Vann v. Town Topic, Inc.

• Decision Date: 17 October 1989
• Docket Number: No. WD,WD
• Citation: Vann v. Town Topic, Inc., 780 S.W.2d 659 (Mo. App. 1989)
• Parties: Carthel VANN, Appellant, v. TOWN TOPIC, INC., Respondent. 41691.
• Court: Missouri Court of Appeals

Page 659

780 S.W.2d 659

Carthel VANN, Appellant, v.TOWN TOPIC, INC., Respondent.

No. WD 41691.

Missouri Court of Appeals Western District.

Oct. 17, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Nov. 28, 1989.

Charles L. House and James P. Cannon, Kansas City, for appellant.

Joseph B. Bott, Kansas City, for respondent.

Before CLARK, P.J., and LOWENSTEIN and BERREY, JJ.

CLARK, Presiding Judge.

Appellant sued respondent to recover damages for personal injuries appellant received when he was attacked by persons outside respondent's place of business.Respondent moved for summary judgment relying on depositions of various witnesses and contending that under the undisputed, material facts, respondent was entitled to judgment as a matter of law.The trial court agreed, entered summary judgment for respondent and appellant has appealed.

Three points of error are asserted, but the only contention warranting review is appellant's claim that the trial court erroneously found respondent to owe no duty to protect patrons from injury from third parties who had manifested a disposition toward violence and who perpetrated an attack on appellant outside respondent's premises.

Appellant does contend that summary judgment was inappropriate because some material facts were in dispute.Where summary judgment has been entered, the court must view the record in the light most favorable to the party against whom the judgment was entered.Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244(Mo. banc 1984);Scott v. Thornton, 484 S.W.2d 312, 314(Mo.1972).Thus, appellant enjoys the benefit of all facts which would tend to support his claim.If those facts indicate that he cannot recover under any theory within the scope of the pleadings, his cause is not rescued from summary judgment merely because the facts on which his claim depends are themselves in dispute.

We therefore recount the facts giving to appellant the benefit of that version of events which corresponds with the petition allegations and which tends to buttress his claim of respondent's liability to a business invitee.The fact that other evidence may place the claim in a less favorable posture is irrelevant.

In the early morning hours of May 4, 1986, appellant and a companion, Joseph Raya, visited respondent's restaurant and ordered food.While they were eating, one Perez entered to claim an order of food requested to take with him.Several other persons, apparently known to Perez entered, an argument ensued and resulted in some scuffling and shoving.Some or all of the persons appeared to be intoxicated.One of respondent's waitresses remonstrated with the group about the disturbance and those involved, including Perez, left to continue their dispute outside.

Appellant and Raya were not involved in the confrontation between Perez and the others inside the restaurant and those persons were not known to appellant and Raya.After the other group had left at the waitress's direction, appellant and Raya completed their meals.They then ordered some food, apparently sandwiches, to be prepared and taken with them.When that order was ready, appellant and Raya left by the front door of the restaurant intending to go to Raya's car which was parked in the lot adjacent to the restaurant and provided for respondent's customers.To reach the lot, it was necessary to walk along a public sidewalk in front of the building.As appellant and Raya stepped out on the sidewalk, they saw that the altercation among Perez and the others was still in progress and that Perez was down in the street.

Upon seeing what was occurring, Raya suggested to appellant that they should attempt to stop the fight.Appellant agreed and "hollered" at the group saying, "Hey, break it up."At this point those involved in the disturbance, other than Perez, turned toward Raya and appellant, allowing Perez to escape.Appellant and Raya first sought to defend themselves but then retreated toward the parking lot.The pair became separated and at least one of the men attacked appellant with a knife inflicting a number of wounds.

While the attack on appellant was still in progress, appellant being down on the surface of the parking lot, the police arrived, evidently summoned by a waitress at respondent's restaurant.Appellant was rescued from further injury and the assailants were arrested.

Appellant's petition for damages was grounded upon the theory that a business owner owes a duty of care to customer-invitees to protect them from criminal attack by third persons where the business owner knows or should know that criminal acts are occurring or are about to occur.Under the facts of this case, appellant alleged that respondent breached a duty, either to warn appellant of the danger to him from the combatants outside in the street, or to come to his aid once the need for such aid was apparent.Specifically, appellant charged that respondent's negligence lay in the failure of the waitress to call for police assistance earlier than she did.

We initially reject any prospect that appellant's case could be based on a failure of respondent to warn appellant of danger in consequence of the fight proceeding in the street outside the restaurant.Appellant was a witness to the scuffle among the persons earlier, there was a plain view of the street from the front window of the premises and appellant was well aware of what was occurring once he stepped onto the sidewalk from the exit door.A warning would have told appellant nothing he did not already know and would have therefore been meaningless.Appellant merely encountered circumstances which were known to him and obvious.No facts are alleged upon which appellant could have made a submissible case for failure to warn.

The argument appellant advances here abandons any possible cause for failure to warn and instead focuses on the claim that respondent owed him a duty to provide protection against possible assault while appellant was on his way to the vehicle in respondent's parking lot.The most serious defect in this aspect of the case lies in the absence of a nexus between the alleged negligence of respondent and the resulting injury to appellant.

Actionable negligence requires a causal connection between the conduct of defendant and the resulting injury to the plaintiff.Zafft v. Eli Lilly & Co., 676 S.W.2d at 244.Proximate cause is such cause as operates to produce a particular consequence without the intervention of an independent cause, in the absence of which the injuries would not have been inflicted.Owens v. Union Electric Co., 729 S.W.2d 248, 250(Mo.App.1987).An intervening resulting cause is a new and independent force which so interrupts the chain of events initiated by defendant's negligence as to become the responsible, direct, proximate cause of the injury.Sirna v. APC Building Corp., 730 S.W.2d 561, 564(Mo.App.1987).

The facts of this case reviewed above show that the group engaged in the altercation with Perez had no interest in appellant and posed no threat to his well-being while all were inside the restaurant.Once the combatants had left the restaurant, they were no longer on respondent's premises, the evidence being that the fight was out in the street.There was no allegation by appellant that the way to Raya's car or to the parking lot was impeded because of the fight or that the conduct of the participants posed any threat to appellant.The sole and precipitating cause of the attack on appellant was his decision to intervene in the melee, albeit with the laudable objective of preventing injury to Perez.

The facts lead inescapably to the conclusion that had appellant proceeded directly to the Raya automobile, the events would have passed without incident to appellant.Even if it be assumed that respondent owed some duty to protect appellant as he left the restaurant, a failure to discharge that duty was not the proximate cause of appellant's injury.The intervening resulting cause was the act of appellant when he injected himself into the fray by attempting to stop the attack on Perez.Appellant therefore makes no case against respondent because the negligence of its employees did not cause the injuries complained of.

We are cognizable of the decision in Cox v. J.C. Penney Co., 741 S.W.2d 28(Mo. banc 1987), which applies the doctrine of comparative fault in premises liability cases.Under Cox, a business invitee need not be without fault to obtain a proportionate recovery in damages.This rule, however, does not abrogate the basic tort law of negligence.In order to recover damages, the invitee-plaintiff must still prove a causal relationship in some degree between his injury and the defendant's negligence.Where, as here, the facts show a separate intervening cause which produced the injury, the stage of apportioning fault is not reached.

The foregoing discussion has assumed the prospect of liability on the part of respondent if the fact had been that an unprovoked attack were made on appellant as he and Raya left the restaurant.Even in that circumstance, however, appellant would have had no claim to relief.

There was some understandable lack of specificity in the accounts of witnesses as to where the fight between Perez and his assailants occurred.At least when appellant left the restaurant, it was agreed that Perez was down in the street and from this it may be assumed his attackers were also in the street.Whether appellant was ever in the street is in doubt but at least it may be stated with certainty that the group came after appellant when he was either in the street or on the sidewalk, both being public areas adjacent to respondent's business premises.There is no allegation nor basis to find that respondent had any control over these public areas.Subsequently, appellant fled to the respondent's parking lot, but by then, the assault was already in progress.

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