate customer complaint.
(e) Maintenance-Housekeeping. Except as Shell may expressly have responsibility therefore under any separate agreement, Dealer shall at all times maintain Dealer's Station (including adjacent sidewalks and driveways, easements and all landscaped areas) and Dealer's own property and equipment thereat in good condition and repair, and keep the same (including the rest rooms) neat, clean, safe and orderly.
....
(g) Uniforms. Dealer and Dealer's employees shall neatly wear clean uniforms of a type and style approved by Shell.
(h) Lighting. Dealer shall use sufficient lighting and illuminated signs to provide full visibility of Dealer's Station, including enclosed areas, at all times while open for operation.
....
(i) Signs. Dealer shall have the right to display in a neat and orderly manner at Dealer's Station, but not affixed to the exterior of any building or the pole support(s) for the main identification sign(s), such briefly worded and professional-looking signs as are necessary to identify the products and services offered and their prices, but shall not display or use any other signs, posters, flags, pennants or other advertising devices without Shell's prior written approval, which shall not be unreasonably withheld.
(j) Vending and Display. Before installing or replacing any vending machines or display equipment for merchandising sundry convenience items at Dealer's Station, Dealer shall obtain Shell's prior written approval, which shall not be unreasonably withheld, as to its size, kind, appearance and placement. Video or other game machines are not permitted. Dealer shall not display or offer merchandise or paraphernalia which is morally offensive or distasteful to the general public.
(k) Loitering. Dealer shall keep Dealer's Station free from the loitering by persons who at the time have no proper business purposes thereon.
Image Excellence Book. Dealer acknowledges receipt from the Shell of ....
Shell's "Image Excellence" guidebook, which provides guidelines of objectives as to the operating and appearance standards established for Shell automobile service stations and motor fuel dispensing stations. Dealer shall maintain Dealer's Station in conformance with such book.... Shell may update such book from time to time by providing Dealer a copy of revised material....
To the extent reasonably necessary to observe the terms of this Agreement, Shell shall have the right, at all reasonable times, to enter Dealer's Station and to inspect the same, as well as such part of Dealer's books and records as may be material to a proper inquiry hereunder.
Shell also distributed a "Health, Safety & Environment Manual" to its dealers. That manual required the reporting of robberies or customer injuries at the service station. Included in the training manuals supplied by Shell to its dealers was a "Robbery Deterrence and Safety Training Manual" covering such topics as robbery prevention, reaction to robberies and a post-robbery strategy. This manual sets out the details and the manner in which safety of the premises is to be achieved.
As part of its inspection program, Shell conducted service station health and safety reviews. One of the safety review check sheets reads in part:
Armed robberies have been increasing at service stations recently. A major deterrent to potential armed robbers is a clean, uncluttered and well-lit station where the cashier can see outside and be seen clearly ...; All cashiers/attendants should be thoroughly trained on how to respond during and after a robbery.
Pursuant to the above agreements and policy manuals, Shell representatives inspected the station at least monthly and conducted point-by-point reviews and counseling of Dunn representatives regarding various aspects of the station operations.
Notwithstanding the dealer agreement, the lease and the policy manuals regulating details of how Dunn was to operate the station, the dealer agreement also contains the following paragraph:
Dealer is an independent businessperson, and nothing in this Agreement shall be construed as reserving to Shell any right to exercise any control over, or to direct in any respect the conduct or management of, Dealer's business or operations conducted pursuant to this Agreement; but the entire control and direction of such business and operations shall be and remain in Dealer, subject only to Dealer's performance of the obligations of this Agreement.
The lease provides:
Nothing in this Lease shall be construed as reserving to Shell any right to exercise any control over, or to direct in any respect the conduct or management of, the business or operations of lessee on the Premises....
It is upon the basis of the last two quoted paragraphs that the trial court granted summary judgment, apparently concluding that Dunn was not a servant of Shell Oil and that Shell Oil was not a possessor of the property.
Under most circumstances, a lessor of land is not subject to liability for...
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