L.A.C. v. Ward Parkway Shopping Center Co.
| Decision Date | 28 May 2002 |
| Docket Number | No. SC 83718.,SC 83718. |
| Citation | 75 S.W.3d 247 |
| Parties | L.A.C., a minor, by and through her Next Friend, D.C., Appellant, v. WARD PARKWAY SHOPPING CENTER COMPANY, L.P., et al., Respondents. |
| Court | Missouri Supreme Court |
Scott A. McCreight, Michael S. Ketchmark, Joseph K. Eischens, Kansas City, for Appellant.
Paul P. Hasty, Jr., Rebecca S. McGinley, David Curotto, Douglas R. Richmond Thpmas B. Weaver, Jeffrey T. McPherson, Casey O. Housley, Kansas City, for Respondents.
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.
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
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.
* * *
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 prepared on standard log forms, provided by the Manager.
D. Perform such other duties and enforce rules and regulations as are mutually agreed upon by the parties that are reduced to writing, and that are made available to the Security Officers assigned to each location by representatives of the Manager.
IPC agreed to bind its employees to a Policy and Procedures Manual published by IPC:
I. 3. J. Manager has adopted a comprehensive Security Orders Policy and Procedures Manual (herein "the manual".) The manual includes Manager's instructions to CONTRACTOR and a copy of Manager's Safety Regulations. CONTRACTOR and its employees shall be familiar with and will adhere to those instructions and regulations at all times. CONTRACTOR shall disseminate such manual to all Security Officers and shall insure that said Security Officers comply with the content thereof.
IPC agreed to be familiar with and adhere to these instructions and regulations at all times. Two passages from the manual expressly indicate:
The ultimate goal of any successful shopping center Owner, Developer or Manager is the continued patronage of customers to the mall. In each Center, Mall Management endeavors to create a safe, orderly atmosphere in which customers may relax and shop without undue concern for their own safety. In order to sustain and insure this positive atmosphere, the management of your Center has retained the services of IPC International Corporation to provide Mall Public Safety Services.
You have been chosen to be a member of the Public Safety Staff by individuals who feel that you have the potential to be a true asset to the organization-one who has the right combination of knowledge, experience, education, judgment and positive appearance to understand and perform the varied responsibilities of an IPC Mall Public Safety Officer. Given the proper "tools" of knowledge which follow in this manual, you will have everything that you need to perform your duties in an effective and professional manner. It is up to you to earn the respect and confidence of those for whom and with whom you work.
Finally, IPC also distributed a training manual to its employees, which stated:
The personal safety of yourself, fellow Officers, customers and tenants to the mall is the absolute priority at all times
* * *
Our clients are most concerned with the well being of visitors, customers and employees of the shopping center. It is for this reason that Public Safety personnel are present.
* * *
[T]he responsibility for the safety of life and property within the center is shared by tenant stores, civil authorities, center management (through the Public Safety Service) and each individual person who visits the center.
Plaintiff brought suit against all parties for ordinary negligence. She also sued GG and IPC for breach of contract as a third party beneficiary of the management and security contracts. After discovery, Ward Parkway Group moved for summary judgment and IPC moved for judgment on the pleadings. In support of its response to the motions, plaintiff submitted evidence that the mall management was put on notice of criminal activity at the mall, consisting of IPC...
To continue reading
Request your trial