L.a.C. v. Ward Parkway Shopping Center, WD58111

Decision Date17 April 2001
Docket NumberWD58111
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. WD58111 Missouri Court of Appeals Western District 0
CourtCourt of Appeal of Missouri (US)

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

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

Counsel for Respondent: Douglas R. Richmond, Casey O. Housley, Paul P. Hasty, Jr., and David Curotto

Opinion Summary: L.A.C., a minor, by and through her next friend and mother, D. C., appeals the circuit court's summary judgment for Ward Parkway Shopping Center Company, L.P. (WPSCC); W.S.C. Associates, L.P. (WSC); and G.G. Management Company, Inc. (GG) (collectively the owners/managers) on her claims against them for damages arising from her alleged abduction and rape at the Ward Parkway Shopping Center. L.A.C. also appeals the circuit court's granting the motion of IPC International Corporation (IPC), the company with which GG contracted for security for the shopping center, for judgment on the pleadings for failure to state a cause of action against IPC for damages arising out of the same incident.

REVERSED AND REMANDED.

Division Four holds: 1) To support her premises liability claims of negligence against the owners/managers of the shopping center, the appellant relied on the violent crimes exception to the general "no duty" rule, to establish a duty owed to her by the owners/managers. Limiting review to the criteria upon which the parties agree, 17 crimes in 25 months would be sufficiently numerous and recent to put the owners/managers on notice. As to the similar requirement, the crimes do not have to be identical, but they must share common elements sufficient to place the business owner on notice of the danger and alert it of the safeguards which are appropriate to the risks. Thus, the prior assaults which involved a weapon, or bodily harm or an attempt at bodily harm, would be sufficiently similar to a sexual assault or rape to put the owners/managers on notice. Likewise, the robberies involving a weapon, or bodily harm, or an attempt at bodily harm would also be sufficiently similar in that a business invitee who is the victim of a robbery is being subjected to violence or a threat thereof. Because the record would support a finding by a fact finder at trial that the violent crimes exception to the no-duty rule applied, summary judgment for the respondent was improper.

2) Although the trial court said that it was granting IPC's motion for judgment on the pleadings, in effect it actually disposed of the motion as if it were one for summary judgment, inasmuch as the parties submitted materials outside of the pleadings upon which the court relied in entering its judgment. The appellant's claim for negligence against IPC was based on the breach of a duty assumed by it pursuant to its contract with GG to provide security for the shopping center. After reviewing certain public policy factors, a fact finder at trial could reasonably find that IPC had a duty to protect the appellant from the criminal acts of unknown third persons. Under a given set of circumstances, a fact finder could find that IPC owed a duty of care, assumed under the terms of its contract with GG to provide security for the shopping center, to protect the appellant from criminal attacks such as her alleged abduction and rape. Accordingly, summary judgment for the respondent was error.

3) Inasmuch as this Court has determined that the appellant should have been allowed to proceed on her claim of negligence against IPC, this Court does not discuss the merits of the appellant's claim in Point III with respect to her breach of contract theory of recovery against IPC because summary judgment is only proper if IPC demonstrated that the appellant was not entitled to recover against it as a matter of law under any theory pled.

Edwin H. Smith, Judge

Opinion modified by Court's own motion on May 29, 2001. This substitution does not constitute a new opinion.

L.A.C., a minor, by and through her next friend and mother, D.C., appeals the circuit court's summary judgment for Ward Parkway Shopping Center Company, L.P. (WPSCC); W.S.C. Associates, L.P. (WSC); and G.G. Management Company, Inc. (GG), on her claims against them for damages arising from her alleged abduction and rape at the Ward Parkway Shopping Center (the shopping center), which was owned and managed by WPSCC, WSC, and GG (collectively referred to hereafter as the owners/managers). L.A.C. also appeals the circuit court's granting of the motion of IPC International Corporation (IPC), the company with which GG contracted to provide for security for the shopping center, for judgment on the pleadings for failure to state a cause of action on her claim for damages arising out of the same incident.

The appellant raises three points on appeal. In Point I, she claims that the trial court erred in granting summary judgment to the owners/managers of the shopping center on her negligence claims against them based on the court's finding that the appellant would not be able, as required to recover, to establish at trial that they owed a duty to her, as a business invitee, to protect her from criminal attacks by unknown third persons because, as a matter of law, on the undisputed material facts and the facts still in dispute, a reasonable fact finder could find that such a duty had been created. In Point II, she claims that the trial court erred in granting IPC's motion for judgment on the pleadings on her negligence claim against it based on a finding that the pleadings were insufficient to establish a duty owed to the appellant by IPC because her pleadings were sufficient to plead a cause of action for negligence against IPC based on a duty assumed in IPC's contract with GG to provide security for the shopping center. In Point III, she claims that the trial court erred in granting judgment on the pleadings in favor of IPC on her breach of contract claim because her pleadings were sufficient to plead a cause of action for breach of contract against IPC as a third party beneficiary to the contract between IPC and GG.

We reverse and remand.

Facts

L.A.C. is a minor, who on March 15, 1997, when she was twelve years old, visited the shopping center located in Kansas City, Missouri, with a friend, A.G. While there, L.A.C. was allegedly abducted from the shopping center and raped in a catwalk area just outside of the shopping center. As a result, on January 16, 1998, she filed a petition for damages, by and through her next friend and mother, D.C., against WPSCC, the owner of the shopping center; WSC, the manager of the shopping center;1 and IPC, the security company hired for the shopping center. She alleged that they were negligent in several respects in failing to protect her from the foreseeable risk of harm from the criminal attacks of unknown third persons.

In support of her petition, the appellant alleged that she and A.G. had gone to the shopping center on the night of March 15, 1997, to see a movie. After leaving the movie, she saw a young man with whom she had spoken at the shopping center the week before. The two sat down on a bench in the common area in front of J.M. Porters and were talking, when he leaned over and gave her a peck on the lips. She was startled, but did nothing. A few minutes later, he grabbed her purse and ran into the hallway next to J.M. Porters, with the appellant in pursuit. Halfway down the hallway, he stopped so that she caught up with him and said, "Give me back my purse." He said, "No, not till you give me a kiss." She agreed to kiss him once and also let him give her a hickey on her neck. He gave her purse back to her, and as she turned to walk away, he grabbed her arm, and said, "Let's do it." The appellant, not realizing what he was referring to, said, "Do what?" He repeated, "Let's do it," while looking her up and down, and she realized that he was referring to having sex. She became scared and said, "No." He responded, "No, come on." She repeated, "No." He said, "No, we're going to do this," and picked her up over his shoulder, ignoring her plea of "put me down, put me down," and pinned her legs down with his arms when she tried to kick him. As he carried her through a doorway of the shopping center, marked as an emergency exit, that led to the catwalk, she screamed and yelled, "Stop. Put me down."

Once outside, the appellant's attacker put her down, with her back against the wall. She tried to get away, but he grabbed both of her arms and pushed her against the wall hollering, "Stay still, stay still, don't move." She squirmed and jerked, asking him to "Stop. Leave me alone. Let me go." He ignored her and pinned her against the wall, trying to unbuckle her jeans. When he couldn't remove her pants because of her struggling, he said, "Forget this," and picked her up over his shoulder again, carrying her around to the other side of the wall and into a cubbyhole. There he threw her down onto the floor, following her down as she landed, placing his knee in her stomach and pinning her arms with his hands. When he removed his hands from her arms in order to remove her pants, she tried to push herself up on her elbows. He simply pushed his knee harder into her stomach, telling her repeatedly, "You better stop moving." She asked him, "Why are you doing this?" but he did not respond. When she tried to scream, he either placed his hand over her mouth or pushed his knee deeper into her stomach. Eventually, she was crying such that she could not scream anymore, and she thought that if she just lay there quietly, he would stop. He did not stop, and he raped her.

After the rape, he was very angry, yelling and swearing at the appellant and calling her a "bitch" while she sat on the floor crying. He eventually said, "Come on. Get up. Let's go," and pulled her up and walked her around the corner...

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