Richardson v. Quiktrip Corp., WD 58884.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJoseph M. Ellis
Citation81 S.W.3d 54
PartiesMargaret Jaccard RICHARDSON, Appellant, v. QUIKTRIP CORPORATION, Respondent.
Docket NumberNo. WD 58884.,WD 58884.
Decision Date29 March 2002

Donald Thomas Taylor, Kansas City, for Appellant.

Diana Moore Jordison, Kansas City, for Respondent.

Before PAUL M. SPINDEN, C.J., HAROLD L. LOWENSTEIN, ROBERT G. ULRICH, PATRICIA BRECKENRIDGE, JAMES M. SMART, JR., JOSEPH M. ELLIS, EDWIN H. SMITH, VICTOR C. HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.

JOSEPH M. ELLIS, Judge.

On May 14, 1994, Margaret Jaccard Richardson was raped by an unknown assailant in the ladies' room of the QuikTrip Convenience Store at 7201 East Front Street in Kansas City, Missouri. On October 10, 1998, Ms. Richardson filed a Petition for Damages in the Circuit Court of Jackson County alleging that QuikTrip was negligent in disabling the restroom door lock, failing to provide adequate warning of the danger, and failing to provide other security measures to protect her. On October 7, 1999, QuikTrip filed a Motion for Summary Judgment asserting that it owed no duty to Ms. Richardson to protect her from the criminal acts of unknown third parties. On July 5, 2000, the trial court granted QuikTrip's Motion for Summary Judgment and entered judgment accordingly. Ms. Richardson (hereafter "Appellant") brings this appeal.

Our review of the trial court's decision to grant a motion for summary judgment is essentially de novo, and this court applies the same criteria as the trial court in determining whether summary judgment was properly granted. Robinson v. Missouri State Highway & Transp. Comm'n, 24 S.W.3d 67, 73 (Mo.App. W.D. 2000) (quoting ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). "Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law." Id. When considering appeals from summary judgments, we review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the party against whom judgment was entered. Id. "Where the record reasonably supports any inference other than those necessary to support a judgment for the movant, a genuine issue of material fact exists and the movant's motion for summary judgment should be overruled." J.M. v. Shell Oil Co., 922 S.W.2d 759, 761 (Mo. banc 1996). Viewed in the light most favorable to Appellant, the facts of this case are as follows.

At all times relevant to this opinion, QuikTrip owned and operated a 24 hour convenience store/gas station located at 7201 East Front Street in Kansas City, Missouri ("the store").1 The store was situated in a commercial area near the railroad tracks. Vagrants, bums and other non-customers would occasionally loiter on the premises.

QuikTrip provided restrooms for its patrons' use at the store. Prior to May 14, 1994, both the men's and women's restrooms at the store were accessible only from the outside through doors located on the side of the building.

Originally, the doors to the restrooms did not have locks. At some point, however, QuikTrip discovered that holes had been drilled in the stall partitions of the mens' restroom that were being used by an individual or individuals to watch customers as they relieved themselves. To protect its customers from this type of deviant criminal behavior, QuikTrip installed locks on the restroom doors that engaged whenever the doors were closed. As a result, customers were required to obtain a key from the store attendant in order to access the restrooms.

After the locks were installed, QuikTrip periodically experienced problems with customers walking off with the restroom keys. Eventually, the store supervisor and store manager tired of dealing with these inconveniences. They decided that the cheapest and easiest way to correct the problem was to remove the strikers from the locks so that the locks no longer functioned and keys were no longer necessary. Acting upon this solution, the locks were disabled and rendered ineffective.

Subsequently, at approximately 2:30 a.m. on May 14, 1994, Appellant and Kirk Richardson stopped at the store. Appellant went to use the women's restroom. After Appellant entered the restroom, Mr. Richardson went into the store to get some cigarettes. Once inside the restroom, Appellant attempted to lock the door but was unable to do so because the striker had been removed from the lock. Appellant then went into the stall in the restroom. She tried to lock the stall door, but that lock also did not function. Shortly thereafter, a man entered the women's restroom, pushed in the stall door and raped Appellant.

On October 10, 1998, Appellant filed a Petition for Damages in the Circuit Court of Jackson County alleging that QuikTrip was negligent in disabling the restroom lock, failing to provide adequate warning of the danger, and failing to provide other security measures to protect her. On October 7, 1999, QuikTrip filed a Motion for Summary Judgment asserting that it owed no duty to Appellant to protect her from the criminal acts of unknown third parties. On November 3, 1999, Appellant filed her Response and Suggestions in Opposition to QuikTrip's motion claiming that the attack on Appellant was foreseeable and that QuikTrip had created a dangerous condition by disabling the restroom lock.

On July 5, 2000, the trial court granted QuikTrip's Motion for Summary Judgment and entered judgment against Appellant. The trial court found that no special relationship existed between Appellant and QuikTrip that would give rise to a duty to protect her from the criminal actions of an unknown third party and that she had failed to present sufficient evidence of "frequent and recent similar, violent crimes at Defendant's location" to give rise to a duty based on special circumstances.

On appeal, Appellant claims the trial court erred in finding that special circumstances did not exist; in relying solely on the number of prior violent crimes committed on the premises; and in failing to consider other evidence relevant to whether the attack on Appellant was foreseeable. Based on a series of cases from all three districts of this court, the trial court determined that only evidence of violent crimes on the premises could establish a duty on the part of QuikTrip, that no other evidence was relevant to determining whether an attack on Appellant was sufficiently foreseeable to give rise to such a duty, and that Appellant did not present evidence of a sufficient number of violent crimes at the convenience store to establish a duty on the part of QuikTrip. Appellant contends that the trial court should have considered other evidence she presented in determining whether the attack was foreseeable and that the evidence reflects that the attack on Appellant was sufficiently foreseeable to give rise to a duty on the part of QuikTrip.

"Generally, there is no duty to protect business invitees from the criminal acts of unknown third persons." Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo. banc 1988). But Missouri case law has historically recognized exceptions to this rule which have arisen from "special relationships" or "special facts and circumstances." Faheen v. City Parking Corp., 734 S.W.2d 270, 272 (Mo. App. E.D.1987). Prior to 1988, cases addressing a business owner's duty to protect a business invitee from the violent criminal acts of unknown third parties2 where no special relationship existed would find "special facts and circumstances" only where it was shown that frequent and recent occurrences of violent crimes by unknown assailants had occurred on the premises of the business. See Id.; Warren v. Lombardo's Enters., Inc., 706 S.W.2d 286, 287 (Mo.App. E.D. 1986); Brown v. National Supermarkets, Inc., 679 S.W.2d 307, 309 (Mo.App. E.D. 1987). Accordingly, where no special relationship existed and the third party was not known to the business owner, a duty could only be established if the plaintiff presented evidence that numerous, similar violent crimes had recently occurred on the premises. This has been referred to as the violent crimes exception. Faheen, 734 S.W.2d at 273.

In 1988, however, the Missouri Supreme Court revised these standards when it last addressed the issue of a business owner's duty to protect business invitees from third party criminal acts in Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988).3 In Madden, the Court stated that, while there is generally no duty on the part of a business to protect business invitees from the criminal acts of unknown third persons, "a duty to exercise care may be imposed by common law under the facts and circumstances of a given case." Id. at 61 (emphasis added). The court went on to hold:

Consistent with the holding in Virginia D. [v. Madesco Inv. Corp., 648 S.W.2d 881 (Mo.banc 1983)], with the court of appeals decision in Brown, and with the rule established by the Restatement of Torts, the Court recognizes that business owners may be under a duty to protect their invitees from the criminal attacks of unknown third persons depending upon the facts and circumstances of a given case. The touchstone for the creation of a duty is foreseeability. A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Lowrey v. Horvath, 689 S.W.2d 625, 627 (Mo. bane 1985).4

Madden, 758 S.W.2d at 62.

As noted by this court in Becker v. Diamond Parking, Inc., 768 S.W.2d 169, 170-71 (Mo.App. W.D.1989), "[t]he essence of Madden is that a duty may arise whenever it is foreseeable that conduct of a known or unknown third person is likely to endanger the safety of a...

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