Keenan v. Miriam Foundation

• Decision Date: 02 January 1990
• Docket Number: No. 56420,56420
• Citation: Keenan v. Miriam Foundation, 784 S.W.2d 298 (Mo. App. 1990)
• Parties: Carol A. KEENAN, Plaintiff-Respondent, v. MIRIAM FOUNDATION, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 298

784 S.W.2d 298

Carol A. KEENAN, Plaintiff-Respondent, v.MIRIAM FOUNDATION, Defendant-Appellant.

No. 56420.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 2, 1990.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 14, 1990.

F. Douglas O'Leary, Moser & Marsalek, and Christiana Rush, St. Louis, for defendant-appellant.

James P. Krupp, Robert Henry Pedroli, and Daniel Gauthier, St. Louis, for plaintiff-respondent.

I.

SIMEONE, Senior Judge.

This is an appeal by defendant-appellant, Miriam Foundation, from a judgment entered on January 18, 1989 by the circuit court of the City of St. Louis upon a verdict awarding plaintiff-respondent, Carol Ann Keenan, $35,000 damages for injuries sustained when she was assaulted and shot by an unknown assailant while on the premises of the Miriam Foundation, located in the City of St. Louis.We affirm.

II.

The Miriam Foundation is a not-for-profit corporation located on Skinker Boulevard in the City of St. Louis.It accepts donated merchandise which it then sells to customers.Carol A. Keenan had both donated and purchased merchandise, such as chairs and dishes, several times before the day she was injured, February 13, 1986.Mrs. Keenan lived in a subdivision about two blocks from the Foundation.The area in which she lived was a high crime area.A few days before February 13, 1986, Mrs. Keenan purchased some dishes.She was desirous of donating and delivering them to the Foundation.She inquired about bringing the dishes to the Foundation and was told to bring them around about 4:00 p.m., because then "there would be some men to help me unload [them]."The dishes were in boxes.She loaded up her "Rabbitt" and went to the Foundation.She parked in front of the shop.She went inside, and met an employee.The employee asked her if she would drive "to the back" so that someone could help her.Mrs. Keeenan replied that she"didn't really want to go back there" because of the character of the neighborhood and the employee said, "there would be somebody with [her]."She then drove to the "back yard area" and waited until someone unlocked the gate of the fence.The lot was enclosed by a twelve-foot, cyclone, barbed-wire fence.When the man opened the gate, he motioned her in.The gate was not closed.Mrs. Keenan drove onto the lot, got out of the car, and two men, employees of the Foundation, began unloading the boxes and taking them into the Foundation.At one point, one of the men dropped a box and "everything spilled out."The two men carried the goods inside and left Mrs. Keenan alone on the lot for some five to ten minutes.While she was alone, she saw a "movement" and heard a voice; two men were standing near her--one with his face covered with a ski-mask.One of the men said "drop it", meaning her purse.He grabbed the strap of her purse.Mrs. Keenan was then hit on her head at the temple, then she received another blow to her hand and a third blow to her neck and shoulder.One of the men had a gun.A shot was fired, and Mrs. Keenan was hit in her left leg.The two men ran.Mrs. Keenan went inside the shop for help.The police and an ambulance eventually came and she was taken to the emergency room of Barnes Hospital.The physicians decided not to remove the bullet from her thigh, so that the bullet remains in her leg.She has suffered pain, and even at the time of trial, the injury causes fatigue and inhibits her work.The assailants were never found.

One of the two men who helped Mrs. Keenan unload the boxes, Charles Schroeter, testified that it was part of his duties to protect the safety of individuals who pulled their cars into the back area to be unloaded, and that he did leave Mrs. Keenan there alone.

At trial, certain police reports showing that various crimes had occurred at the Foundation were admitted into evidence over the objections of appellant.Eighteen police reports were introduced showing previous criminal acts occurring on the premises between June, 1984 through 1985.At least ten of the reports involved shoplifting or stealing under $150.00 of various items, including clothing, a lamp and a chair.There were two incidents of purse snatchings, one from one of the witnesses, who had her purse taken while she sat in an automobile on the premises, and the other from one Ms. Coleman.There was evidence of a theft from the cash register in the amount of $80.00; and a theft of an automobile from the parking lot.All these police reports were objected to, first by a motion in limine prior to trial, and then during trial, on the ground they were irrelevant on the grounds that the reports show that the crimes were of a non-violent nature and show no violence involving a customer.The court overruled the objections to the reports stating that it had considered the cases of Faheen by Hebron v. City Parking Corp., 734 S.W.2d 270(Mo.App.1987);Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59(Mo. banc 1988);andDecker v. Gramex Corp., 758 S.W.2d 59(Mo. banc 1988).After concluding that "these stealings were close enough to type of crime we have here"--a purse snatching which escalated into an assault, the court overruled appellant's objections.In addition to the police reports, the then floor manager of the shop testified that her husband's automobile was stolen "on more than one occasion."

A part-time security guard, Brian Troupe, testified that on one occasion, after he began working at the Foundation, three youths were in the shop causing some "problems."He asked them to leave; they"got hostile" and went outside.Outside, one of the youths picked up a brick and "cocked it back with his arm," and Troupe told him "if he threw the brick, I would shoot him."On another occasion, a man was inside the shop attempting to put clothing under his coat, and Troupe asked him to leave.The man became insulting, and took a swing at Troupe.Troupe "slammed" him down to the pavement.Troupe reported this incident to the Miriam "people."

At the close of the plaintiff's case, appellant filed a motion for a directed verdict on the ground that plaintiff failed to prove any kind of "violent or frequent violent" crimes which would create a duty on the part of the defendant.

After instructions, the jury returned a verdict in favor of Mrs. Keenan in the amount of $35,000.In proper time, Miriam filed its alternative motions for "judgment notwithstanding the verdict" and for a new trial.

III.

On appeal, Miriam contends that the trial court erred in overruling its motion for a directed verdict at the close of the evidence and its motion for judgment notwithstanding the verdict because plaintiff produced no substantial evidence of "violent crimes" against individuals on its premises, either as customers or otherwise, prior to the incident in which plaintiff was injured, hence no duty toward plaintiff was breached.Miriam urges that under the present state of the law, evidence showing only shoplifting, stealing, thefts, and purse snatchings are not sufficient to make a submissible case because the stealing incidents did not involve violent crimes directed toward customers, and the two purse snatchings, while involving personal confrontations entailed no violence or injuries.

Alternatively, appellant contends it is entitled to a new trial because the admission of the police reports showing the thefts and purse snatchings was irrelevant and prejudicial.

The respondent, Mrs. Keenan, contends that the judgment should be affirmed because of a "special relationship" or that "special circumstances" existed since, by the actions and statements of its employees, Miriam assumed a duty to provide for the plaintiff's safety.She argues that (1) the facts and circumstances "along" with the incidents of criminal activity prior to plaintiff's injury made the injury foreseeable, (2)plaintiff entrusted her safety to the appellant and "relied" on appellant's express and implied assurances of safety, (3) Miriam breached its duty by exposing her to an unreasonable risk of harm by leaving her alone in the back area with the gate open; and (4) any question of the admissibility of other incidents of crime should be decided in her favor because the admission of this evidence was not prejudicial, but only cumulative.

Respondent contends, therefore, that, under the facts, a duty was assumed by appellant to provide for her safety when she was left alone in the back area because appellant could have foreseen that she was exposed to an unreasonable risk of harm.Hence, the admission of the police reports was relevant.

There are two issues to be resolved in this proceeding: (1) whether, under the facts, Miriam assumed a duty to provide for the safety of plaintiff and failed to carry it out, and (2) whether the evidence of prior non-violent crimes contained in the police reports and other incidents are relevant and admissible in evidence.

IV.

We address the issues in inverse order.As a general rule, a business is under no duty to protect an invitee from a deliberate criminal attack by a third person.Madden, 758 S.W.2d at 61;Meadows v. Friedman Railroad Salvage Warehouse, 655 S.W.2d 718, 721(Mo.App.1983);Warren v. Lombardo's Enterprises, Inc., 706 S.W.2d 286(Mo.App.1986);see generally, 10 A.L.R.3d 619, 626.This is true even though the area is one of "high crime."Irby v. St. Louis County Cab Co., 560 S.W.2d 392, 395(Mo.App.1977).There are numerous policy reasons for this principle.SeeNappier v. Kincade, 666 S.W.2d 858, 860(Mo.App.1984);citing, Cornpost v. Sloan, 528 S.W.2d 188, 195(Tenn.1975);Faheen, 734 S.W.2d at 272.

Despite this general principle, it has come to be recognized that there are some obligations imposed upon a party to protect others against a deliberate criminal attack by a third person.Meadows, 655 S.W.2d at 721;Madden, 758 S.W.2d at 61;Restatement (Second) of Torts, § 344.These exceptions to the general...