Nappier v. Kincade

Decision Date31 January 1984
Docket NumberNo. 45926,45926
PartiesKenneth NAPPIER and Pamela Nappier, Plaintiffs-Appellants, v. Emmett KINCADE, Madge Kincade and White Castle System, Inc., Defendants-Respondents.
CourtMissouri Court of Appeals

Joyce Y. MacDonald, Law Offices of J. Martin Hadican, St. Louis, for plaintiffs-appellants.

Ray E. White, III, Kortenhoff & Ely, St. Louis, for defendants-respondents.

KELLY, Judge.

Kenneth Nappier and Pamela Nappier, (hereinafter "appellants"), bring this appeal from an order of the Circuit Court of the City of St. Louis dismissing their petition for failure to state a claim upon which relief might be granted. For reason hereinafter stated we reverse and remand with directions.

Appellants instituted this cause of action under the Missouri Wrongful Death Statute, § 537.080, RSMo 1978. Counts I and V of the petition are the only counts involved in this appeal and relate only to appellants' claim against White Castle System, Inc., (hereinafter "respondent"). 1

The facts alleged are that on August 23, 1981, Darren B. Nappier, the son of appellants, entered respondent's restaurant on 6513 South Lindbergh, St. Louis County, Missouri, and purchased food; that while he was waiting to be served, one Emmett Kincade, using a loud voice, threatened to cause physical harm to him; that after Darren had been served and walked to the parking lot of the restaurant to consume his food, Emmett Kincade struck and kicked Darren about his body and head, and that on August 23, 1981, Darren died as a direct and proximate result of injuries inflicted by Emmett Kincade.

It was further alleged in both Counts I and V that the negligence of respondent was:

c. Defendant White Castle System, Inc., negligently and carelessly failed to restrain and control defendant Emmett Kincade and/or to remove him from its premises when it knew or, in the exercise of due care, should have known that defendant Emmett Kincade had acted in an irrational, hostile and threatening manner toward Darren B. Nappier.

d. Defendant White Castle System, Inc., negligently and carelessly failed to provide adequate security to protect its customer, Darren B. Nappier, when it knew or, in the exercise of due care should have known, that the said restaurant is frequented in the early morning hours by persons who are intoxicated and who act in an irrational, hostile and threatening manner toward other customers of said restaurant; and

e. Defendant White Castle System, Inc., negligently and carelessly failed to provide adequate security to protect its customers, when it knew or, in the exercise of due care, should have known, that, prior to the striking and kicking of Darren B. Nappier, altercations had occurred between other customers of the said restaurant.

Count V of appellants' petition contained these same allegations of negligence on the part of respondent in sub-paragraph a, b, and c of paragraph 2 of said count.

It is well settled in Missouri that a petition is not to be dismissed for failure to state a claim upon which relief can be granted unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. In reviewing the sufficiency of a petition on a motion to dismiss, we give the averments a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated. Irby v. St. Louis County Cab Co., 560 S.W.2d 392[1, 2] (Mo.App.1977).

A petition seeking damages for actionable negligence must allege ultimate facts, which, if proven, show (1) existence of a duty on the part of the defendant to protect plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 720 (Mo.App.1983). If the allegations in plaintiffs' petition, taken as true, do not satisfy the elements of actionable negligence, the trial court should dismiss the petition for failure to state a claim. Irby, supra, at p. 394.

Traditionally the law of torts has held that a private person has no duty to protect another from deliberate criminal attack by a third person. Ford v. Monroe, 559 S.W.2d 759, 762 (Mo.App.1977). Generally this has been extended to include business owners and their invitees. Policy reasons for not imposing such a duty include: judicial reluctance to tamper with a traditional common law concept; the notion that the deliberate criminal act of a third person is an intervening cause of harm to another; the difficulty that often exists in determining the foreseeability of criminal acts; the vagueness of the standard the owner must meet; the economic consequences of the imposition of such a duty; and conflict with the public policy that protecting citizens is the government's duty rather than a duty of the private sector. Cornpropst v. Sloan, 528 S.W.2d 188, 195 (Tenn.1975).

However, there are exceptions to this rule of law.

Generally the business owner owes a duty to exercise reasonable and ordinary care to make his premises safe for his customers, Howard v. Lundry, 591 S.W.2d 193, 197 (Mo.App.1979), and is subject to liability for bodily harm caused to his customers on the premises if he allows said customers to remain on the premises without reasonable care to make the harmful condition reasonably safe, or if he fails to give an adequate warning of the condition where the condition is one he has no reason to believe the customer could discover. Harbourn v. Katz Drug Co., 318 S.W.2d 226, 228-29 (Mo.1958); Turcol v. Shoney's Enterprises, Inc., 640 S.W.2d 503, 505 (Mo.App.1982); Restatement (Second) of Torts § 343 (1965).

Consistent with this duty of the business owner to exercise reasonable care to maintain safe premises, an affirmative duty to exercise reasonable care to protect a business customer from criminal attack has been recognized under special circumstances. The special circumstances exist where the business owner realizes, or should realize, through special facts within his knowledge, that criminal acts of a third party are occurring or are about to occur on his premises. In these circumstances the business owner is charged with a duty to take precautions to protect his customers from such criminal actions. Gregorc v. Londoff Cocktail Lounge, Inc., 314 S.W.2d 704, 707 (Mo.1958); Restatement (Second) of Torts, § 301, Comment B (1965).

This court, in Meadows v. Friedman R.R. Salvage Warehouse, l.c. 718, recognized that although there exists no general duty to protect a plaintiff against the intentional criminal conduct of unknown third persons, such a duty can arise when "special relationships" or "special circumstances" exist such that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another.

This is not a case of special relationship. That concept exists when one entrusts himself to the protection of another and relies upon that person to provide a place of safety. "Such relationships are usually delineated as those of innkeeper-guest, common carrier-passenger, school-student, and sometimes employer-employee." Meadows, supra, p. 721.

However, it may be one of "special circumstances." "Special facts include those in which a known dangerous or violent individual is present...

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