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Wieland v. Owner-Operator Services, Inc.

Supreme Court of Missouri, En Banc

February 13, 2018

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

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Jack Grate, Judge

          W. Brent Powell, Judge

         Owner-Operator Services Inc. appeals the circuit court's judgment in favor of Amie Wieland for her claim of negligence alleging her employer, Owner-Operator, breached its duty to protect her from the criminal act of a third person on its premises. Owner-Operator argues the circuit court erred in submitting a verdict director to the jury that was not supported by substantial evidence and in allowing Wieland to make arguments to the jury that misstated the law as instructed in the verdict director. The circuit court's judgment is affirmed.

         I. Factual and Procedural History

         Wieland was an Owner-Operator employee when she was served at her workplace with an ex parte order of protection sought and secured by Alan Lovelace, her ex-boyfriend. Wieland told Owner-Operator's director of human resources the allegations of harassment supporting the ex parte order of protection were acts Lovelace was committing against her, not vice versa. Wieland told the director she was scared and felt threatened by Lovelace. The director asked Wieland to provide a description and photograph of Lovelace, which Wieland did. The director gave the description and photograph to the supervisor of the front desk receptionists to disseminate. The director also told her supervisor and Owner-Operator's volunteer safety team about the situation.

         Two weeks later, Wieland attended the court hearing set to consider the order of protection, and the case was dismissed after Lovelace failed to appear. Wieland returned to work that same day and told the director she was "fearful" but did not know if Lovelace would show up to her workplace. When Wieland left work that day, she encountered Lovelace lying in wait inside her vehicle parked in the employee parking lot. As Wieland attempted to walk away from Lovelace, he shot her in the back of the head.

         Wieland survived the attack and filed a petition alleging negligence against Owner-Operator, contending the business breached its duty of care to protect her against the criminal act of a third person on its premises. At trial, Wieland offered evidence of Owner-Operator's internal safety protocol in place when an employee reports concerns of a potential threat from a known person. In addition to the actions taken after Wieland expressed concern about her safety, Owner-Operator's internal protocol included other precautions Owner-Operator did not undertake, such as offering Wieland a parking space in the visitor's parking lot (which was by the front entrance of the building and in view of the receptionist desk) and offering an escort to Wieland's vehicle by a member of the volunteer safety team. There was also evidence establishing Owner-Operator had security cameras surveilling the employee parking lot, but those cameras were not actively monitored, even after Wieland's reported concerns. The security cameras recorded Lovelace entering the employee parking lot and Wieland's vehicle approximately one hour before he attacked Wieland.

         In making her case to the jury, Wieland primarily argued Owner-Operator failed to take reasonable precautions before Lovelace entered the employee parking lot that could have led to the discovery of Lovelace when he entered the parking lot. The verdict director submitted to the jury read:

         Your verdict must be for plaintiff Amie Wieland if you believe:

First, that Alan Lovelace was present in defendant's parking lot on November 20, 2012 and he posed a danger to plaintiff, and
Second, that defendant knew or by using ordinary care could have known that Alan Lovelace was in its parking lot and posed a danger to plaintiff, and
Third, that defendant failed to use ordinary care to notify law enforcement authorities when the risk of danger to plaintiff became apparent, and
Fourth, that defendant was thereby negligent, and
Fifth, that sufficient time existed within which to prevent injury to plaintiff after defendant knew or by using ordinary care could have known that Alan Lovelace was in its parking lot and posed a danger to plaintiff, and
Sixth, such negligence of defendant combined with the acts of Alan Lovelace to directly cause damage to plaintiff.

         The jury found in Wieland's favor and awarded her $3, 250, 000 in damages. The circuit court entered judgment in accordance with the jury's verdict. Owner-Operator then filed a motion for new trial, which the circuit court overruled. Owner-Operator appealed and, after opinion by the court of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.

         II. Submissibility of the Verdict Director

         In any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant's breach proximately caused the plaintiff's injury. 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 touchstone for the creation of a duty is foreseeability." Id. (internal quotations omitted). "A duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable." Id. However, this Court has recognized "two 'special facts and circumstances' exceptions to the rule that businesses generally have no duty to protect invitees from criminal acts of third persons." Id. This appeal concerns the differences between these exceptions and Owner-Operator's allegation of error regarding the distinctions between these exceptions.

         In recognizing the two exceptions to the "no duty" rule, this Court essentially adopted the rule established by § 344, comment f, of the Restatement (Second) of Torts. See Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988). That rule provides:

Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

         Restatement (Second) of Torts § 344 cmt. f (emphasis added).

As further explained:
The [rule] underscores two rather different situations in which the duty may arise. The first is when the defendant knows, or has reason to know, that a third party is harming or is about to harm an entrant. At this point the defendant may be able to protect the entrant only by warning him, summoning the police or utilizing already available security measures. The second is when the nature of defendant's business or past experience provides a basis for the reasonable anticipation on defendant's part that the criminal activity of third persons might put entrants at risk. In this class of cases the defendant may be liable for failing to adopt security measures which might have kept the third person from inflicting harm upon the entrant. The distinction between these categories is significant, because the duty to foresee a general risk of criminal activity and to take steps to safeguard entrants from it may require substantial expenditures on the part of the possessor.

         The Law of Premises Liability § 11.03[1], 11-6 (emphasis added) (internal footnotes omitted).

         Notably, the Restatement's rule is phrased in terms of "knows or has reason to know." Restatement (Second) of Torts § 344, cmt. f. Unlike "should know" or "could know, " "reason to know" creates no duty of care on the part of the business to preemptively discover the facts in question; rather, "reason to know" means a duty of care arises only after the business has information from which a reasonable actor would ...


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