Smoote v Sinclair Oil Corporation
| Decision Date | 21 December 1999 |
| Docket Number | ED74302 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Edward Smoote, Plaintiff/Respondent/Cross Appellant, v. Sinclair Oil Corporation, Defendant/Appellant/Cross-Respondent. Case Number: ED74302/74303 Missouri Court of Appeals Eastern District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis County, Hon. David C. Mason
Counsel for Appellant: Ronald C. Willenbrock
Counsel for Respondent: Karen A. Greeburg and Michael J. Schaller
Opinion Summary: Defendant Sinclair Oil Corporation appeals a jury verdict in favor of plaintiff Edward Smoote awarding him damages for injuries sustained when he was shot by an unknown gunman on Sinclair Oil's property. Smoote cross-appeals, claiming the trial court erred in refusing to submit punitive damages to the jury.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Division Three holds: (1) Smoote's claim is not barred by the "firefighter's rule," which precludes recovery by public safety officers in certain situations, because Smoote was not brought into contact with the emergency situation solely by reason of his status as a police officer. (2) Smoote, an invitee, proved the existence of special facts and circumstances necessary to establish Sinclair Oil's duty to protect him from a third party criminal attack. (3) The trial court did not err by refusing to submit Sinclair Oil's comparative fault instruction. (4) The trial court did not err by allowing Smoote to read into evidence summaries contained within police reports. They were admitted under the Uniform Business records as Evidence Act and were non-hearsay. (5) The trial court's failure to strike a police sergeant's opinion testimony did not constitute error. (6) The trial court did not commit instructional error with respect to an instruction that allowed the jury to award future damages, an instruction that did not define certain terms, and the verdict director. (7) Sinclair Oil's constitutional challenges are either without merit or unpreserved. (8) The trial court erred in failing to submit the issue of punitive damages to the jury. Under the facts, reasonable minds could differ as to whether the record demonstrates clear and convincing evidence of Sinclair Oil's complete indifference to or conscious disregard for its customers' safety.
Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Simon, CJ. concurs, and Crane, J., dissents in a separate opinion.
Opinion modified by Court's own motion on February 29, 2000. This substitution does not constitute a new opinion.
Defendant Sinclair Oil Corporation appeals a jury verdict in favor of Plaintiff Edward Smoote awarding Plaintiff $375,000.00 in damages for injuries Plaintiff sustained when he was shot by an unknown gunman on Defendant's property. Defendant raises numerous allegations of error on appeal, including that the trial court erred in denying Defendant's Motion for Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict ("JNOV") because: (1) Plaintiff's claim is barred by the "fireman's rule"; (2) Plaintiff failed to prove the existence of "special facts and circumstances" necessary to establish Defendant's duty to protect Plaintiff from criminal attack; (3) extending a duty to Defendant to protect Plaintiff against criminal attacks by unknown third parties is both unconstitutional and void as against public policy; and (4) the trial court erred in instructing the jury in that: (a) instruction number 9 failed to require a finding that a danger existed on Defendant's premises greater than everyday danger and allowed the jury to speculate as to the terms "danger" and "reasonably safe," (b) instruction number 6 allowed Plaintiff to recover future damages despite the lack of evidence supporting such damages, and (c) the verdict form improperly contained prejudicial language indicating it was submitted by Plaintiff and given by the judge.
Defendant also contends that the trial court erred in: (5) refusing to submit a comparative fault instruction; (6) allowing Plaintiff to read into evidence hearsay statements contained within police reports; and (7) failing to strike Sergeant Donald Cummings' opinion testimony, because Plaintiff never identified him as an expert and his testimony was both prejudicial and surprising to Defendant.
Plaintiff cross-appeals, claiming that the trial court erred in refusing to submit a punitive damages instruction to the jury because Plaintiff presented clear and convincing evidence of Defendant's complete indifference to or conscious disregard for the safety of its invitees. We affirm in part, and reverse and remand in part.
Defendant owned and operated a service station located at 1401 East Grand, which is known as a "high crime area" within the City of St. Louis. In addition to selling gasoline, Defendant also operated a convenience store, which sold a variety of sundry items, and made public pay telephones available for the use and convenience of its customers and the general public. Defendant earned income from the public pay telephones, equaling twenty percent of the revenues Southwestern Bell collected from the pay phone.
At approximately 8:40 p.m. on August 20, 1994, Plaintiff, an off-duty police officer employed by the St. Louis Metropolitan Police Department, stopped at Defendant's service station to use the public telephone. Plaintiff was dressed in plain clothes, driving his personal vehicle, and was carrying his department-issued weapon, badge and identification. He stopped his vehicle approximately three to four feet away from a concrete retaining wall, facing a fence that ran between the retaining wall and the service station's building.
While Plaintiff talked on the telephone, he became aware of a man standing six to eight feet to his right, who was pointing a revolver at him. The gunman began demanding that Plaintiff turn over all his possessions. Plaintiff put the telephone down, and identified himself as a police officer. Plaintiff testified that by informing the assailant that he was a police officer, he intended for the individual to abandon his efforts, turn around and run away. Instead, the perpetrator shot Plaintiff in the left arm and abdomen and then attempted to flee. Only after he was shot did Plaintiff draw his service weapon and fire at the assailant.
Plaintiff filed a worker's compensation claim in connection with his injuries and received benefits from the St. Louis Police Department and the Second Injury Fund.
Plaintiff also filed a lawsuit against Defendant, alleging that he was a business invitee of Defendant, and that Defendant failed to use ordinary care to make its premises reasonably safe from the threat of criminal attack by unknown third persons. At trial, the service station's manager, James Williams, testified that violent criminal activity occurred on Defendant's premises "every day to every other day" and that he was afraid for both his safety and the safety of others. In fact, during the two-year period between August 20, 1992, and August 19, 1994, the St. Louis Police Department accumulated twelve police reports documenting violent crimes on Defendant's property. The crimes committed included the following: six armed robberies; one attempted armed robbery; two incidents of assault, including one against a police officer; one incident of first degree burglary; and two reports of stealing. Mr. Williams himself was robbed at gunpoint on at least two occasions, the most recent incident occurring on July 28, 1993, one year prior to the incident involving Plaintiff.
Evidence was also presented at trial that Defendant took several steps in 1989 and 1990 to protect its buildings and its employees from violent crime and vandalism, including remaining open twenty-four hours a day, changing to a self-service operation, placing its employees behind a locked door and a bullet-proof glass cashier's cage. However, the evidence revealed the corporation did little to protect its patrons. Despite Mr. Williams' requests to supervisors that the premises be provided with a security guard, Defendant failed to respond to his requests and did not provide a security guard. Mr. Williams also asked John Hea, a district manager for Defendant, to remove the pay telephones from the premises because that was where most of the criminal activity occurred. Mr. Hea, however, denied Mr. Williams' request because Defendant was earning too much revenue from the pay telephones. In essence, Defendant refused to take steps necessary to decrease crime on its premises because the gas station's pay phones were earning total average monthly revenue of $85.00.
Defendant's refusal to provide its service station with necessary safety measures designed to protect patrons occurred despite warnings from at least two St. Louis police officers. Officer Michael Tillman testified that he had several conversations with station attendants about criminals escaping through a poorly maintained fence located behind the service station building, and also stated that he asked the manager to remove the pay phones "because that was part of the problem." Sergeant Douglas Cummings also testified that he spoke to an individual, whom he believed to be the station manager, and "strongly suggested to him they should consider some kind of security guard to be hired as visible presence of some law enforcement at the station there on the grounds."
Instead of addressing the safety issues raised by Mr. Williams, Officer Tillman and Sergeant Cummings, Defendant employed measures designed to minimize the apparent threat of danger and encourage customer patronage by removing graffiti from the premises. According to Alvin Mitchell, Defendant's manager for safety, training and security, the presence of graffiti was a "negative" because a ...
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