Schelp v. Cohen-Esrey Real Estate Services, Inc.

• Decision Date: 04 October 1994
• Docket Number: COHEN-ESREY,No. WD,WD
• Citation: 889 S.W.2d 848
• Parties: Wendy SCHELP, Appellant, v.REAL ESTATE SERVICES, INC., Respondent. 47847.
• Court: Missouri Court of Appeals

Page 848

889 S.W.2d 848

Wendy SCHELP, Appellant, v. COHEN-ESREY REAL ESTATE SERVICES, INC., Respondent.

No. WD 47847.

Missouri Court of Appeals Western District.

Oct. 4, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 29, 1994.

Application to Transfer Denied

Jan. 24, 1995.

David E. Larson, Kristine S. Focht, Watson, Ess, Marshall & Enggas, Kansas City, J. Kirk Rahm, Warrensburg, for appellant.

John E. Turner, Hanover & Turner, Kansas City, for respondent.

Before SMART, P.J., and KENNEDY and ULRICH, JJ.

ULRICH, Judge.

Cohen-Esrey Real Estate Services, Inc. (Cohen-Esrey), appeals from the judgment of $400,000 in favor of Wendy Schelp, following jury verdict, for injuries she sustained during an attack by an unknown intruder while she was reposed in the apartment in Warrensburg that she had leased from Cohen-Esrey. Cohen-Esrey claims eight points of error on appeal. Only point (1) is addressed because it is dispositive. Cohen-Esrey claims that the trial court erred in overruling its motion j.n.o.v. because it had no duty to protect Ms. Schelp from deliberate criminal attack by an unknown assailant.

The judgment is reversed.

While asleep in the early morning hours of June 27, 1990, in the apartment she had rented from Cohen-Esrey, Wendy Schelp was awakened by an intruder. Almost immediately after awakening, she was struck in her face by the intruder wielding a bottle, causing injury. Ms. Schelp did not see the intruder well enough to identify the person. The assailant ran from the apartment. Ms. Schelp ambulated to the front door of the apartment, leaned against it, and the door clicked shut. She opened the door and proceeded to a neighbor's apartment within the apartment complex. The police were called.

When the assault occurred, the front door lock of Ms. Schelp's apartment was not a part of the apartment complex master key system. Only three people possessed keys to the front door lock: Ms. Schelp, her sister, Kelly, and Tina Keith, Cohen-Esrey's manager at the apartment complex. Ms. Keith kept the key to the front door of Ms. Schelp's apartment in her purse and not in the key closet in her office located at the apartment complex.

During trial, Ms. Keith testified that she was aware of an occurrence where an unknown person entered the apartment of Ms. Schelp's sister within the apartment complex before Ms. Schelp became a resident. The intruder had surreptitiously set ahead clocks within the apartment, untied ribbons on stuffed animals, opened an umbrella, and hung a pair of underwear on the umbrella. On other occasions, a telephone list and bras were covertly removed from the same apartment.

Ms. Keith also testified that on two occasions before Ms. Schelp was assaulted, two unauthorized nonforced entries of Ms. Schelp's apartment had occurred. During the first instance, a bra, other underwear, and possibly a slip, were removed from the apartment. During the second clandestine instance, the items taken during the first occurrence were returned to the apartment.

Several witnesses testified that a maintenance man employed by Cohen-Esrey to work at the apartment complex had entered their apartments without authorization or prior notice before the date Ms. Schelp was attacked. A former occupant of the apartment complex testified about an occasion when shortly after she finished showering and was wrapped in a towel the maintenance man appeared in her apartment without authorization or notice of entry. She also testified that the maintenance man had entered her apartment on other occasions without prior notice to perform maintenance work. Another former resident testified that the maintenance man demonstrated to her how to enter through the locked front door of an apartment at the complex using a credit card. Still another former resident of the apartment complex testified that the maintenance man had entered her apartment on one occasion without prior authorization or notice.

Ms. Schelp testified that prior to the assault, she observed the same maintenance man in her apartment twice. On one occasion, shortly after she took a shower, the maintenance man entered her apartment without notice. On another occasion he entered her apartment to change a furnace filter without giving prior notice of his entry. Ms. Schelp stated that she had informed Tina Keith, apartment manager, that she was concerned about the maintenance man and what she believed to be his abnormal interest in her.

Ms. Schelp and her sister moved to the apartment in which the assault would later occur, and the lock to the front door was changed. Following the second unforced entry into the apartment, when the stolen undergarments were returned, Tina Keith hired an outside locksmith to install new locks on the front door of the apartment. These locks were not part of the master key system. Only Ms. Schelp, her sister, and Ms. Keith had keys to these locks. When the locks to the apartment were changed, Cohen-Esrey, through its manager, agreed that no employee of Cohen-Esrey would be allowed to enter the apartment without advance notice to Ms. Schelp and her authorization, and that Tina Keith would be in attendance when Cohen-Esrey employees were in the apartment.

When the assault occurred, three locks were on the front door of Ms. Schelp's apartment and a single lock was on the sliding glass door which opened onto a second story porch. The locks on the front door consisted of a doorknob lock, a dead bolt lock, and a chain lock. The sliding glass door to the second story apartment was the only other door of entry into the apartment. Additional pin locks had been installed on the sliding glass doors of every apartment at the complex in the summer of 1989, but, according to the testimony of an investigating police officer, a pin lock had not been installed on the sliding glass door to Ms. Schelp's apartment. Ms. Schelp testified that before retiring on June 26, 1990, she locked the door knob and the dead bolt locks on the front door to her apartment. She did not lock the chain lock. Her sister was not in the apartment when she retired, and she believed that her sister might return home that night. She also locked the sliding glass door to her apartment when she went to bed.

After receiving a telephone call at 11:00 p.m. the evening of June 26, 1990, during which she talked for approximately thirty minutes, Ms. Schelp slept. She was awakened by the intruder who struck her head with a bottle and ran from the apartment.

The jury rendered its verdict in favor of Ms. Schelp, judgment was entered, and the defendant appealed.

In its first point, Cohen-Esrey claims that the trial court erred "in overruling defendant's motion for judgment notwithstanding the verdict because, as a matter of law, defendant had no duty to protect plaintiff from the deliberate criminal attack by an unknown assailant in that the evidence established no special facts or circumstances or any other recognized exception to the general rule that a landlord is not responsible for criminal attacks on its tenants."

In determining whether the trial court should have directed a verdict or granted a judgment notwithstanding the verdict, the evidence is viewed in the light most favorable to Ms. Schelp, giving her the benefit of all reasonable inferences and ignoring Cohen-Esrey's contrary evidence except as it aids Ms. Schelp's case. Southwestern Bell Yellow Pages v. Robbins, 865 S.W.2d 361, 365 (Mo.App.1993). Withdrawing a case from the jury is a drastic measure which should not be taken unless reasonable minds, exercising fair and impartial judgment, would not differ on the issues. Id. A jury's verdict must not be set aside unless there is a complete absence of probative facts to support the jury's verdict. Id. at 366.

Ms. Schelp, to recover for negligence, must establish the elements of a negligence claim--that is, duty, breach of duty, causation, and damages. Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881, 886 (Mo. banc 1983). At issue in this point is whether Cohen-Esrey had a duty to protect Ms. Schelp from an unknown assailant's deliberate criminal attack.

Generally, one person owes no duty to protect another person from deliberate criminal attack by a third person. Stubbs v. Panek, 829 S.W.2d 544, 546 (Mo.App.1992). However, some obligations are imposed upon a party to protect others against deliberate criminal attack by a third party. Keenan v. Miriam Found., 784 S.W.2d 298, 302 (Mo.App.1990). These obligations emanate from "special relationships" or "special facts and circumstances," such that an act or omission exposes a person to an unreasonable risk of harm through the conduct of another. Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983). Additionally, obligation can result from a landlord's duty to exercise ordinary care to keep those portions of the premises that it retains in its control in a reasonably safe condition for the use intended. Nenninger v. Oran Life Tabernacle Church, 789 S.W.2d 530, 532 (Mo.App.1990).

"Special relationships" include those situations where a party entrusts himself to the protection of another and relies upon that person to provide a place of safety. Nappier v. Kincade, 666 S.W.2d 858, 861 (Mo.App.1984). The landlord-tenant relationship is not a "special relationship." Faheen v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App.1987). Therefore, Cohen-Esrey did not have a duty to protect Ms. Schelp solely because of the landlord-tenant relationship that existed between the parties.

The "special facts and circumstances" exception includes two theories: (1) an intentional infliction of injury by known and identifiable third persons; or (2) frequent and recent occurrences of violent crimes against persons on the premises by unknown assailants. Claybon v. Midwest Petroleum Co., 819 S.W.2d 742, 744-45 (Mo.App.1991). The only difference between these two theories is the knowledge...