Wofford v. Kennedy's 2nd Street Co.
| Decision Date | 15 February 1983 |
| Docket Number | No. 45661,45661 |
| Citation | 649 S.W.2d 912 |
| Parties | Mary Katheryn WOFFORD, Plaintiff-Appellant, v. KENNEDY'S 2ND STREET CO., Laclede's Landing Redevelopment Corporation, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
William Edward Taylor, St. Louis, for plaintiff-appellant.
William W. Evans, Gerre S. Langton, St. Louis, for Kennedy's 2nd Street Co.
Joseph M. Kortenhof, John Keath, St. Louis, for Laclede's Landing Redevelopment Corp.
This is an appeal from a judgment of the Circuit Court of the City of St. Louis which dismissed appellant, Mary Katheryn Wofford's second amended petition. The trial court granted the separate motions of respondents Kennedy's Second Street Company (Kennedy's) and Laclede's Landing Redevelopment Corporation (Laclede's) to dismiss for failure to state a cause of action or failure to state a claim upon which relief could be granted. The judgment dismissing the petition is affirmed.
In appellant's single point relied on, she charges the trial court erred in granting defendants' separate motions to dismiss her second amended petition because she alleged facts sufficient to establish a duty owed by the respondents to appellant, the negligence of Kennedy's and Laclede's and injuries proximately caused by that negligence. She further argues that she stated a cause of action for fraudulent misrepresentation against Laclede's.
Appellant's petition is in six counts. Count I seeks compensatory damages of $500,000 from Kennedy's for its alleged negligent acts. Count II seeks punitive damages in the amount of $2,000,000 from Kennedy's, because of Kennedy's alleged recklessness.
Count III seeks damages of $500,000 from Laclede's because of Laclede's false representations concerning the incidence of crime at Laclede's Landing and appellant's reliance on the false representations. Count IV seeks from Laclede's damages of $500,000 for its negligence in failing to provide security guards, street lighting and escorts for women customers, and failing to warn appellant of the dangers of an attack, and of the absence of security precautions and street lighting. Count V seeks punitive damages of $15,000,000 from Laclede's because of its alleged recklessness.
Count VI against the defendant of City of St. Louis was dismissed without prejudice.
The petition alleges that on February 21, 1979, appellant was a customer of Kennedy's, which is located at 612 North Second Street in St. Louis. Appellant left Kennedy's at approximately 10:25 p.m. to go to her car which was parked on the north side of Lucas Avenue between First and Second Streets. As she approached her automobile, appellant was kidnapped by three assailants who took her to a building on Martin Luther King Drive, where appellant was raped, sodomized and beaten by the assailants.
Appellant alleges that Kennedy's knew, or should have known, that there were no lighted parking lots or garages on Laclede's Landing for business invitees; that Kennedy's knew, or should have known, that the street lighting for Laclede's Landing had been intermittently inoperative for at least four days prior to the attack on appellant; that Kennedy's knew, or should have known, that, in the absence of adequate street lighting, the likelihood of assault and other crimes would increase; that Kennedy's knew, or should have known, that Laclede's Landing has been the site of a number of violent crimes during the three year period prior to the attack on appellant.
The petition against Kennedy's alleged failure to exercise ordinary care because Kennedy's failed to provide a uniformed security guard, failed to provide plain clothes security personnel, failed to warn appellant about the absence of security precautions and the danger of an attack before her departure from Kennedy's, failed to provide street lighting in front of Kennedy's, failed to provide appellant with any warning about the absence of street lighting, and failed to provide appellant with any warning or notice about the increased likelihood of criminal acts when street lighting is absent; and finally, failed to provide a safe escort for women customers, including appellant, even though the provision of an escort service had been a policy of Kennedy's in the past.
In spite of the numerous allegations of fact concerning the lack of security guards and escorts, the absence of lighting and the failure to warn, this court finds that appellant's second amended petition failed to state a cause of action against Kennedy's and affirms the trial court's judgment dismissing the petition as it applies to Kennedy's.
The petition alleges that appellant was a business invitee of Kennedy's and from the facts alleged, the inference that she was a business invitee can be made. Respondents raise no issue about her status.
Kennedy's was a restaurant and tavern, and a tavern keeper owes his invitees a duty of ordinary care to prevent injuries inflicted by third persons. Gregorc v. Londoff Cocktail Lounge, 314 S.W.2d 704, 707 (Mo.1958). "As a general rule, the proprietor of a place of public resort is subject to liability to his business invitees for injuries inflicted by the acts of other patrons or third persons if the proprietor by the exercise of reasonable care could have known that such acts were being done or were about to be done and could have protected his customers by controlling the conduct of the other persons." Id. at 707[5-7].
The question is whether Kennedy's owed a duty to appellant when she was on Lucas Avenue, a public street around the corner from Kennedy's establishment. The duty which Kennedy's owed appellant extended from the premises to the approaches of Kennedy's. See Associated Dry Goods Corp. v. Drake, 394 F.2d 637, 641 (8th Cir.1968).
A public street around the corner from a restaurant and tavern is not an approach to the establishment for purposes of holding the owners of the establishment liable for harm caused to patrons by third persons. If a public street under the circumstances here were held to be an approach so that the landowner's duty to prevent injuries is extended to injuries occurring on public thoroughfares, the line which would cut off the landowner's liability becomes nearly impossible to draw.
Responsive to the issue is Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429 (7th Cir.1978) which held that defendants did not owe "... duty to its business invitees to protect invitees from criminal attacks by third persons while invitees were parked on public thoroughfares adjacent to defendant's business premises." Id. at 429. The reasoning is persuasive. In Mitchell, the plaintiff was a truckdriver who was making a delivery to the defendant's premises. The defendant's employees directed the plaintiff to park on a public street next to the defendant's business. The plaintiff was shot while parked on the street.
If the defendant in Mitchell was not liable for the injuries inflicted there, then Kennedy's, which had no control over the public streets, should not be liable in the case under review, and this court holds that they are not liable, there being no duty owed by Kennedy's to appellant to prevent injuries inflicted by third persons on a public thoroughfare around the corner from the entrance to Kennedy's.
If follows therefore, that, because there was no duty to prevent the injuries, there was no duty to warn ...
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