L.a.C., minor v. Ward Parkway Shopping Center

Decision Date28 May 2002
Docket Number83718
Citation75 S.W.3d 247
PartiesL.A.C., a minor, by and through her Next Friend, D.C., Appellant v. Ward Parkway Shopping Center Company, L.P., et al., Respondents. SC83718 Supreme Court of Missouri 0
CourtMissouri Supreme Court

Appeal From: Circuit Court of Jackson County, Hon. K. Preston Dean

Counsel for Appellant: Scott A. McCreight, Michael S. Ketchmark and Joseph K. Eischens

Counsel for Respondent: Paul P. Hasty, Jr., Rebecca S. McGinley, David Curotto, Douglas R. Richmond, Thomas B. Weaver, Jeffrey T. McPherson and Casey O. Housley

Opinion Summary: In March 1997, 12-year-old L.A.C. went to Ward Parkway Shopping Center in Kansas City with a friend to see a movie. She alleges the following: after leaving the movie, a 15-year-old boy with whom she was talking grabbed her purse and ran off with it into a hallway. The boy, who she had met the previous weekend, told her he would not return her purse until she kissed him, which she did. He returned her purse, but as she turned to walk away, he grabbed her and said, "Let's do it." He then picked her up, carried her into a catwalk walkway connecting the mall to a parking lot and raped her. She screamed as he was carrying her off, but her friends nearby did not help because the boy was older and bigger and had a gun showing. Two of her friends found two different security officers employed by Ward Parkway's security company, IPC International Corporation, but the officers refused to help. L.A.C. reported the rape to the police, and the young man was arrested the next day and ultimately adjudicated as having committed the rape. L.A.C. sued Ward Parkway, IPC, and Ward Parkway's management company, G.G. Management, for negligence. She also sued IPC and GG for breach of their contracts with Ward Parkway. In support of her suit, L.A.C. submitted IPC incident reports and police records as evidence that the mall was put on notice of criminal activity at the mall. The court granted Ward Parkway's motion for summary judgment and IPC's motion for judgment on the pleadings on all claims. L.A.C. appeals.

REVERSED AND REMANDED.

Court en banc holds: There is no evidence in the record to establish that the mall or the security company knew L.A.C.'s assailant to be a violent individual or a particular threat to the safety of others prior to the incident involving L.A.C. The mall, however, did have a duty to take reasonable care to protect mall customers, including L.A.C., from violent criminal activities. This is the very purpose for which the mall contracted with IPC, which had a duty to take reasonable measures to protect L.A.C. once its officers were notified of a specific danger to her. As a third-party beneficiary, L.A.C. has a right to sue IPC for breach of its contract with Ward Parkway. She still has to prove that the measures undertaken by the mall and IPC were not reasonable in light of the circumstances and that any failure in implementing those measures caused injury to her.

Dissenting Opinion by Chief Justice Limbaugh:

This writer believes most of the previous crimes on Ward Parkway's premises are significantly dissimilar to the abduction and rape of a young woman. He would hold, therefore, they do not give rise to a duty to protect L.A.C. under the violent crimes exception to the general rule of non-liability. Because this writer finds no liability on the part of the mall, he also finds IPC is not liable to L.A.C. as a third-party beneficiary of its security contract with the mall.

Opinion Vote: REVERSED AND REMANDED. White, Wolff and Stith, JJ., concur; Limbaugh, C. J., dissents in separate opinion filed; Benton, J., concurs in opinion of Limbaugh, C. J. Teitelman, J., not participating.

William Ray Price, Jr., Judge

I. Summary

L.A.C., a minor, claims that she was raped at the Ward Parkway Shopping Mall. She brought suit against the owners, operators and managers of the mall and the security company hired by them to provide security services for the mall. The trial court granted summary judgment for the defendants, finding that they had no duty to protect plaintiff from the criminal acts of a third party.

We reverse, because: 1) this type of criminal action was foreseeable so that the owners and managers of the mall had a duty to take reasonable care to protect business invitees; 2) the contract between the owners and managers of the mall and the security company clearly and directly provided for the safety of the mall's business invitees and, as a third party creditor beneficiary, plaintiff can bring suit against the security company for breach of that contract; and 3) the security company had a duty to plaintiff and the other business invitees of the mall to exercise reasonable care in the provision of its security services.

II. Factual and Procedural Background
A.

The facts in this case are greatly contested. We are bound to review the record in the light most favorable to the party against whom summary judgment was entered. City of Hazelwood v. Peterson, 48 S.W.3d 36, 38-39 (Mo. banc 2001). Viewing the evidence most favorable to plaintiff, the facts are as follows.

On March 15, 1997, L.A.C., a twelve-year old minor, went to Ward Parkway Shopping Center to see a movie with her friend, A.G. After leaving the movie, she and a group of friends gathered in a common area. Also with the group was a fifteen-year old boy, whom plaintiff had met the previous weekend.

While she talked to this young man, he grabbed her purse and ran off with it into a hallway. She followed, demanding its return. The young man replied, "No, not till you give me a kiss." She complied, and the young man returned her purse. But as she turned to walk away, the young man grabbed her, and said, "Let's do it."

The young man picked her up and began to carry her. Plaintiff screamed, hitting him on the back and demanding to be put down. Friends nearby refused to help her because the boy was older and bigger and had a gun showing. The young man briefly put her down, but then said, "[W]e're going to do this," picked her up and carried her into the "catwalk," a walkway connecting the mall to a parking lot. In the catwalk, despite her struggles, the young man raped her.

After the plaintiff was picked up and began screaming, her friend went downstairs and within a minute found an IPC security guard. She told the guard that her friend was in trouble and needed help. The guard dismissed her, saying that the young man was just playing. A.G. then went upstairs and found another IPC officer near the arcade. After explaining what happened, that officer also dismissed her, accusing her of trying to "get some boys for messing with [the girls]."

After her second failed attempt to get help, A.G. saw L.A.C. again. At first, in a state of shock and warned by her assailant to be silent, plaintiff said nothing. However, after a couple of minutes, she broke down and cried, telling her friend that the young man had raped her. Plaintiff reported the rape to the police and received treatment that night at a hospital. Her assailant was arrested the next day and eventually found to have committed rape by the juvenile division of the circuit court.1

B.

Ward Parkway Shopping Center Company, L.P. (WPSCC) and W.S.C. Associates, L.P. (WSC) both own and operate the Ward Parkway Shopping Center (the mall), and G.G. Management (GG) provides management services at the mall pursuant to a management agreement (these parties will be referred to collectively as the Ward Parkway Group). IPC International Corporation (IPC) is a security company with whom GG contracted to provide security for the mall.

The contract between the mall management and IPC contains a number of relevant provisions. Two are especially important. First, IPC security officers are empowered to detain individuals when necessary to protect mall customers from risk of serious injury:

I. 3. H. Under normal circumstances, an employee or agent of the CONTRACTOR, shall avoid making an arrest of any kind; provided, however, the employees or agents of the CONTRACTOR may detain an individual when necessary to protect either that individual or mall customers or employees from risk of serious injury. [emphasis supplied]

Second, IPC and mall management both agreed to cooperate to determine the proper work hours and staffing to "provide adequate security to the mall."

I. 4. HOURS & STAFFING -- The daily and weekly schedule of security man-hours and coverage at each location shall be determined by the Manager, subject to input from CONTRACTOR. The hours and number of Security Officers required will change periodically. The Manager has the right to change hours and personnel coverage.

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VI. 5. Manager and Contractor shall agree upon the proper level of staffing needed to provide adequate security to Mall [sic]. Upon agreement, the staffing level shall be conclusively deemed for all purposes to be a material representation by Contractor to Manager that the staffing level is one which will provide full and adequate security to the Mall. CONTRACTOR will be able to provide additional security staff for grand opening events on an "as needed" basis. Officers will be in uniform, and ready for duty at the start of their assigned shifts. [emphasis supplied]

The contract also assigns specific duties to IPC security officers, including making frequent, random rounds of the premises to check for safety hazards.2 Security officers are required to be watchful for criminal activities and report any such observations to mall management:

I. 3. B. Report immediately to representatives designated by the Manager any unusual incidents, hazardous conditions, accidents, defects, suspicious activities, or criminal activities observed during the shift.

C. Prepare for the Manager at the end of each shift, a security log report noting therein all incidents, accidents, suspicious activities, hazardous conditions or criminal activities observed. Unless other provisions are made by the parties, all reports shall be...

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