Letsinger v. Drury College

• Decision Date: 26 February 2002
• Docket Number: No. SC 84172.,SC 84172.
• Citation: Letsinger v. Drury College, 68 S.W.3d 408 (Mo. 2002)
• Parties: John LETSINGER, Appellant, v. DRURY COLLEGE, Beta Iota House Corporation, and Joe Lee Daniel, Respondents.
• Court: Missouri Supreme Court

68 S.W.3d 408

John LETSINGER, Appellant, v.DRURY COLLEGE, Beta Iota House Corporation, and Joe Lee Daniel, Respondents.

No. SC 84172.

Supreme Court of Missouri, En Banc.

February 26, 2002.

Monte P. Clithero, Warren E. Harris, Springfield, for Appellant.

Lincoln J. Knauer, Springfield, Douglas R. Richmond, Micheal L. Matula, Kansas City, for Respondents.

Joe Lee Daniel, Pacific, pro se.

PER CURIAM.¹

On May 31, 1997, Joe Lee Daniel entered a fraternity house located at Drury College campus and shot plaintiff Letsinger.Letsinger sued, alleging negligence.Drury and Beta Iota's motions for summary judgment were granted.Because a genuine issue of material fact exists, the judgments are reversed and the case remanded.

STANDARD OF REVIEW

A motion for summary judgment will be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."Rule 74.04(c)(3).On appeal from a summary judgment, this Court reviews the record in the light most favorable to the party against whom judgment was entered.ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp.,854 S.W.2d 371, 376(Mo. banc 1993).This Court does not defer to the trial court's judgment granting summary judgment because review is de novo.Id. at 376.

FACTS

Drury owns land in Springfield.A fraternity house used by Beta Iota chapter of Kappa Alpha is located there.Letsinger lived there.There were female visitors earlier in the evening when the assault occurred.Some males who were not member of the fraternity began calling the house concerning the visitors.Letsinger did not know the callers.The conversations escalated.Letsinger ultimately indicated to the caller that he should either shut up or come over and fight.After this conversation, Letsinger became nervous about what was going to happen.He tried to close and lock the front door.Daniel arrived at the house, opened the front door, pulled a gun from behind his back, crudely alleged incest, and shot Letsinger.

Letsinger pleaded that Drury had the duty to "properly maintain and repair" the house, including "the front door, and to insure that basic security of its occupants and integrity of the building were maintained."Letsinger alleged Drury breached that duty, which proximately caused his injuries.Additionally, Letsinger alleged "Beta Iota, as lessee [of Drury], had a duty to properly maintain and repair the building and insure the basic security of its occupants ... if ... Drury ... failed to do so."He further alleged Beta Iota breached such duty, which also proximately caused his injury.

The contract between Drury and Beta Iota contained a maintenance paragraph:

9.Maintenance:[Drury] agrees to maintain the premises in a good state of repair, interior and exterior, within the limits of the reserve maintained for such purposes and within the discretion of [Drury] as to the need for repair, maintenance expenses and capital improvements, except that [Beta Iota] is required to make any repairs, including glass breakage, which may be necessary because of damage resulting from gross negligence, or wilful, intentional or malicious acts.

Another paragraph provided: "[Drury] and the authorized representatives of [Drury] shall have the right to enter the leased premises at all reasonable times to examine the condition thereof, but ... not ... in a manner to interfere unreasonably with the occupation by [Beta Iota]."

DISCUSSION

Defendants sought summary judgment on the theory that, by the undisputed material facts, Defendants had no duty to protect Letsinger from an intentional criminal act by Daniel.Defendants also argued that even if they had a duty to maintain and repair the house, Letsinger could not show that a breach of such duty proximately caused his injuries.

Letsinger concedes that, as a rule, a defendant has no duty to protect another person from a deliberate criminal attack by a third person.Stubbs v. Panek,829 S.W.2d 544, 546(Mo.App.1992);see alsoScheibel v. Hillis,531 S.W.2d 285, 288(Mo. banc 1976).However, an exception to this rule exists when: (1) a landlord-tenant relationship exists between two parties, and (2)"other `special circumstance[s]'[are present] warranting, as a matter of policy, the shift of responsibility for the tenant's security from the tenant to the landlord."Vittengl v. Fox,967 S.W.2d 269, 275(Mo. App.1998).In the landlord-tenant exception, "it is not the foreseeability of crime in general, but the existence of special circumstances, which gives rise to the duty [in a landlord] to provide security[ ]" for the tenant.Kopoian v. George W. Miller & Co., Inc.,901 S.W.2d 63, 74(Mo.App.1995)."Special circumstances" in this context means evidence that shows the risk of being attacked was increased by some action or failure of the landlord; i.e., the landlord's action or inaction presented the criminals with a particular focus or unique opportunity for their criminal activities.Id.

Here, unlike most cases, there are disputes about whether a landlord-tenant relationship exists and, if so, who was a tenant and who was a landlord.The relation of landlord and tenant is that which "arises from a contract by which one person occupies the real estate of another with his permission and in subordination to his rights[.]"Marden v. Radford,229 Mo. App. 789, 84 S.W.2d 947, 954(1935).The essentials of a landlord-tenant relationship are: (1) a reversion in the landlord; (2) the creation of an estate in the tenant either at will or for a term less than that which the landlord holds; (3) the transfer...