Kopoian v. George W. Miller & Co., Inc.

• Citation: 901 S.W.2d 63
• Decision Date: 14 March 1995
• Docket Number: No. WD,WD
• Court: Court of Appeal of Missouri (US)
• Parties: Grace KOPOIAN, Jerry Mee and Harry D. Callicotte, Respondents, v. GEORGE W. MILLER & COMPANY, INC., Appellant. 47800.

Page 63

901 S.W.2d 63

Grace KOPOIAN, Jerry Mee and Harry D. Callicotte, Respondents, v. GEORGE W. MILLER & COMPANY, INC., Appellant.

No. WD 47800.

Missouri Court of Appeals Western District.

March 14, 1995.

As Modified May 30, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 30, 1995.

Application to Transfer Denied

July 25, 1995.

Jeffrey A. Burns, Kansas City, for appellant.

Ronald J. Stites, Kansas City, for respondents.

Before SMART, P.J., and KENNEDY and ULRICH, JJ.

SMART, Presiding Judge.

This appeal of a negligence action arose out of a robbery and assault which left three people badly injured in the early morning hours of December 7, 1986. Defendant George W. Miller & Co., the owner of townhouse apartments in Kansas City, appeals a verdict in favor of tenants for breach of a landlord's duty to provide security against criminal assaults. The case involves the issue of whether Missouri has abrogated the rule that landlords generally have no duty to provide tenants with security against criminal acts in the absence of "special circumstances" giving rise to that duty. Defendant contends on appeal that plaintiffs failed to make a submissible case of liability. Judgment reversed.

Defendant George W. Miller & Co., Inc. ("Miller") owns some townhouse duplexes in mid-town Kansas City. At the time of the assault in question, Plaintiff Grace Kopoian resided in one of Miller's duplexes at 4505 Washington. Her son, H.D. Callicotte, and her friend, Jerry Mee, resided with her. At about 1:30 a.m. on December 7, 1986, Callicotte, a law student, returned home from a late night of studying for examinations.

It was raining as Mr. Callicotte parked his car on the street near the townhouse. Mr. Callicotte then hurried in the rain to the porch of his townhouse, carrying his books. He opened the screen door with his left hand and propped the screen door against his right shoulder while unlocking the townhouse door with his right hand. As he unlocked the door, Mr. Callicotte received a sudden and forceful blow to the back of the head. The attacker, Harold Releford, had been completely unseen until a split-second before the blow to the head, when Mr. Callicotte had caught a "flash" of movement in his peripheral vision, almost simultaneous with the blow to the head. Upon being struck, Callicotte crumpled against the door he was just unlocking. The weight of his body pushed it open, and he fell into the front hallway of the townhouse. Releford, armed with a baseball bat (with which he had delivered the first blow), stepped into the townhouse and continued the attack. Mr. Callicotte put up his arms to protect himself, and was hit again, the blows breaking his arms. Mr. Callicotte's mother and Jerry Mee were in the living room adjacent to the area of the on-going assault. As Ms. Kopoian and Mr. Mee came to the aid of Mr. Callicotte, Releford jumped over Mr. Callicotte and began to strike Ms. Kopoian and Mr. Mee with the baseball bat. While Releford was assaulting Kopoian and Mee, Callicotte crawled to a piece of furniture and grabbed a cushion. Callicotte charged back at Releford, trying to hold the cushion as protection, and hoping to get his hands on Releford's neck. Releford pushed Callicotte off and hit him again with the bat, knocking him down again, and struck him additional times. Releford then turned Callicotte over, took his wallet and left the apartment. Releford was later apprehended and convicted. ¹

The assault at 4505 Washington shared some characteristics with a similar incident which occurred earlier the same night in another area of town. In that case, a family named Breeding had returned home from an outing and pulled in their driveway. Mr. Breeding went to the porch to unlock the door so that he could then return to the car and help bring in the young children, who were sleeping. While Mr. Breeding was on his well-lighted porch, Releford came running across the property with his baseball bat poised for attack. Mrs. Breeding observed Releford and screamed to her husband, alerting him to Releford's impending attack. Mr. Breeding turned and dived at Releford. Although Breeding was larger than Releford, Releford prevailed. Breeding said that rather than try to run from Releford and risk getting hit from behind with the fat part of the bat, he tried to just keep "going at" Releford to try to knock the bat out of his hands. He was hit several times in the arms and hands. Releford then hit him solidly in the head, knocking him unconscious. Releford rolled the victim over, extracted his wallet, and ran away. About an hour later, Releford perpetrated the attack at Ms. Kopoian's residence.

In this case, Kopoian, Mee and Callicotte sued the Defendant Miller, their landlord, on a theory of premises liability. Plaintiffs submitted their case on three allegedly dangerous conditions in the premises: a defective porch light, a shrub on the north side of the porch that allegedly had been allowed to grow too tall, and the absence of a deadbolt lock on the door to the townhouse. ² Plaintiffs contended that Miller retained control over the porch light, the shrub, and the installation of door locks. The conditions alleged, argued plaintiffs, were dangerous in that they created a reasonably foreseeable risk of danger of criminal assault, and were a joint and concurring cause, along with Releford's actions, of plaintiffs' injuries. The theories related to the bush and the light were that their condition may have prevented Callicotte from seeing Releford as the attacker approached, and that they therefore may have denied Callicotte an opportunity to overcome Releford. The theory related to the lock was that if the door had been fitted with a deadbolt lock it would have taken Callicotte longer to get the door unlocked, with the result that the attack would have occurred only on the porch and would not have moved to the interior of the apartment. This, they say, would have protected Mr Mee and Ms. Kopoian, although it would have made no difference as to Callicotte.

Mr. Mee, a victim of very serious injuries, took his own life while the case was pending. Ms. Kopoian was named personal representative for Mr. Mee, and she was substituted as the named plaintiff for Mr. Mee on April 23, 1991. The case was tried in February, 1993. At the conclusion of jury deliberations, the jurors found in favor of each plaintiff and awarded Ms. Kopoian $150,000.00 in damages, the estate of Jerry Mee $400,000.00 in damages, and Mr. Callicotte $75,000.00. Defendant's motion for judgment notwithstanding the verdict was denied. Defendant did not file a motion for new trial. This appeal follows.

Defendant raises several issues on appeal. First, defendant contends that the court erred in failing to direct a verdict for the defendant for the reason that no evidence was introduced which could give rise to a duty on the part of defendant to protect plaintiffs from the random criminal attacks of a person such as Releford. Defendant also complains that plaintiffs failed to show that the conditions complained of were causally related to the injuries sustained by plaintiffs. ³ We have concerns about both causation and duty in this case, but because duty is the more fundamental issue, for the court we devote our analysis to that issue.

Duty to Provide Security

The verdict directing instruction submitted to the jury the issue of whether, by virtue of the state of the bush near the front door (taller than two feet) and of the porch light (defective) and of the door (lacking a deadbolt), the premises were not reasonably safe. Thus, the jury was asked to decide whether a legal duty existed by judging whether the premises were "reasonably safe."

Traditionally, landlords have been under no duty to provide security for tenants from the criminal activities of third persons. An exception to this rule exists, however, in the case where a duty has been found to have arisen from particular circumstances, such as the landlord's knowledge of previous violent crimes on the landlord's premises. Advance Rental Centers, Inc. v. Brown, 729 S.W.2d 644 (Mo.App.1987). Other special circumstances giving rise to a duty may consist of those that exist when the misfeasance of the landlord creates a circumstance of extraordinary danger or enhances the risk of the tenant's victimization beyond the risk of crime victimization generally. Annotation, Private Person's Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619 (1966). It is held that outside of special circumstances, there is no duty to provide security guards, bars on windows, or exterior lighting, as a precaution against crime. Id. A study of the landlord's duty to light common areas, for instance, reveals that historically, the landlord has had no general duty to illuminate common areas. Weinel v. Hesse, 174 S.W.2d 903 (Mo.App.1943). A duty to illuminate common areas may arise out of the fact that illumination is necessary to prevent injury where there is a physical defect in the premises, such as a broken step. Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752 (1936). It has also been held that, where a landlord voluntarily assumes a duty of providing lighting in common areas, the duty must be performed with reasonable care. Sherman v. Bobrecker, 322 S.W.2d 898 (Mo.1959) (landlord liable when tenant fell over child's bicycle in dark lobby of building). These cases have not, however, previously been applied to the prevention of crime. Generally, the courts have declined to hold that a landlord has a general duty to illuminate common areas for security purposes. See, e.g., Stanley v. Town Square Coop., 203 Mich.App. 143, 512 N.W.2d 51 (1993) (association not liable for injuries to visitor assaulted in poorly lit, unfenced parking lot); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994) (landlord not liable to tenant raped in apartment who...