Stubbs v. Panek

• Decision Date: 10 March 1992
• Docket Number: No. WD,WD
• Citation: 829 S.W.2d 544
• Parties: DeWayne R. STUBBS and Edna Stubbs, Appellants, v. Lucena PANEK, David Panek, Victor Faletti and Steve Owens, Respondents. 44739.
• Court: Missouri Court of Appeals

Page 544

829 S.W.2d 544

DeWayne R. STUBBS and Edna Stubbs, Appellants, v. Lucena PANEK, David Panek, Victor Faletti and Steve Owens,

Respondents.

No. WD 44739.

Missouri Court of Appeals,

Western District.

March 10, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

April 28, 1992.

Application to Transfer Denied June 2, 1992.

Michael D. Gibbons, Kansas City, for appellants.

Richard Frank Modin, Kansas City, for respondents.

Before FENNER, P.J., and ULRICH and SPINDEN, JJ.

FENNER, Presiding Judge.

Appellants, DeWayne and Edna Stubbs appeal the order of the trial court sustaining a Motion for Summary Judgment in favor of respondents, David Panek, Lucena Panek and Victor Faletti.

In the underlying cause of action, DeWayne and Edna Stubbs brought suit against David Panek, Lucena Panek, Victor Faletti and Steve Owens for the wrongful death of their daughter, Tiffany R. Stubbs. However, Steve Owens is no longer a party as DeWayne and Edna Stubbs dismissed their cause of action against Steve Owens during the pendency of this appeal.

Tiffany Stubbs was abducted from the residence appellants were renting at 300 Hill Street, Belton, Missouri. The residence was part of a tri-plex that was one of several multi-unit dwellings in a complex owned by respondents, Lucena Panek and her son, David Panek. The complex was known as Brookview Duplexes. Tiffany's abduction was during the early morning hours of May 27, 1988, while the family was asleep. Tiffany was taken by her abductor to a creek approximately three miles from her home, sexually assaulted and murdered.

Respondent, Victor Faletti was employed by Lucena and David Panek as the live-in property manager of Brookview Duplexes. Steve Owens was also alleged to be an employee of Lucena and David Panek at the Brookview Duplexes.

Appellants have alleged alternative theories of negligence against respondents. On appeal, appellants argue that the record reflects genuine issues of material fact to support claims against respondents for: (1) negligence in maintaining the door and lock through which Tiffany's abductor gained access to their residence; (2) negligence in providing a stranger a key to appellants' residence; (3) negligence by respondents David and Lucena Panek in hiring Victor Faletti and Steve Owens; and (4) negligence by representing that the neighborhood was safe.

Negligence In Maintaining Door and Lock

Appellants argue first that the trial court erred in granting summary judgment on behalf of David Panek, Lucena Panek and Victor Faletti because there were genuine issues of material fact as to whether the Paneks' had retained control over providing and maintaining secure door locks on the premises occupied by appellants and whether Faletti was negligent in his responsibility to maintain the door and lock in question.

In addressing a summary judgment, an appellate court must review the entire record in the light most favorable to the party against whom the trial court entered judgment. Fisher v. Scott & Fetzer Co., 664 S.W.2d 662, 663 (Mo.App.1984). The trial court must exercise great care in utilizing this remedy. Gal v. Bishop, 674 S.W.2d 680, 682 (Mo.App.1984). It may enter summary judgment where the pleadings, depositions and admissions on file, together with the affidavits, if any, show that no genuine issue of material fact exists and that the law entitles the moving party to a favorable judgment. Ronollo v. Jacobs, 775 S.W.2d 121, 125 (Mo. banc 1989); Rule 74.04(c).

There was evidence that the screen door to appellants' home had been cut, the latch on the screen door unlocked and that Tiffany's abductor gained access through the front door. Mrs. Stubbs was the last person in the house to retire the night Tiffany was abducted. Mrs. Stubbs testified in her deposition that she knows she closed the wooden front door when she went to bed and she believes that she locked the door because that was her habit upon closing the front door.

Appellants argue that the faulty front door and lock allowed access to their home by the intruder. Respondents argue that even if access was gained through the front door, they are not responsible for the criminal acts of third persons and they did not retain control of the door and lock in question.

As a general proposition, a defendant has no duty to protect another person from deliberate criminal attack by a third person. Advance Rental Centers, Inc. v. Brown, 729 S.W.2d 644, 645 (Mo.App.1987). However, a landlord is under a duty to exercise ordinary care to keep the portion of the premises he retains control over in a reasonably safe condition for the use intended and is liable for damages for personal injuries resulting from his failure to perform that duty. Peterson v. Brune, 273 S.W.2d 278, 280 (Mo.1954). To show control in the landlord, there must be evidence from which the trier of fact can infer that the tenant surrendered his right to exclusive possession and control. Erhardt v. Lowe, 596 S.W.2d 489, 491 (Mo.App.1980).

More recently the Missouri Supreme Court held that allegations that a landlord knew or should have known of a dangerous condition of a fire escape, by which an intruder could obtain easy access to a tenant's apartment, stated a claim against the landlord for negligence in maintaining the fire escape allegedly resulting in a sexual assault on a tenant by an intruder who gained entry to the tenant's apartment through a window adjacent to the fire escape. Aaron v. Havens, 758 S.W.2d 446, 447 (Mo. banc 1988). In Aaron, the court relied upon the fact that the fire escape was a common area under the landlord's control. Id. at 448. The court stated that since no tenant had the right to make repairs or modifications to the fire escape, that the landlord had a duty to use due care to protect against dangerous conditions. Id. at 448.

Taken in the light most favorable to appellants, there was evidence that the front door to appellants' residence was not reasonably safe. There was a gap in the door frame between the jamb and the door frame almost wide enough for a person to stick their finger in. The gap made it possible to unlock the door with a comb, credit card or common screwdriver. Mr. Stubbs made repeated complaints about the door and asked for it to be repaired, but it was not repaired. Moreover, Mr. Stubbs was told that he could not repair the door himself. Mr. Stubbs was specifically not allowed to put a deadbolt lock on the door or a chain lock or otherwise repair the door to make it more secure. Mr. Stubbs was advised that it was Faletti's job to make repairs and that Stubbs was not allowed to make any repairs on the door.

This evidence is sufficient to raise a material issue of fact as to whether the respondents maintained control of the door and lock in question, denying appellants the right to exclusive possession and control; whether respondents knew or should have known of the door's dangerous condition by which a criminal intruder could gain easy access; and, whether appellants' damages from Tiffany's abduction and murder were as a result of the unsafe door and lock. ¹

The trial court erred by granting summary judgment on appellants' claim of negligence in maintaining the door and lock to their residence.

Negligence in Providing a Stranger With a Key

Appellants further argue that the trial court erred by entering summary judgment on respondents' behalf on their claim that respondents were negligent because Victor Faletti provided Steve Owens a key to appellants' residence.

In support of this theory, the record reflects that Steve Owens, who is alleged to be the murderer of Tiffany Stubbs, had keys to unlock the tenant's laundromat and that on one occasion Boyd Stubbs had forgotten his keys to appellants' residence and Steve Owens...