Vittengl v. Fox

• Citation: 967 S.W.2d 269
• Decision Date: 21 April 1998
• Docket Number: No. WD,WD
• Parties: Pam VITTENGL, Respondent, v. Robert FOX, et al. d/b/a Quarry Ridge Apts., Appellants. 52780.
• Court: Court of Appeal of Missouri (US)

Page 269

967 S.W.2d 269

Pam VITTENGL, Respondent, v. Robert FOX, et al. d/b/a Quarry Ridge Apts., Appellants.

No. WD 52780.

Missouri Court of Appeals,

Western District.

Submitted Aug. 6, 1997.

Decided April 21, 1998.

Robert P. Numrich, Kansas City, for appellants.

James Crabtree, Lenexa, KS, for respondent.

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

SMART, Presiding Judge.

This case involves issues of duty and proximate cause in the context of a third party criminal assault. The owners of an apartment complex appeal a jury verdict against them and in favor of a former tenant of the apartment complex for damages sustained as a result of a criminal assault perpetrated by an unidentified attacker. Robert and Marlys Fox, Fred and Kathie Bordman, and Mark and Pam Woodward, doing business as The Quarry Ridge Apartments in Independence, Missouri, appeal the verdict entered February 9, 1996, in favor of Pam Vittengl in the amount of $780,550. Defendants contend on appeal that plaintiffs failed to plead and prove facts showing defendants had a duty to protect plaintiff from third party assaults. They further contend that plaintiff failed to present a submissible case that any alleged failure on defendants' part was the proximate cause of plaintiff's injuries. Concluding that plaintiff failed to establish a cause of action under Missouri law, we reverse the judgment.

The Assault

Plaintiff Pam Vittengl resided at the Quarry Ridge Apartment complex in Independence on Wednesday, February 22, 1989. Although she ordinarily worked nights until 5:00 a.m., on this occasion her duties were such that she left her employment at about 1:00 a.m. She drove straight home to Quarry Ridge, where she had resided for four years. Quarry Ridge, which is east of Brookside in Independence, is composed of 48 units. The building in which Ms. Vittengl resided faced south. Between the west edge of the building and the street was a grassy area (depicted in photographs appended to this opinion). This small grassy area is across Brookside Road from the grounds of the Johnson Monument Company and Mount Washington Cemetery. The parking lot for Ms. Vittengl's building is in front of the building, on the south. On the night in question, Ms. Vittengl arrived about 1:15 a.m. She parked her car in the parking area in front of the building.

After plaintiff got out of her car and began to walk up the sidewalk abutting the parking spaces to proceed to the door of the building, she was overtaken by a man who came from the parking area. She observed that the man was white, age 22-30, tall, 160-70 pounds, with shoulder length brown hair, wearing a brown plaid wool coat. The man grabbed her from behind with his arm around her neck. He pulled her off the sidewalk and forced her around the corner to the west side of the building, where he struck her each time she tried to scream. Although he verbally threatened to cut her throat, there was no indication he had a knife. He then pulled her around to the street side of the sign bearing the name of the apartment building, where he pulled hard at her breast. After this struggle in the grassy area on the west side of the building, he dragged her across the street by her coat and hair to a wooded ravine. He threw her down and began kicking her repeatedly. A tenant in the building, who had been awakened by the noise of someone crying, trying to scream, and being beaten, came outside to look. Observing no activity, she went back in and dialed 911. In the meantime, across the street in the ravine, Ms. Vittengl's attacker had pulled off Ms. Vittengl's pants and then thrust a stick or some other object into her vagina. He then proceeded to beat her on the head with a rock or other object, until he suddenly stopped and ran away. A few moments later, a policeman responding to the 911 call discovered her.

Ms. Vittengl was rushed to the hospital by the police. She underwent hospitalization and extensive treatment, but still suffers from the physical and emotional effects of this trauma. Thus far, no one has been apprehended and charged with the commission of this crime. The record does not disclose whether the police have any information at all concerning the identity of the perpetrator or whether any other crimes have been linked to this one.

The Action

Plaintiff Vittengl brought an action against the owner of the apartment complex. She contended at trial that the owners of Quarry Ridge were negligent in allowing two specific conditions which directly caused or contributed to cause damage to plaintiff: (1) the sign on the west side of the apartment building was greater than 20 square feet in total size and as a result contributed to create an area that was not reasonably safe; and (2) the area on the west side of the building was not lighted and as a result was not reasonably safe.

At trial, Plaintiff testified there were no lights on the west side of the building at the time of the attack. Plaintiff also presented the testimony of Richard Gist, Ph.D., who testified that he is a "community psychologist" educated in the "specific area of psychology dealing with the impact of events and circumstances or the functioning behavior of communities." He has studied crime, and he has provided "profiling" services to law enforcement agencies. He testified that he was assuming, for purposes of his testimony, that at the time of the attack, there was no lighting on the west side of the building, in accordance with the testimony of Ms. Vittengl. At the time of trial, the entire perimeter of the building, including the west side, was lighted with mercury vapor lighting near the roof. New fixtures were installed in 1992, three years after plaintiff was attacked. Dr. Gist's only visits to the scene were after the installation of the new lighting, and after the removal of the sign of which plaintiff now complains. Dr. Gist testified over objection that, in his opinion, at the time of the attack, based on Ms. Vittengl's testimony, the apartment complex was "an extremely attractive spot for a crime of this nature to occur." He testified that the failure to light the west end of the building, together with the fact that the landlord had placed a large sign toward the street at the west end, and the fact that there was significant foliage, enhanced the likelihood of criminal activity there. He testified that he thought that, without the west end of the building being equipped with lights on the building, the only light which would get to the west end would be ambient light from the nearby streetlight. Dr. Gist testified that in his opinion the criminal in question was a psychopath looking for a place well suited to such a crime. He assumed that plaintiff's assailant had been out driving around looking for a favorable spot for a crime, and had seen this complex, and decided to stake it out and wait for a victim. He opined, again over objection, that if the lighting on the west side of the building which the landlord later added in 1992 had been there in 1989, and if the sign had not been there in 1989, the psychopath would not have selected that spot for a crime, but rather would have driven on to look for a better place. Dr. Gist concluded that the individual committing the crime planned the crime in advance and drove away from a car parked at another location because the police determined that all of the cars on the apartment parking lot that night were accounted for. He had the opinion that if the "set up" had been different, the criminal would have looked for another place to commit the crime. He testified that it is his opinion the owners of the apartment building should have arranged for a "security review" with a security firm before this incident.

Plaintiff submitted on these two contentions of negligence (the size of the sign, and the lack of lighting on the west side), utilizing an instruction based on MAI 22.05 which allowed the jury to assign liability to the defendants if the jury found that either condition was not reasonably safe, ¹ and that defendant knew, or by ordinary care, could have known, of either of these conditions, and failed to use ordinary care to make the area safe. ² After four days of trial, the jury found in favor of plaintiff and awarded her damages in the amount of $780,500. The defendant owners appeal the verdict.

Sufficiency of the Petition and the Landlord's Duty

Defendants raise first the contention that the judgment is void because the petition fails to state a cause of action. They argue that the only power possessed by a court without subject matter jurisdiction is the power to dismiss the action, citing Rule 55.27(g)(3). They contend that because failure to plead a cause of action is jurisdictional, the issue may be raised at any time during the proceedings, even for the first time on appeal. They also contend that the plaintiff failed to prove facts giving rise to a duty on the part of the landlord.

Plaintiff's petition in this case stated in pertinent part as follows:

4. The defendants, as owners of the apartment complex, have a duty to provide adequate parking, security, maintenance and lighting, and to listen to, and respond to, requests of tenants for additional lighting and security. Tenants had previously told the defendants and their representatives of their concern that there was inadequate parking, inadequate lighting, and inadequate security measures.

5. The attack on the plaintiff was the direct and proximate result of the negligence of the defendants in failing to adequately maintain the premises; failing to have adequate lighting; failing to properly secure the area; failing to have adequate parking; failing to have adequate trained security personnel and office management; failing to have adequately trained maintenance people; and failing to heed the request of tenants for additional lighting and increased safety measures.

As to the sufficiency of the petition, ...