United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Family Dollar Stores
of MO, LLC's Partial Motion to Dismiss (Doc. No. 28). The
Motion is fully briefed and ready for disposition. The
parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c) (Doc. No. 20). For the following reasons,
Defendant's Motion will be GRANTED.
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Federal Rule of Civil Procedure
12(b)(6) provides for a motion to dismiss based on the
“failure to state a claim upon which relief can be
granted.” To survive a motion to dismiss a complaint
must show “‘that the pleader is entitled to
relief, ' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to defeat a
motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555).
“[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679 (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. (citation
omitted). The pleading standard of Rule 8 “does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). “When ruling on a defendant's
motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). All
reasonable references from the complaint must be drawn in
favor of the nonmoving party. Schaaf v. Residential
Funding Corp., 517 F.3d 544, 549 (8th Cir. 1999).
Darrell Macon (“Macon”) filed this action for
damages against Defendant Family Dollar Stores of
MO, LLC (“Family Dollar”) for negligence (Count
I) and willful, wanton and malicious failure to act or, in
the alternative, the failure to act was recklessly
indifferent (Count II) on April 22, 2016, in St. Louis County
Circuit Court (Doc. No. 3). Family Dollar timely removed this
action to this Court on May 17, 2016, based on diversity
jurisdiction (Doc. No. 1). With leave of court, Family Dollar
filed an amended notice of removal on August 10, 2016 (Doc.
No. 22). The Court granted Family Dollar's Motion to
Dismiss without prejudice (Doc. No. 23), and on September 27,
2016, Plaintiff filed a First Amended Complaint. (Doc. No.
First Amended Complaint, Macon alleges that on the afternoon
of March 17, 2016, he was assaulted by two unknown assailants
while a patron in Family Dollar's store located at 5251
Jennings Station Road, Jennings, Missouri (Doc. No. 24 at 1).
As a result of the incident, Macon sustained “serious
bodily injur[ies]” including loss of consciousness, a
broken rib, a head injury, and bruises and contusions to his
body (Id. at 3). Macon asserts that Family Dollar
was negligent by failing to adequately protect the safety of
Macon by not contacting the police promptly when the
assailants entered the store and began putting on gloves
(Id. at 1-3). Macon argues that Family Dollar was
(or should have been) on notice of a duty to protect him, as
the store was in a “known…low income, high crime
area[, ]” and telephone records show that the police
had been called to respond to that location “at least
87 times” in the preceding 11 months. (Id. at
1-2). Macon also alleges, on information and belief, that
Family Dollar has a panic button which, when pushed,
instantly alerts the police to trouble within the store
(Id. at 1-2). Defendant now moves to dismiss Count
II of Plaintiff's First Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim (Doc. No. 28).
establish a claim for negligence under Missouri
a plaintiff must prove: “(1) existence of a duty on the
part of the defendant to protect plaintiff from injury, (2)
failure of the defendant to perform that duty, and (3) injury
to the plaintiff resulting from such failure.”
Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.Ct.App.
1984). “If the allegations in plaintiff['s]
petition, taken as true, do not satisfy the elements of
actionable negligence, the trial court should dismiss the
petition for failure to state a claim.” Id.
owners generally do not have a duty to protect business
invitees from the criminal acts of third parties. Aziz by
and through Brown v. Jack in the Box, E. Div., LP, 477
S.W.3d 98, 103 (Mo.Ct.App. 2015). However, a business owner
may owe a duty to a patron if “special facts and
circumstances” are present. Id. at 104.
“Special facts and circumstances” may arise
“when a third party who is known to be violent or
behaves in a way indicating danger is on the business
owner's premises and a sufficient time exists to protect
the injury to the invitee” or “where prior
specific incidents of violent crime have occurred and there
is, as a result, a likelihood a third party will endanger the
business owner's invitee.” Id. at 104 n.2.
order to show that punitive damages are warranted, as Macon
requests in Count II, a plaintiff must go a step further and
allege facts to show that the defendant “knew or had
reason to know that there was a high degree of probability
that the action would result in injury.” Alack v.
Vic Tanny Int'l of Missouri, Inc., 923 S.W.2d 330,
338-39 (Mo. banc 1996) (citations omitted). Punitive damages
are not available unless the defendant “showed complete
indifference to or conscious disregard for the safety of
others.” Id. at 339 (citing Stojkovic v.
Weller, 802 S.W.2d 152, 155 (Mo. banc 1991)).
Court finds that, even in the light most favorable to Macon,
Macon fails to sufficiently allege facts supporting an award
of punitive damages. Although Macon alleges that
Defendant's failure to protect was “willful,
wanton, and malicious, ” Macon must “allege
facts indicating the defendant willfully, wantonly,
or maliciously injured the plaintiff by its tortious
act.” Wilson v. Image Flooring, LLC, 400
S.W.3d 386, 393 (Mo.Ct.App. 2013) (emphasis in
original). Indeed, Macon's allegations that
Family Dollar was on or should have been on notice of its
duty to protect Macon in light of the serious criminal
activity in the store and that Family Dollar had a
“panic button, ” even in the light most favorable
to Macon, fail to raise his claims of negligence to a
“more egregious” level indicating “complete
indifference to or conscious disregard for the safety of
others.” Litchfield v. May Dept. Stores Co.,
845 S.W.2d 596, 599 (Mo. App. Ct. 1992); Alack, 923
S.W.2d at 338-39. Therefore, the Court will dismiss Count II.
IT IS HEREBY ORDERED that Defendant Family Dollar Stores of
MO, LLC's Motion to Dismiss Count II of the First Amended
Complaint (Doc. No. 28) is GRANTED and Count II of Plaintiff