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Wieland v. Owner Operator Services, Inc.

Court of Appeals of Missouri, Western District, Third Division

December 13, 2016

AMIE WIELAND, Respondent,
v.
OWNER OPERATOR SERVICES, INC., Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jack R. Grate, Judge

          Before: Alok Ahuja, P.J., Thomas H. Newton, and James Edward Welsh, JJ.

          James Edward Welsh, Judge

         Owner-Operator Services, Inc. ("OOSI") appeals the amended judgment of the circuit court in favor of Amie Wieland on her claim of negligence following a jury trial. OOSI contends that the circuit court erred in giving Wieland's verdict director, Instruction Number 6, because substantial evidence did not exist establishing her claim under the specific harm exception to the general premises liability rule that a business owner does not owe a duty to protect a business invitee from the criminal acts of third parties. OOSI also contends that the circuit court erred in allowing Wieland to argue in closing argument a duty of care and a breach of that duty of care that went outside the scope of Instruction Number 6. We affirm the circuit court's judgment.

         The evidence established that Wieland began working for OOSI as a truck insurance agent support specialist in October of 2012. OOSI is a subsidiary of Owner-Operator Independent Drivers Association ("OOIDA") that manages the for-profit business of OOIDA. National headquarters for OOIDA and OOSI were located in Grain Valley on the same campus, across the street diagonally from the police station.[1] The campus had a number of security cameras with various views of the parking lot. The monitors for those cameras were not actively manned at all times or watched with any particular regularity. Their purpose, according to OOSI's President, was deterrent and to keep a record of what did happen in the parking lot.

         Suzanne Layton was the director of human resources at OOSI during Wieland's employment with OOSI. Layton's role at OOSI included assisting employees if they had any domestic concerns or concerns about ex parte orders. The standard practice in that situation was to gather as much information as possible and then, on a case by case basis (accounting for privacy concerns), get copies of any legal documents such as restraining orders, get a photograph of the person against whom the employee had a restraining order, and give the photo and description of that person to the front desk. The reason for giving the photo and description to the front desk personnel was that everyone entering the front doors was to show a badge to front desk personnel, and all other doors were secured.

         Layton was also in charge of facilitating employees' receipt of legal documents if delivered to them at work during business hours. She did so when Alan Lovelace, former domestic partner of Wieland, served Wieland with an ex parte order of protection at OOSI on November 6, 2012. Wieland seemed concerned to Layton, and Wieland explained to Layton that the accusations leveled in the order were in fact things Lovelace had been doing to her. The accusations specifically included coercing, stalking, harassing, and sexually assaulting. Wieland told Layton that Lovelace was "scaring" her, that she was not sure what he would do, and that she felt threatened. At some point, Wieland also told Layton that Lovelace was leaving her harassing voicemails on her cell phone while she was at work. Wieland expressed to Layton that she was concerned about Lovelace, and Layton understood that to be a safety concern.

         In keeping with company protocol, Layton asked Wieland to provide her with a description and photograph of Lovelace, which Wieland did. Layton gave the description and photograph to the front desk supervisor for dissemination to front desk personnel. Further, when an employee was concerned about his or her safety at work, company protocol also included offering that employee a parking spot close to the front of the building. OOSI, however, never offered Wieland a closer parking spot. Wieland's expert witness, John Roberts, a security consultant, testified that OOSI's protocol and procedure when handling ex parte situations also included offering employees escorts to their vehicles.

         Layton and Jack Garringer were co-chairs of "Team 9, " a volunteer security team managed by OOSI. Team 9 was a group of safety and security people whose role was "to be present if something happens and, through that presence, help to cool any activity that might occur." Layton believed she discussed Wieland's concerns about Lovelace with Team 9 but could not recall whether or not she shared the photo of Lovelace with Team 9.

         On November 20, 2012, a hearing was held on Lovelace's ex parte order against Wieland. Wieland returned to work from the hearing and told Layton and other OOSI employees that Lovelace did not appear and that the order was dismissed. Wieland, however, told Layton that Lovelace continued to contact and harass her. Layton asked if Wieland was fearful, and Wieland said that she was. Layton asked Wieland if she thought Lovelace would show up at OOSI, and Wieland said that she did not know.

         Later that same day, video of the parking lot showed that someone entered Wieland's vehicle about an hour before she got off work. Wieland clocked out of work at about 5:40 p.m. and walked to her vehicle. When she began unlocking the driver's side door to get in, she noticed the door was unlocked and saw Lovelace jump from the middle seat to the back seat. Wieland told Lovelace to get out of her car, closed the door, and started walking back toward the OOSI building. Lovelace exited the vehicle, walked after Wieland, and, within twenty seconds, was directly behind her and shot her in the back of her head. Wieland was severely injured but survived the shooting.

         Wieland filed a petition against OOSI claiming negligence. After a six-day trial, Wieland's claim was submitted to the jury on the theory that OOSI breached its duty as a business owner owed to Wieland as an invitee to exercise ordinary care to protect her from Lovelace. The jury returned a verdict in favor of Wieland, awarding damages of $3, 250, 000. OOSI appeals.

         In its first point on appeal, OOSI contends that the circuit court erred in giving Wieland's verdict director, Instruction Number 6, because substantial evidence did not exist establishing her claim under the specific harm exception to the general premises liability rule that a business owner does not owe a duty to protect a business invitee from the criminal acts of third parties. OOSI argues that the specific harm exception is a specific test and that evidence OOSI "'could have known' Lovelace was in the parking lot in time to have prevented the shooting if it had taken various precautionary actions to protect her as part of its protocol to protect employees involved in domestic abuse disputes . . . before Lovelace had entered the parking lot" was not admissible or relevant. OOSI asserts that, under the specific harm exception, a duty of care does not arise "until after the known third party has entered the premises." OOSI claims, therefore, that Wieland had to present substantial evidence from which the jury could find that OOSI actually "knew that Lovelace was in the parking lot;" "that, when OOSI became aware of Lovelace's presence in the parking lot, it knew that he posed a danger to Wieland;" and that "there was sufficient time thereafter for OOSI to take action that could have prevented Wieland from being shot."

         Rule 70.02(a) dictates that jury instructions "shall be given or refused by the court according to the law and the evidence in the case." Whether the jury was properly instructed is a question of law upon which the circuit court is entitled to little deference. Nagaragadde v. Pandurangi, 216 S.W.3d 241, 244 (Mo. App. 2007). In determining whether the jury was properly instructed, we view the evidence and inferences in the light most favorable to the submission of the instruction on any theory supported by the evidence and disregard all contrary evidence and inferences. Id.; Wright v. Barr, 62 S.W.3d 509, 526 (Mo. App. 2001). Any issue submitted in a challenged instruction must be supported by substantial evidence from which the jury could reasonably find or infer that issue. Rider v. The Young Men's Christian Ass'n of Kansas City, 460 S.W.3d 378, 383 (Mo. App. 2015).

         To succeed on a claim of negligence, the plaintiff must show (1) that the defendant had a duty to protect the plaintiff from injury, (2) that the defendant failed to perform that duty, and (3) that the defendant's failure to perform that duty proximately caused (4) injury to the plaintiff. L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002). The existence of a duty is a question of law and is premised upon foreseeability. Id. Generally, a business owner has no duty to protect its business invitees from the criminal acts of unknown third parties because such activities are rarely foreseeable. Id.

         Courts, however, have recognized two "special facts and circumstances" exceptions to the general rule that businesses generally have no duty to protect invitees from criminal acts of third persons. Id. "Under the first exception, 'the duty may arise when a person, known to be violent, is present on the premises or an individual is present who has conducted himself so as to indicate danger and sufficient time exists to prevent injury.'" Id. (quoting Faheen v. City Parking Corp., 734 S.W.2d 270, 272-73 (Mo. App. 1987)). "The other exception recognizes 'a duty [on the part of business owners] to protect their invitees from the criminal attacks of unknown third persons' under certain special circumstances, " and, under such exception, "'[a] duty of care arises out of circumstances in which there is a foreseeable ...


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