Krier v. Safeway Stores 46, Inc., 96-32
| Citation | 943 P.2d 405 |
| Decision Date | 31 July 1997 |
| Docket Number | No. 96-32,96-32 |
| Parties | 13 IER Cases 518 Lois Ann KRIER, as Personal Representative of the Estate of Daryl Dean Krier, Deceased, and for Lois Ann Krier, Timothy Krier, and Bonnie Douglas, Appellants (Plaintiffs), v. SAFEWAY STORES 46, INC.; Rodney Rusk; and Maurice W. Brown, Appellees (Defendants). |
| Court | United States State Supreme Court of Wyoming |
Philip A. Nicholas; Stephen N. Goodrich; and Steven K. Sharpe, Nicholas Law Offices, L.L.C., Laramie, for Appellants.
John A. Sundahl and Kay Lynn Bestol, Sundahl, Powers, Kapp & Martin, Cheyenne, for Appellees Safeway Stores 46, Inc. and Rodney Rusk.
Thomas G. Gorman and Dale W. Cottam of Hirst & Applegate, P.C., Cheyenne, for Appellee Maurice W. Brown.
Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.
The primary issue on review is whether, under the circumstances before us, a landlord or tenant owes a duty to protect persons on the property from criminal acts of third parties. In the early morning hours on November 25, 1992, Daryl Dean Krier (Krier), an employee at the Town and Country Safeway store in Cheyenne, Wyoming, was stabbed and killed by a burglar who had entered the store to steal cigarettes. Lois Ann Krier, as personal representative of Krier's estate, filed negligence claims against the premises lessee Safeway Stores 46, Inc. and the store manager Rodney Rusk, among others, also alleging that the owner and landlord of the premises, Maurice W. Brown, failed to maintain the premises in a reasonably safe condition. The district court granted summary judgment in favor of all defendants, holding that plaintiffs failed to We affirm.
establish a duty to protect Krier against criminal acts of a third person.
Appellants, Lois Ann Krier, as personal representative of the Estate of Daryl Dean Krier, and for Lois Ann Krier, Timothy Krier and Bonnie Douglas (appellants), present the following issues for review:
1. Whether the District Court erred in granting summary judgment in favor of the owner of the building for claims arising out of the death of Dean Krier.
a. Does a landlord owe a duty to business invitees or visitors to maintain premises leased to others in a reasonably safe condition when the premises are open to the public and the landlord retained joint control over common areas and the roof?
b. Is there a genuine issue of material fact with respect to whether the landlord was negligent in failing to remove a ladder like antenna or in failing to cover or install bars across a roof opening?
2. Whether the District Court erred in granting summary judgment in favor of the store manager for claims arising out of the death of Dean Krier. Is there a genuine issue of material fact with respect to whether the store manager was culpably negligent?
3. Whether the District Court erred in granting summary judgment in favor of the lessee of the building for claims arising out of the death of Dean Krier.
a. Does a lessee owe a duty to business invitees or visitors to maintain premises leased by it in a reasonably safe condition?
b. Is there a genuine issue of material fact with respect to whether the lessee was negligent in failing to remove a ladder like antenna adjacent to the building, failing to either cover or install bars across a roof opening, or in failing to install a burglar alarm?
Appellees, leaseholder Safeway Stores 46, Inc. (Safeway 46) and store manager Rodney Rusk (Rusk), respond with two issues:
1. Did the district court err in granting summary judgment in favor of co-employee Rod Rusk, when the Plaintiff was unable to present evidence that Rusk had intentionally committed an unreasonable act with a state of mind approaching intent to do harm in disregard of a known or obvious risk that was so great as to make it highly probable the harm would follow?
2. Did the district court err in granting summary judgment in favor of Safeway Stores 46, Inc., when the Plaintiff was unable to present any evidence that Safeway 46, a subsidiary of the employer, exerted any control over the premises or the operation of the store?
Appellee, landlord Maurice W. Brown (Brown), offers the following issue:
Did the District Court err when it granted Summary Judgment in favor of Appellee Maurice W. Brown on the grounds that under Wyoming law, Appellee Brown had no duty to protect the Appellant's decedent from a criminal attack where (1) no special relationship existed between Appellee Brown and the Appellant's decedent, and (2) the murder of the Appellant's decedent was not foreseeable to Appellee Brown?
Krier was stabbed to death shortly after commencing daily opening preparations at the Safeway grocery store located at the Town and Country Shopping Center just outside the city limits of Cheyenne, Wyoming. Although scheduled to arrive with another employee, Krier went into the store alone when his co-employee failed to report to work on time. After clocking in at the rear of the store, he encountered a burglar, Charles Ross (Ross), who stabbed Krier and fled the building. By the time Krier was discovered, he had died from the wounds inflicted by Ross.
The Town and Country Safeway store is the largest of several connected stores in the shopping center. Ross gained entry to the Town and Country Safeway store by climbing Appellants filed suit against numerous defendants, including Safeway 46, store manager Rusk, and the owner of the premises, Brown. Appellants claimed that despite Safeway 46's and Brown's knowledge that the presence of the antenna and the vulnerable condition of the skylight created a foreseeable danger from criminal actions of third parties, they did nothing to alleviate the danger. Appellants' claims against Krier's co-employee Rusk centered on allegations that Rusk was culpably negligent in failing to ensure that more than one person was present during the opening and closing of the store. The facts relating to the individual appellees will be presented in greater detail in the discussion portion of this opinion.
an antenna on the north side of the store, and once on the roof, cutting a hole in a fiberglass skylight panel to lower himself inside. In an affidavit submitted by appellants, Ross stated that this was the second time he had climbed onto the roof using the antenna, which he described as having "rungs like a ladder that make climbing easy." Ross also stated that prior to entering the building, he had "cased out" the store, checking for any indication that it was protected by a burglar alarm system
Each appellee filed a motion for summary judgment which appellants opposed. After lengthy briefing, the submission of substantial supporting material, and oral argument, the district court issued its decision letter granting summary judgment in favor of all appellees on November 29, 1995. An order granting summary judgment was entered on December 14, 1995, and this appeal followed.
Summary judgment is appropriate only when a review of the record in the light most favorable to the non-moving party reveals no triable issues of material fact and judgment is warranted as a matter of law. Smith v. Throckmartin, 893 P.2d 712, 714 (Wyo.1995) (quoting Baros v. Wells, 780 P.2d 341, 342 (Wyo.1989)). In determining whether summary judgment is proper, the non-moving party is entitled to have the evidence and all reasonable inferences accepted as true. Smith, 893 P.2d at 714. On appeal, this court is required to review the record de novo to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified summary judgment. Id.
Although summary judgment is not favored in negligence actions, it is appropriate when the plaintiff is unable to establish the existence of a duty on the part of a defendant. Newberry v. Board of County Com'rs of Fremont County, 919 P.2d 141, 144 (Wyo.1996) (quoting Duncan v. Town of Jackson, 903 P.2d 548, 550-51 (Wyo.1995)); Ortega v. Flaim, 902 P.2d 199, 204 (Wyo.1995). In this case, the district court determined that as a matter of law, appellants failed to establish that Brown or Safeway 46 owed a duty to protect Krier from Ross' criminal acts.
Safeway 46 is a corporation created as a result of the leveraged buy-out of the old Safeway corporation in 1986. While the original Safeway corporate structure conducted its entire operation essentially through one company, the new corporate structure created first, second and third tier subsidiaries organized generally along national, regional, and local geographic areas. The separation of the old Safeway into subsidiaries was to enable the sale of individual subsidiaries, if necessary, and to limit certain types of liability. Thus, the old Safeway corporation was transformed into many corporations, including the new parent corporation, Safeway, Inc. (new Safeway) and its third tier subsidiary, Safeway 46.
On November 26, 1986, the new Safeway entered into an Administrative Services Agreement with Safeway 46 which provides, in relevant part:
E. The Acquisition [of old Safeway] does, however, change the structure of some domestic asset ownership and operations in the New Safeway Group as compared with the pre-Acquisition Old Safeway Group organization. * * * The assets and operations of certain of the Old Safeway F. * * * the parties hereto desire to preserve in the New Safeway Group the centralized administrative and management services as formerly provided by Old Safeway * * *.
retail divisions have been transferred to groupings of subsidiaries. * * *
* * *
1. * * *
(a) * * *
In consideration of the [services] charge * * * New Safeway hereby agrees to provide to the First Tier, Second Tier and Third Tier subsidiaries various centralized administrative and management services * * *.
Appellants also submitted documentation that the assets and profits for the Town and Country Safeway store were...
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