St. John Bank & Trust Co. v. City of St. John

• Court: Missouri Court of Appeals
• Writing for the Court: SIMON
• Citation: St. John Bank & Trust Co. v. City of St. John, 679 S.W.2d 399 (Mo. App. 1984)
• Decision Date: 11 September 1984
• Docket Number: No. 46953,46953
• Parties: ST. JOHN BANK & TRUST CO., Plaintiff-Respondent, v. CITY OF ST. JOHN, Defendant-Appellant.

Page 399

679 S.W.2d 399

ST. JOHN BANK & TRUST CO., Plaintiff-Respondent, v. CITY OF ST. JOHN, Defendant-Appellant.

No. 46953.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 11, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 16, 1984.

Application to Transfer Denied

Nov. 20, 1984.

Thomas Plunkert, St. Louis, for plaintiff-respondent.

Carl I. Katzen, St. Louis, for defendant-appellant.

SIMON, Judge.

Defendant City of St. John appeals from a judgment for plaintiff St. John Bank & Trust Co. in an action for damage to property caused by a fire. The fire was intentionally set by a member of the St. John Police Department. Plaintiff, as trustee of a trust, owned the property, a movie theater, but did not operate the theater. Damages, therefore, were based solely on the damage to the building. Liability was premised on the city's failure to use ordinary care in supervising its police force. We affirm.

At the outset, we note that there was no issue in this case as to the city's immunity from liability. The city concedes in its brief that it has purchased insurance covering the exercise of a governmental function. It has therefore waived the protection of sovereign immunity. Section 71.185 RSMo (1978). Although the operation and supervision of a police department are acts involving discretion of public officials, they constitute the exercise of a governmental function, the immunity for which is waived by the purchase of insurance. Oberkramer v. City of Ellisville, 650 S.W.2d 286, 297-98 (Mo.App.1983). We therefore proceed to the merits.

The fire giving rise to this suit occurred during the early morning hours of April 30, 1979. It is undisputed that the fire was set by Sgt. Dunn, a member of the St. John Police Department, while he was on duty. Plaintiff contends that the fire was the last of a series of events which constituted harassment of the theater operators. In addition, plaintiff alleged that the city knew or should have known of this harassment, and that the city failed to take any corrective action to end the harassment. This failure to supervise the department properly, plaintiff asserts, resulted in the arson giving rise to this action.

The elements of an action for negligence are (1) existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976). The last element includes the question of proximate cause. The test of proximate cause is "whether, after the occurrence, the injury appears to be the reasonable and probable consequence of the act or omission of defendant, not whether a reasonable person could have foreseen the particular injury." Gaines v. Monsanto Co., 655 S.W.2d 568, 571-72 (Mo.App.1983). The fact that the damage was caused by a criminal act of arson does not end our inquiry, for "if the foreseeable likelihood that a third person may act in a particular manner is one of the hazards which makes a person negligent, such an act of a third party, whether innocent, negligent, intentionally tortious or criminal, does not prevent that person from being liable for the harm caused thereby." Scheibel v. Hillis, 531 S.W.2d at 288. With these principles in mind, we now review the evidence in the light most favorable to the verdict.

From the evidence presented the jury reasonably could have found that the operator of the theater had been subjected to a pattern of harassment by members of St. John Police Department prior to April 30, 1979. The police made a practice of interfering with the theater's customers, refusing to allow them to wait outside the theater before entering, and taking down license plate numbers of customers' cars. There were two instances where the police stopped movies in the middle of shows to conduct searches of the theater; once allegedly to look for minors consuming alcoholic beverages, the other to look for unaccompanied minors watching an "R-rated" movie. There was also an incident involving a 16-year old girl employed by the theater who was told by one officer to "open her blouse or he would blow her head off." There was also evidence showing that those acts which were arguably proper police work were completely groundless and unwarranted.

The jury also could have found that the city knew, or should have known, of this harassment and failed to take any corrective action. A meeting was held on February 27, 1979, two months before the fire, between the operators of the theater and various city officials, including the City Manager and Chief of Police. At this meeting the operators aired their grievances about the police. Following the meeting, and the continuing harassment, the operators contacted other city officials, including the City Attorney and a member of the City Personnel Board. The city admits that it took no action in response to the complaints, alleging that the acts constituted at least arguably proper police conduct, and therefore required no corrective measures. While there was evidence to support this view, the jury found otherwise and we will not upset this finding.

We now come to the events of the weekend before the fire, which plaintiff stresses as showing the glaring need for proper supervision of the police force. On both Friday and Saturday nights there were incidents at the theater regarding patrons waiting on the sidewalk outside. Each night there were altercations between one of the theater operators and police officers, which resulted in the issuance of two citations for obstruction of the police. On the Friday night, Sgt. Dunn had an argument with one of the operators, during which the officer threatened to close down the theater.

On Sunday, April 29, the night before the fire, there was no incident at the theater. The evidence did reveal, however, a serious breach of proper police conduct by a number of officers. That night, as the shifts were changing, Sgt. Dunn arrived for work with a quantity of beer. He and three other officers stayed in the station for a time drinking beer. While there, Sgt. Dunn took out a gun and began firing shots into the wall of the police station. Then the four went to an unmarked police car and began driving around the city. During this drive Officer Dunn fired shots at a black man who was walking down a street, and also shot at a cat, a car, and the door to the movie theater. The four then returned to the police station. Later the next morning, Dunn set fire to the theater.

We come now to the question of whether the city had any duty to the plaintiff. Given the pattern of harassment, of which the city had at least constructive knowledge, we think it clear that such a duty existed. The theater operators had been subjected to abuses of police powers and repeated acts of misconduct. It is clear that under these facts the city owed a duty to the theater operators to supervise its department and correct these abuses. See, Scheibel v. Hillis, 531 S.W.2d 285 (woman who made shotgun available to person known to her to have dangerous propensities could be liable for failure to warn third person); Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509 (1947) (employer could be liable for assault by employee if employer knew or should have known of employee's vicious propensities).

Defendant argues, however, that the evidence failed to show that it had knowledge, prior to the fire, of any act that would give rise to a duty to prevent the arson. Thus, argues defendant, the plaintiff failed to show both a duty to protect plaintiff from this harm and that the failure to supervise was the proximate cause of plaintiff's injury. We disagree because defendant's argument focuses too narrowly on the arson.

As noted earlier, the evidence established a duty running to the operators of the theatre to protect them from the abuses of the police. This is because the risks created by the failure to supervise directly threatened the operators' business. We also think that given the known harassment, a reasonably foreseeable risk of damage to plaintiff's building and property was also shown. Although damage to the operators' business may have been the most obvious risk, it is clear that damage to the building housing that business was also a reasonably foreseeable risk so as to be encompassed within the scope of the duty to properly supervise the police department. While there may have been no prior indication that the damage would be accomplished by arson, there was a prior indication that damage to the building could occur. "[I]f the result is foreseeable, the manner in which it is brought about need not be, and is immaterial." Prosser & Keeton, Torts § 44, at 317 (5th ed. 1984). Therefore, we find the first element satisfied.

Having noted earlier that no corrective measures were taken, the second element has been satisfied. The duty to properly supervise the department was breached.

We turn now to the question of whether the breach was the proximate cause of plaintiff's injury. Defendant offers two reasons why we should not so hold; first, that the arson was not a foreseeable result of the failure to supervise, and second, that the arson was an independent intervening act for...