Warren v. Lombardo's Enterprises, Inc., 49967

• Decision Date: 04 February 1986
• Docket Number: No. 49967,49967
• Citation: 706 S.W.2d 286
• Parties: David R. WARREN and Marie E. Warren, Respondents, v. The LOMBARDO'S ENTERPRISES, INC., Appellant.
• Court: Missouri Court of Appeals

Page 286

706 S.W.2d 286

David R. WARREN and Marie E. Warren, Respondents, v. The LOMBARDO'S ENTERPRISES, INC., Appellant.

No. 49967.

Missouri Court of Appeals,

Eastern District,

Division One.

Feb. 4, 1986.

Motion for Rehearing and/or Transfer

Denied March 11, 1986.

Application to Transfer Denied

April 15, 1986.

Patrick O. Boyle, St. Louis, for appellant.

William F. James, St. Louis, for respondents.

SMITH, Judge.

Plaintiffs appeal the trial court's order granting defendant's motion for summary judgment. We affirm.

Defendant operates a restaurant in north St. Louis. It has a parking lot next door and another one a block away. Valet parking is provided on the lot next door. Plaintiffs went to the restaurant for a meal. The lot next door was full and the attendants directed plaintiff to park at the lot a block away. They did and while on this lot Mr. Warren was robbed and shot by an unknown assailant. Plaintiffs set forth in their second amended petition newspaper reports of six incidents of actual violent crime occurring in the general neighborhood over the three and one-half years prior to Mr. Warren's injury. All but one of these crimes involved armed robberies of financial institutions. The other crime was the robbery of an individual. None of the prior crimes occurred on defendant's property and no crimes on that property were specifically alleged in the petition or in plaintiffs' answers to interrogatories. There was no allegation that defendant was aware of the assailant's presence or that he was acting under the direction or control of defendant. Plaintiffs premised recovery upon defendant's failure to have an attendant or other surveillance system on the second lot and in failing to warn of the danger involved in using the second parking lot.

In Meadows v. Friedman Railroad Salvage Warehouse, 655 S.W.2d 718 (Mo.App.1983) [1-4] we stated:

"In Missouri, the owner of a business property is not liable for misconduct or negligent acts of third persons unless the third persons are acting under direction or control of the owner, or where their actions could have been reasonably anticipated and guarded against.... There exists no general duty to protect a plaintiff against the intentional criminal conduct of unknown third persons."

In Meadows, supra, and in Nappier v. Kincade, 666 S.W.2d 858 (Mo.App.1984) we recognized that this general rule was subject to exceptions delineated as "special relationships" and "special facts." No "special relationship" as that term was identified in those cases is present here. In both those cases we recognized that "special facts" include those situations in which a known dangerous or violent individual is present (Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976) ) or where an individual present on the premises has conducted himself so as to indicate danger and sufficient time exists to prevent injury (Pizzurro v. First North County Bank & Trust Company, 545 S.W.2d 348 (Mo.App.1976) ). In Meadows and Nappier we discussed cases from other jurisdictions holding that prior criminal acts on the premises constitute "special facts." We also stated that contrary cases exist. In neither case was it necessary to decide, nor did we decide, that prior criminal acts on the premises constituted "special facts" sufficient to invoke an exception to the general rule. Meadows involved other criminal acts in the neighborhood but not on the premises. Nappier was premised on the conduct of an allegedly known assailant and sought recovery under the Scheibel, supra and Pizzurro, supra "special fact" situations. The case now before us presents essentially the same fact situation present in Meadows and for the same reasons the petition does not establish a duty by the landowner. ¹

Plaintiffs rely upon Brown v. National Supermarkets, Inc., 679 S.W.2d 307 (Mo.App.1984). That case, purportedly on the authority of Meadows and Nappier, upheld a cause of action based on prior crimes on the same premises. In so holding the opinion relied upon the language of Meadows that plaintiffs had failed to allege that "specific prior crimes occurred on the premises." Brown equated this to a holding that had such an allegation been made a different result would have followed. In so equating, Brown ignored the subsequent language of the same paragraph "Such allegations are insufficient "special facts" to create a duty on the part of defendants, even in those jurisdictions upholding a duty where incidents of actual crime had occurred on the premises or nearby. " Meadows, supra, . (Emphasis supplied).

In Meadows and...