Opinion
No. 58111
OPINION Filed: April 17, 2001 Modified: May 29, 2001
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE K. PRESTON DEAN, JUDGE
Scott A. McCreight, Korey A. Kaul, Michael S. Ketchmark, and Joseph K. Eischens, Kansas City, MO, Attorneys for Appellant.
Douglas R. Richmond and Casey O. Housley, Kansas City, MO, Attorneys for Respondent, IPC International Corp.
Paul P. Hasty, Jr., and David Curotto, Overland Park, KS, Attorneys for Respondents, Ward Parkway Shopping Center, W.S.C. Associates, L.P., and G.G. Management Co., Inc.
Before: Spinden, C.J., and Ulrich and Smith, JJ.
L.A.C., a minor, by and through her next friend and mother, D.C., appeals the circuit court's summary judgment for Ward Parkway Shopping Center Company, L.P. (WPSCC); W.S.C. Associates, L.P. (WSC); and G.G. Management Company, Inc. (GG), on her claims against them for damages arising from her alleged abduction and rape at the Ward Parkway Shopping Center (the shopping center), which was owned and managed by WPSCC, WSC, and GG (collectively referred to hereafter as the owners/managers). L.A.C. also appeals the circuit court's granting of the motion of IPC International Corporation (IPC), the company with which GG contracted to provide for security for the shopping center, for judgment on the pleadings for failure to state a cause of action on her claim for damages arising out of the same incident.
The appellant raises three points on appeal. In Point I, she claims that the trial court erred in granting summary judgment to the owners/managers of the shopping center on her negligence claims against them based on the court's finding that the appellant would not be able, as required to recover, to establish at trial that they owed a duty to her, as a business invitee, to protect her from criminal attacks by unknown third persons because, as a matter of law, on the undisputed material facts and the facts still in dispute, a reasonable fact finder could find that such a duty had been created. In Point II, she claims that the trial court erred in granting IPC's motion for judgment on the pleadings on her negligence claim against it based on a finding that the pleadings were insufficient to establish a duty owed to the appellant by IPC because her pleadings were sufficient to plead a cause of action for negligence against IPC based on a duty assumed in IPC's contract with GG to provide security for the shopping center. In Point III, she claims that the trial court erred in granting judgment on the pleadings in favor of IPC on her breach of contract claim because her pleadings were sufficient to plead a cause of action for breach of contract against IPC as a third party beneficiary to the contract between IPC and GG.
We reverse and remand.
Facts
L.A.C. is a minor, who on March 15, 1997, when she was twelve years old, visited the shopping center located in Kansas City, Missouri, with a friend, A.G. While there, L.A.C. was allegedly abducted from the shopping center and raped in a catwalk area just outside of the shopping center. As a result, on January 16, 1998, she filed a petition for damages, by and through her next friend and mother, D.C., against WPSCC, the owner of the shopping center; WSC, the manager of the shopping center; and IPC, the security company hired for the shopping center. She alleged that they were negligent in several respects in failing to protect her from the foreseeable risk of harm from the criminal attacks of unknown third persons.
We refer to WSC as the manager of the shopping center, because this is the designation given to it in the appellant's original petition and not disputed by WSC in its answer. We note, however, that in her later amended petitions, the appellant refers to WSC as the owner of the shopping center, but WSC makes no reference at all to its status in any of the corresponding answers.
In support of her petition, the appellant alleged that she and A.G. had gone to the shopping center on the night of March 15, 1997, to see a movie. After leaving the movie, she saw a young man with whom she had spoken at the shopping center the week before. The two sat down on a bench in the common area in front of J.M. Porters and were talking, when he leaned over and gave her a peck on the lips. She was startled, but did nothing. A few minutes later, he grabbed her purse and ran into the hallway next to J.M. Porters, with the appellant in pursuit. Halfway down the hallway, he stopped so that she caught up with him and said, "Give me back my purse." He said, "No, not till you give me a kiss." She agreed to kiss him once and also let him give her a hickey on her neck. He gave her purse back to her, and as she turned to walk away, he grabbed her arm, and said, "Let's do it." The appellant, not realizing what he was referring to, said, "Do what?" He repeated, "Let's do it," while looking her up and down, and she realized that he was referring to having sex. She became scared and said, "No." He responded, "No, come on." She repeated, "No." He said, "No, we're going to do this," and picked her up over his shoulder, ignoring her plea of "put me down, put me down," and pinned her legs down with his arms when she tried to kick him. As he carried her through a doorway of the shopping center, marked as an emergency exit, that led to the catwalk, she screamed and yelled, "Stop. Put me down."
Once outside, the appellant's attacker put her down, with her back against the wall. She tried to get away, but he grabbed both of her arms and pushed her against the wall hollering, "Stay still, stay still, don't move." She squirmed and jerked, asking him to "Stop. Leave me alone. Let me go." He ignored her and pinned her against the wall, trying to unbuckle her jeans. When he couldn't remove her pants because of her struggling, he said, "Forget this," and picked her up over his shoulder again, carrying her around to the other side of the wall and into a cubbyhole. There he threw her down onto the floor, following her down as she landed, placing his knee in her stomach and pinning her arms with his hands. When he removed his hands from her arms in order to remove her pants, she tried to push herself up on her elbows. He simply pushed his knee harder into her stomach, telling her repeatedly, "You better stop moving." She asked him, "Why are you doing this?" but he did not respond. When she tried to scream, he either placed his hand over her mouth or pushed his knee deeper into her stomach. Eventually, she was crying such that she could not scream anymore, and she thought that if she just lay there quietly, he would stop. He did not stop, and he raped her.
After the rape, he was very angry, yelling and swearing at the appellant and calling her a "bitch" while she sat on the floor crying. He eventually said, "Come on. Get up. Let's go," and pulled her up and walked her around the corner back to the doors leading to the shopping center. As they walked, he said, "Fix your shirt. Wipe off your arms. Wipe off your face." As they reentered the shopping center through the doors, he said, "You better not say anything to nobody." The appellant said nothing to him after the rape had occurred. Once in the common area, the appellant and her attacker separated, and she went to find her friend, A.G., whom she located in Aladdin's Castle. She told A.G. what had happened, and then told her mother, who had arrived to pick her up. The mother searched the shopping center for the appellant's attacker, but could not locate him. She then drove A.G. home and took the appellant to St. Joseph's Hospital for examination. While there, her mother reported the incident to the police.
When the young man first grabbed the appellant, A.G. heard her scream and saw the attacker carry her out of the common area of the shopping center. Within one minute, A.G. ran to an IPC security guard and told her that the appellant was in trouble and needed help. She even pointed out the door through which the appellant had been taken and told the guard that the attacker "had his gun showing." The guard ignored her plea for help, saying that the attacker "was just playing." The guard left to attend to something else in the shopping center. A.G. then found another IPC officer and told him the same thing. He also ignored her request for help. The assault on the appellant lasted for 20 minutes.
The appellant did not claim that a gun was used in the rape, nor did she testify that she ever saw the appellant with a gun at any time during the incident.
The appellant alleged in her petition that there had been numerous reports of "violent" crimes occurring at the shopping center in the three years prior to her attack. Specifically, she alleged that from February 1994 to March 1997, there were 74 crimes reported at the shopping center: 61 assaults, 9 aggravated assaults, 2 molestations, 1 kidnapping and 1 rape. As a result of these prior crimes, the appellant alleged that the owners/managers were on notice that they should take reasonable steps to protect shopping center patrons, such as herself, from criminal attacks. She claimed that they breached this duty by failing to take reasonable steps to provide security that would have prevented her alleged abduction and rape. The appellant filed a first amended petition on January 23, 1998, which was identical to the original, except that it did not specify the dollar amount of the punitive damages sought. On October 8, 1998, the appellant filed a second amended petition, in which she added GG as a party defendant.
On August 16, 1999, IPC filed a motion for summary judgment as to the appellant's second amended petition. On August 17, WPSCC, WSC, and GG also filed motions for summary judgment. In their motions, the respondents alleged that they were entitled to judgment as a matter of law in that the appellant had not and would not be able to produce sufficient evidence to establish a requisite proof element of her negligence claim against them, specifically that they had a duty to protect her from the criminal acts of unknown third persons. The appellant filed her response to the respondents' motions and suggestions in opposition on September 28, 1999, alleging that a duty could be found on the facts that were not in dispute and those that were.
The respondents' motions were taken up and heard on October 8, 1999. The trial court, in an "order" dated October 9, indicated that it would sustain the respondents' motions as to the appellant's negligence claims against them, but would allow the appellant to file a third amended petition to give her an opportunity to allege a claim against GG and IPC for negligence, based on a duty assumed by contract, and, in the alternative, for breach of contract as a third party beneficiary. Accordingly, on October 14, 1999, the appellant filed her third amended petition for damages against GG and IPC.
In Count I of her third amended petition, the appellant alleged that she was a third party beneficiary of the management agreement between GG and WPSCC and WSC, which was breached by GG's failure to reasonably protect her at the shopping center from the criminal attacks of unknown third persons. In Count II, she alleged that she was a third party beneficiary of the security agreement between GG and IPC to provide security for the shopping center, which was breached by IPC's failure to reasonably protect her at the shopping center from the criminal attacks of unknown third persons. In Count III, she alleged that GG had assumed a duty in tort under the management agreement to protect her, which was breached. In Count IV, she alleged that IPC had assumed a duty in tort under its security agreement with GG to protect her, which was breached.
GG filed a motion for summary judgment as to the appellant's third amended petition on October 22, 1999. On October 25, 1999, IPC filed a "Motion to Dismiss or, in the Alternative, For Judgment on the Pleadings," alleging, inter alia, that the appellant had failed, in her third amended petition, to plead ultimate facts sufficient to establish a duty on the part of IPC, either contractual or assumed, to protect the appellant from criminal attacks while at the shopping center. The appellant filed her response and suggestions in opposition to GG's motion for summary judgment and to IPC's motion for judgment on the pleadings on November 2, 1999.
On November 22, 1999, the court entered summary judgment for all the respondents as to the appellant's negligence claims against them, as alleged in her second amended petition, finding that she would not be able to establish at trial a duty owed on which to predicate liability. It also entered summary judgment for GG and judgment on the pleadings for IPC on the appellant's claims against them, as alleged in her third amended petition, also finding that she would not be able to establish at trial a duty owed as to her negligence claims against them.
The appellant appeals the trial court's granting of summary judgment for the owners/managers, as to her negligence claims alleged against them in her second amended petition, and the court's judgment on the pleadings for IPC, as to her claim alleged against it in her third amended petition on the alternative theories of negligence and breach of contract.
I.
In Point I, the appellant claims that the trial court erred in granting summary judgment to the owners/managers of the shopping center on her negligence claims against them based on the court's finding that the appellant would not be able, as required to recover, to establish at trial that they owed a duty to her, as a business invitee, to protect her from criminal attacks by third persons because, as a matter of law, on the undisputed material facts and the facts still in dispute, a reasonable fact finder could find that such a duty had been created. We agree.
In considering an appeal from the trial court's grant of summary judgment, we:
will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp . , 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted).
Under Rule 74.04, to be entitled to summary judgment, the respondents, as the movants, were required to show that: (1) there were no genuine issues of material fact; and (2) they were entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin. Corp . , 854 S.W.2d at 377 . When the movants are defending parties, as here, a prima facie case for summary judgment can be established by showing: (1) undisputed facts that negate any one of the claimant's required proof elements; (2) that the claimant, after an adequate period of discovery, has not produced and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's required proof elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support an affirmative defense properly pleaded by the movant. ITT Commercial Fin. Corp . , 854 S.W.2d at 381 . "Regardless of which of these three means is employed by the `defending party,' each establishes a right to judgment as a matter of law." Id .
All rule references are to the Missouri Rules of Civil Procedure (1999), unless otherwise indicated.
To succeed on her premises liability claims of negligence against the owners/managers of the shopping center, as alleged in her second amended petition, the appellant was required to prove: (1) the existence of a duty on the part of the owners/managers to protect her from injury; (2) a breach of that duty; (3) causation; and (4) injury. Madden v. C K Barbecue Carryout, Inc . , 758 S.W.2d 59, 61 (Mo. banc 1988) (citations omitted). With respect to these elements of proof, the appellant, in her second amended petition, Count I, alleged that the owners/managers had a duty to take reasonable steps to protect her, as a business invitee, from the abduction and rape by her assailant because it was a reasonably foreseeable event, given their knowledge of previous, "numerous violent crimes on the Mall premises" from "at least January 1, 1994 to the date of [her] rape." As to a breach of this duty, she alleged that they failed to exercise reasonable and ordinary care, in that they:
(a) . . . negligently failed to provide an adequately trained and competent security guard force to patrol [the] premises;
(b) . . . negligently failed to have a comprehensive security analysis performed by competent security professionals. This analysis should have been used to discover security needs and inadequacies and to correct them;
(c) . . . negligently failed to alert [their] agents, servants and employees to dangers such as those alleged in this petition and to provide them with adequate security training;
(d) . . . negligently failed to provide plaintiff L.A.C. with any warning or notice of the danger of such an attack or the absence of adequate security precautions;
(e) . . . negligently failed to provide adequate lighting on [the] premises at the time of the abduction and rape of plaintiff L.A.C.;
(f) . . . negligently failed to make reasonable use of information concerning the incidents and prevalence of crime on the Mall premises of which they knew, or should have known, and to revise and improve the Mall security system accordingly;
(g) . . . negligently failed to provide adequate supervision of the activities taking place on the Mall premises;
(h) . . . negligently failed to reasonably anticipate a criminal attack, such as the attach [ sic] on plaintiff L.A.C., and to take appropriate actions to prevent the attack;
(i) . . . negligently failed to improve and upgrade [their] security force to keep pace with the increased frequency and severity of crime to persons at the Mall that predated plaintiff L.A.C.'s abduction and rape;
(j) . . . negligently failed to take special precautions to render inaccessible to Mall patrons or otherwise and reasonably safe the remote area where the abduction occurred, as described above.
As to causation and injury, the petition alleged that "[a]s a direct and proximate result of defendants' negligence and carelessness as described above, plaintiff has suffered, and will continue to suffer, severe and potentially life-altering injuries and damages . . . ."
The owners/managers of the shopping center, employing the second means available to a defending party for making a prima facie case for summary judgment, alleged in their motion that the appellant, on the undisputed facts and as a matter of law, would not be able to show at trial the first proof element of her claim, that they had a duty to protect her from the criminal attack by her assailant. In support of their motion, the owners/managers relied on the general rule of premises liability, that a business owner has no duty to protect a business invitee, such as the appellant, from the criminal acts of a third person. Madden , 758 S.W.2d at 61 . Although they recognized that an exception does exist to this rule, the "violent crimes" exception, which was pled by the appellant in her petition, they asserted below that the exception did not apply, given the undisputed facts in the case. In her response to the owners/managers' motion, the appellant contended that on the facts not in dispute and those that were the exception could be found at trial to apply, such that summary judgment for them on the issue of duty was not proper. The trial court disagreed and granted summary judgment to the owners/managers. The issue, then, in this point is whether, as a matter of law, based on the summary judgment record made, a trier of fact could find that the owners/managers of the shopping center had a duty to protect the appellant from the criminal attacks of unknown third persons, based on the "violent crimes" exception to the general premises liability rule that a business owner does not have a duty to protect a business invitee from the criminal acts of unknown third persons.
"The existence of a duty is purely a question of law." Wood v. Centermark Props., Inc . , 984 S.W.2d 517, 523 (Mo.App. 1998) ( citing Aaron v. Havens , 758 S.W.2d 446, 447 (Mo. banc 1988)). Numerous policy reasons have been cited for the no-duty rule, including: (1) judicial reluctance to tamper with traditional, common law concepts; (2) the idea that a deliberate criminal act by a third person is the intervening cause of harm to another; (3) the difficulty that often exists in determining the foreseeability of criminal acts; (4) the vagueness of the standard an owner must meet; (5) the economic consequences of imposing such a duty; and (6) conflict with the public policy that protecting citizens is the government's duty rather than a duty of the private sector. Faheen by Hebron v. City Parking Corp . , 734 S.W.2d 270, 272 (Mo.App. 1987) (citations omitted). Despite the general rule of premises liability that business owners have no duty to protect invitees from the criminal acts of third persons, our appellate courts have recognized that special facts and circumstances can exist in a particular case, such that a duty could be found. Id .; Madden , 758 S.W.2d at 61 .
As to special facts and circumstances giving rise to a duty owed by a business owner to protect an invitee from criminal acts of third persons, our appellate courts have recognized two basic factual situations in which this can occur: "(1) an intentional infliction of injury by known and identifiable third persons; or (2) frequent and recent occurrences of violent crimes against persons on the premises by unknown assailants." Faheen , 734 S.W.2d at 272 (citations omitted) (emphasis added). The only difference between these two theories is the "knowledge of the identity of the offender." Id . at 274. With respect to the first, a duty may arise when a person, known to the business owner to be violent, is present on the premises or a person is present who has conducted himself or herself so as to indicate a danger, and sufficient time exists for the owner to prevent an injury. Id . at 273. As to the second situation, a duty will arise where there have been numerous and recent violent crimes on the premises, by persons who were unknown to the business owner, which were sufficiently similar in type to the incident alleged to have caused injury to the invitee to put the business owner on notice that precautions should have been taken to protect the invitee from the known danger. Id . at 273-74; Knop v. Bi-State Dev. Agency , 988 S.W.2d 586, 589 (Mo.App. 1999). As to this latter situation, the Missouri Supreme Court in Madden , citing the Restatement (Second) of Torts § 344, recognized that:
There is disputed evidence in the summary judgment record that A.G., the appellant's friend, had put several shopping center security guards on notice of the imminent risk of harm to the appellant from another patron, such that an argument might be made that a duty to protect her arose based on a known danger. However, it does not appear from the record that the appellant chose to plead a duty on that basis. In any event, given our disposition of Point I, it is not necessary to our discussion.
The respondents attempt to argue that the violent crimes exception does not apply in this case because the appellant's assailant was not "unknown" to her, or in other words, was known to her. The "unknown" reference in the exception relates to the business owner, not the plaintiff.
[a] duty may arise when the landowner knows or has 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 visitors, even if the landowner has no reason to expect harmful conduct on the part of any particular individual.
758 S.W.2d at 62. This situation is commonly referred to as the "violent crimes" exception, Knop , 988 S.W.2d at 589; Wood , 984 S.W.2d at 524; Groce v. Kansas City Spirit, Inc . , 925 S.W.2d 880, 885 (Mo.App. 1996), on which the appellant relies here to establish a duty owed by the owners/managers with respect to her premises liability claims against them. As to this exception, "[t]he touchstone of the creation of [a] duty is foreseeability; the duty arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury." Bowman v. McDonald's Corp . , 916 S.W.2d 270, 277 (Mo.App. 1995) ( citing Pickle v. Denny's Rest., Inc . , 763 S.W.2d 678, 681 (Mo.App. 1988)).
A review of other jurisdictions indicates that four separate tests or theories are presently being used to determine whether a business owner can be found liable for crimes committed by third persons against invitees: (1) the specific harm rule, followed only in Virginia; (2) the prior similar incidents test, used in Missouri and 12 other states; (3) the totality of the circumstances test, used in 8 states; and (4) a balancing test, used in 3 states. This last test is a recent introduction into the area of premises liability, and has been adopted by California, Tennessee, and Louisiana, all of which previously used one of the other three tests. These states adopted the balancing test because they recognized that the prior similar incidents test can lead to arbitrary results, in that it is applied with different standards regarding the number of previous crimes and the degree of similarity required to give rise to a duty, Posecai v. Wal-Mart Stores, Inc . , 752 So.2d 762, 767 (La. 1999), and the totality of the circumstances test is "`too broad a standard, effectively imposing an unqualified duty to protect customers in areas experiencing any significant level of criminal activity.'" Id . ( quoting McClung v. Delta Square Ltd. P'ship , 937 S.W.2d 891, 900 (Tenn. 1996); accord Ann M. v. Pacific Plaza Shopping Ctr . , 863 P.2d 207, 214-15 (Cal. 1993).
For the violent crimes exception to apply in our case, so as to create a tort duty on which the appellant could recover at trial against the owners/managers, she would have to show that: (1) there existed a relationship between herself and the owners/managers which encouraged her to come to the shopping center; (2) there were prior specific incidents of violent crimes at the shopping center that were sufficiently numerous and recent to put the owners/managers on notice, either actual or constructive, that there was a likelihood that unknown third persons would endanger her safety while at the mall; and (3) the abduction and rape of the appellant was sufficiently similar to the prior incidents of violent crime that a reasonable business owner would have taken precautions to protect her from her assailant. Knop , 988 S.W.2d at 589; Brown v. Schnuck Mkts., Inc . , 973 S.W.2d 530, 533 (Mo.App. 1998). In their motion, the owners/managers did not challenge the ability of the appellant to show the first element of the exception, only the last two. Specifically, they alleged in their motion that the appellant had not produced and would not be able to produce "any evidence that there have been specific incidents of violent crime at the Ward Parkway Shopping Center and that Plaintiff's alleged injury is sufficiently similar in type to any prior specific incidents." In this regard, they asserted that none "of the 75 crimes listed in Plaintiff's Second Amended Petition, other than the one for which Plaintiff brings this action, involve a rape or other sufficiently similar crime."
Accepting the fact that the owners/managers' motion alleged a prima facie case for summary judgment on the basis of there being no duty, the burden then shifted to the appellant to show that the owners/managers were not entitled to summary judgment, as a matter of law. ITT Commercial Fin. Corp . , 854 S.W.2d at 381 . Once the burden shifts, the non-movant must then "show — by affidavit, depositions, answers to interrogatories, or admissions on file that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed," or that, under the undisputed facts, the respondent was not entitled to judgment as a matter of law. Id . ( citing Rule 74.04(e)).
In order to defeat the owners/managers' motion for summary judgment, based on a lack of a duty owed, the appellant in her response thereto alleged that the violent crimes exception would apply, such that a duty could be found to be owed by the owners/managers to the appellant to protect her from criminal attacks by third persons. In support of this allegation, the appellant, in her response, made specific references to incident reports of the shopping center's security firm, IPC, and the Kansas City, Missouri, Police Department, which she had obtained in discovery, citing numerous prior crimes that had occurred both inside and outside the shopping center, in the four years preceding her alleged abduction and rape. Those crimes were reflected by the appellant in the following table:
Date Type of Crime Description of Incident __________________________________________________________________ 3-21-97 Unlawful use of a firearm Offender pointed a gun at victim in parking lot
3-13-97 Assault and Robbery Female victim assaulted and pushed to ground during robbery
3-7-97 Robbery and Abduction A man threatened a young female at knife point in the parking lot
2-26-97 Armed Robbery A man held a gun to a female's neck in the parking lot
2-8-97 Armed Robbery Armed robbery of female in North Parking Lot
1-15-97 Armed Robbery A man points a gun at the victim demanding money in the parking lot
12-10-96 Suspicious Female followed out of Mall by three Person males
12-2-96 Sexual Assault Female pushed against car by male offender who says he would "like to do her"
12-2-96 Aggravated Assault Mall employee threatened with Knife
11-22-96 Armed Robber A man points a gun at the victim demanding money in the parking lot
11-10-96 Aggravated Assault Offender told victim to "shut the fuck up or I'll shoot you"
11-4-96 Obscenity Female food service worker received two pornographic pictures covered with semen
10-26-96 Armed Robbery Armed Robbery at Dillard's in the Mall
9-24-96 Assault Female victim is grabbed around the neck and punched in the mouth inside of the mall by male attacker
9-10-96 Battery Women threatened with gun by a man in the east parking lot
9-23-96 Armed Robbery Offender pushes gun into victim's side in parking lot and demands money
8-30-96 Armed Robbery Male offender sticks gun in female victim's face and demands money
8-20-96 Unlawful use of a Offender pointed a gun at security firearm officers inside mall
8-2-96 Unlawful use of a Offender pointed a gun at security firearm officer in parking lot
7-26-96 Armed Robbery Male points gun at two females in parking lot and steals money bag
7-21-96 Public Indecency Male exposed his penis in theater and fled to the catwalk area
6-18-96 Armed Robbery Helzberg's Jewelry is robbed at gun point
6-18-96 Public Indecency Man masturbates next to female in theater
6-17-96 Sexual Assault Woman walking through Mall door when unknown male grabs her breast
6-1-96 Robbery and Female is assaulted with knife and Abduction kidnapped
5-15-96 Armed Robbery Robbery of female with use of a gun inside of Mall
3-16-96 Assault and Battery Large fight among juveniles in food court
3-2-96 Disorderly conduct A mob of ten teenagers walking through mall and causing problems
2-11-96 Assault and Battery Several juveniles in fight in Mall's food court
1-28-96 Assault Two juveniles in a fight near Aladdin's Castle
1-13-96 Assault Fight between a male and female
1-12-96 Assault Fist fight between two juveniles near theater
12-2-95 Assault and Battery Female severely beaten in Mall's interior
12-1-95 Assault and Robbery Elderly female is knocked to the ground causing head injury and stitches
11-19-95 Suspicious Person Unknown male asked mother and 15 year old daughter if they wanted to have a "threesome" in the parking lot
11-7-95 Assault Female store manager struck in the face by male customer and knocked to the ground
11-6-95 Assault Fist fight at theaters
10-29-95 Battery Man had woman in head lock and was striking her in the face
10-21-95 Public Indecency Male in vehicle approached female, asking for directions. When female approached vehicle, she observed male masturbating
9-29-95 Sexual Misconduct Unknown male assaults a 14 year old girl in movie theater and escalator while asking for sex
8-12-95 Assault Injury causing fight outside of arcade
8-12-95 Disturbance Officer reports having lots of problems with people hanging out throughout the Mall and the Mall parking lot. This has been reported by several different officers and tenants.
7-31-95 Assault and Robbery Women injured when man pushes her to the ground during robbery
7-5-95 Suspicious Person Man observed fondling his genitals
6-30-95 Armed Robbery and Robber sprays mace in store Assault manager's face and steals jewelry
6-12-95 Armed Robbery Mall custodian is assaulted and robbed at knife point resulting in injuries to hands and chest
6-7-95 Disorderly Conduct Male customer at Mall store made sexual advances at female employee
5-25-95 Disorderly Conduct Juvenile observed in roped-off catwalk area
4-10-95 Disorderly Conduct Several juveniles observed fighting near food court
4-9-95 Disturbance Female reported being harassed by two males
3-25-95 Assault Officer assaulted after discovering two people having sex in Mall's interior
3-5-95 Assault Male assaulting a female
2-20-95 Assault and Robbery Elderly female attacked at entrance to store and sustains bruised shoulder and jaw as well as broken finger
2-19-95 Assault and Robbery Women punched in the face by male offender
12-29-94 Assault and Robbery Woman punched in the face by male offender
12-17-94 Disorderly Conduct Five juveniles charged with disorderly conduct for unruly behavior on catwalk area
11-4-94 Public Indecency Male was reported using a mirror to see under female restroom doors
9-17-94 Aggravated Assault Large injury causing fight with use of weapons
8-21-94 Armed Robbery and Two offenders assault victim and Assault steal victim's bicycle
6-19-94 Assault Male threw female into a brick wall outside of mall, causing injuries
6-18-94 Stalking Male stalking female inside Mall
The question, then, is whether these prior reported crimes were sufficient in number, time of occurrence, and character to find that the violent crimes exception applied, creating a duty from the owners/managers to protect the appellant from the type of criminal attack she alleged in her petition, such that her response was sufficient to defeat the owners/managers' motion for summary judgment.
As to what constitutes recent incidents for purposes of the violent crimes exception, despite an argument in prior cases for a "`two year rule' with regard to the admission into evidence of prior crimes on the premises," our appellate courts have not set forth a bright line test as to the appropriate time frame. Bowman , 916 S.W.2d at 278 . Our research discloses cases that have seemingly approved of going back as far as five years, while others only go back as far as two years. See Wood , 984 S.W.2d at 524 (five years); Bowman , 916 S.W.2d at 277 (31 months); Pickle , 763 S.W.2d at 681 (27 months); Madden , 758 S.W.2d at 62 (three years); Decker v. Gramex Corp . , 758 S.W.2d 59, 63 (Mo. banc 1988) (three years); Brown v. Nat'l Supermarkets, Inc . , 679 S.W.2d 307, 309 (Mo.App. 1984) (two years). Here, the parties are in apparent agreement, for purposes of this appeal, that twenty-five months prior to the alleged attack was an appropriate period of time to review for determining whether the owners/managers should have been on notice as to the need to protect the appellant from criminal acts of third persons.
In evaluating the prior incidents relied upon by the appellant to determine if they are sufficiently similar to the incident in question to apply the exception, as she asserts, one consideration is whether they occurred inside or outside of the shopping center. This is so in that our appellate courts have held that, based on relevancy considerations as to the issue of notice, a prior violent crime may be excluded from consideration if it occurred outside and the incident in question occurred inside, or vice versa. Wood , 984 S.W.2d at 524 ( citing Pickle , 763 S.W.2d at 681 ). In our case, for purposes of summary judgment only, there is no dispute as to where the appellant was allegedly abducted, inside the shopping center, or where she was allegedly raped, in a catwalk outside the shopping center. This would seem to raise the question of whether the incident for which the appellant seeks recovery occurred inside or outside the shopping center, or both. However, we note that the parties are in apparent agreement, for purposes of this appeal only, that in determining the application of the exception, it is appropriate to look only at those prior violent crimes that occurred inside the shopping center, rather than outside.
This approach would seem to be consistent with the Supreme Court's holding in Madden , 758 S.W.2d at 62-63 , in which it held that although the plaintiff was sexually assaulted at a location other than the business premises, a cause of action was properly pled under the violent crimes exception where the plaintiff was abducted from the parking lot of the business. In so holding, the court obviously keyed on where the abduction occurred that led to the assault, rather than where the assault occurred.
Limiting our review of the prior crimes cited by the appellant in her response for why the violent crimes exception would apply to those incidents that occurred inside the shopping center, during the twenty-five months immediately preceding the alleged abduction and rape for which she seeks recovery, we find twenty such incidents. These prior crimes consisted of five armed robberies, one of which involved an abduction at knife point; three robberies, one of which involved an assault on the victim; nine assaults, one involving a police officer and one involving an attempted robbery; one incident of the unlawful use of a firearm; and two sexual assaults. Six of these incidents involved the use of a weapon, either a knife or a gun, and seven involved instances where the victim sustained bodily injury. The bodily injuries consisted of cuts, scrapes, bruises, broken bones, and mace in the face. In our view, twenty prior crimes in the twenty-five months immediately preceding the alleged attack on the appellant would be sufficiently numerous to have put the owners/managers on notice that they should have taken all reasonable steps to protect her from the attack. See Pickle , 763 S.W.2d at 682 (9 prior crimes in 27 months); Madden , 758 S.W.2d at 62 (14 prior crimes in 3 years); Decker , 758 S.W.2d at 63 (14 prior crimes in 3 years); Brown v. Nat'l Super Mkts., Inc . , 731 S.W.2d 291, 293 (Mo.App. 1987) (22 prior crimes in 22 months). However, the question remains as to how many of these twenty crimes are violent crimes that are sufficiently similar to the alleged abduction and rape of the appellant such that the violent crimes exception could be found to apply and that the owners/managers could be found to have owed a duty to the appellant to protect her from the attack in question.
Obviously, to invoke the violent crimes exception to the no-duty rule, the prior crimes relied upon must be violent in nature. Brown , 731 S.W.2d at 294 . Violent crimes for purposes of the exception have been defined as "`assaults, robberies, murder, rape, things such as that, that require some attempt at bodily harm or bodily harm together with whatever else may have occurred, such as a robbery.'" Id . Numerous cases addressing the issue suggest that crimes involving weapons, or bodily harm or the attempt thereof, are considered violent crimes for purposes of the violent crimes exception to the no-duty rule. See Wood , 984 S.W.2d at 524; Brown , 973 S.W.2d at 534; Bowman , 916 S.W.2d at 278; Keesee v. Freeman , 772 S.W.2d 663, 669 (Mo.App. 1989); Keenan v. Miriam Found . , 784 S.W.2d 298, 303 (Mo.App. 1990); Pickle , 763 S.W.2d at 681-82; Madden , 758 S.W.2d at 62-63 . Thus, using the definition stated in Brown as our standard, of the twenty crimes cited by the appellant, seventeen would be considered violent. One of the reported "robberies" listed by the appellant would be excluded in that it was a purse snatching, not involving either the use of a weapon or bodily harm, or an attempt of bodily harm, as would the two reported "sexual assaults," which basically consisted of groping only.
As discussed, supra, to invoke the violent crimes exception, the crimes relied upon must not only be violent in nature, but must be sufficiently similar to the incident in question. Faheen , 734 S.W.2d at 274 . As to the similarity requirement of the exception, "[i]t is not necessary that [the crimes cited] be identical to the crime against [the plaintiff], but the nature of the criminal acts must share common elements sufficient to place the [business owner] on notice of the danger and alert it of the safeguards which are appropriate to the risks." Wood , 984 S.W.2d at 524 ( citing Keesee , 772 S.W.2d at 669 ); see also Knop , 988 S.W.2d at 590; Brown , 973 S.W.2d at 534; Becker v. Diamond Parking, Inc . , 768 S.W.2d 169, 170-71 (Mo.App. 1989); Pickle , 763 S.W.2d at 681-82; Nappier v. Kincade , 666 S.W.2d 858, 862 (Mo.App. 1984). Although only in dicta, in Madden , the Missouri Supreme Court, in commenting on the level of similarity required to invoke the exception stated that "abduction, sexual assault, and even murder committed by use of a firearm should be foreseeable based on such street crimes" as arson, robbery, assault, burglary, and stealing. 758 S.W.2d at 63 n. 2. Our review of the cases would lead us to the conclusion that the extent of the commonality of elements necessary to invoke the exception essentially rests on the similarity of the crimes with respect to their violent nature and whether they occurred inside or outside the premises. This is a logical approach in that, to require anything more stringent as to similarity of crimes would, in our view, destroy the underlying logic for establishing the exception in the first instance. By way of example, it simply makes no sense to us to hold that an assault, involving the repeated stabbing of an invitee inside the business premises, which did not result in death, would not be relevant in determining whether the owner was on notice that, in the exercise of ordinary care, he should have taken reasonable steps to protect the plaintiff from a beating from an attacker's fists inside the premises, which did result in death.
The abduction and rape alleged by the appellant did not involve the use of a weapon. Other than the serious emotional and physical trauma that accompanies all rapes, the appellant's alleged injuries consisted of bruises to her stomach, left knee, and arms, as well as scratches and cuts on her elbows from being forcibly abducted and restrained during the nonconsensual act of sexual intercourse. There were no allegations that she was otherwise struck or beaten in any fashion. Rape is a species of sexual assault requiring the added showing of "forcible compulsion." See § 566.030 RSMo 2000 for rape and § 566.040 RSMo 2000 for sexual assault. Thus, in our view, the prior assaults at the shopping center involving a weapon, or bodily harm or an attempt at bodily harm, cited by the appellant, would be sufficiently similar to her alleged abduction and rape to put the owners/managers on notice that business invitees were subject to such assaults, including sexual assaults and rapes. Likewise, in our view, the robberies cited by the appellant involving a weapon, or bodily harm or an attempt at bodily harm, would also qualify for purposes of the exception in that, as in the case of an assault involving a weapon, bodily harm or an attempt to harm, including a rape, a business invitee who is the victim of a robbery is being subjected to violence or a threat thereof.
Inasmuch as the summary judgment record on which the appellant was entitled to rely would, in our judgment, support a finding that the violent crimes exception to the no-duty rule applied, summary judgment for the respondent, on the basis that the appellant would not be able to establish at trial a duty by the owners/managers to have taken reasonable steps to protect her from her alleged abduction and rape, was improper. Accordingly, we must reverse the circuit court's summary judgment for the owners/managers on the appellant's premises liability claim against them.
II.
In Point II, the appellant claims that the trial court erred in granting IPC's motion for judgment on the pleadings on her negligence claim against it based on a finding that the pleadings were insufficient to establish a duty owed to the appellant because her pleadings were sufficient to plead a cause of action for negligence against IPC based on a duty assumed in IPC's contract with GG to provide security for the shopping center. Specifically, the appellant claims that pursuant to the contract, IPC assumed a duty to protect her from the criminal attacks of unknown third persons at the shopping center.
Before addressing the merits of the appellant's claim, as stated in the context of a motion for judgment on the pleadings, we must first address the issue raised by the appellant in her brief as to whether, despite the language used by the trial court in its judgment, it actually disposed of the motion as if it were one for summary judgment. In this regard, the trial court, in its judgment of November 22, 1999, stated that it was granting judgment on the pleadings in favor of IPC as to the appellant's claim for damages, as pled in her third amended petition, on the alternative theories of negligence and breach of contract.
"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Rule 55.27(b).
Where a defendant moves for judgment on the pleadings, allegations of the petition are considered true for the purposes of the motion. The question presented by such a motion is whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.
Main v. Skaggs Cmty. Hosp . , 812 S.W.2d 185, 186 (Mo.App. 1991) (citations omitted); see also Hale ex rel. Hale v. City of Jefferson , 6 S.W.3d 187, 195 (Mo.App. 1999). Thus, in ruling on a motion for judgment on the pleadings, the trial court is limited to a consideration of the pleadings alone. As the appellant points out in her brief, however, "the parties submitted materials outside of the pleadings. The Circuit Court seems to have considered those materials, and its decision may therefore be treated as one granting summary judgment." Based upon our review of the record, including the trial court's judgment entry, we would agree. In this respect, the judgment reflects that, in ruling against the appellant on IPC's motion, rather than accepting the facts pled by the appellant as true and then ruling, as a matter of law, that they were insufficient to state a cause of action, the standard for ruling on a motion for judgment on the pleadings, the trial court found that the appellant would not be able to "prove" the allegations of her petition at trial, one of the three tests for determining whether a defending party is entitled to summary judgment. ITT Commercial Fin. Corp . , 854 S.W.2d at 381 .
Rule 55.27(b) provides, in pertinent part:
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.
Thus, because the record here would reflect that, in ruling on IPC's motion for judgment on the pleadings, the trial court considered matters outside the pleadings, IPC's motion was effectively treated and disposed of by the court as a motion for summary judgment. However, to consider matters outside of the pleadings and treat a motion for judgment on the pleadings as one for summary judgment under the rule, the trial court, as a matter of due process, must first give the parties notice that it intends to do so and provide them with a reasonable opportunity to present all materials made pertinent to a motion for summary judgment. Arnold v. Am. Family Mut. Ins . , 987 S.W.2d 537, 539 (Mo.App. 1999); Keim v. Big Bass, Inc . , 949 S.W.2d 122, 123 (Mo.App. 1997).
Although there can be no doubt from the record that the trial court, in effect, treated and disposed of IPC's motion as one for summary judgment, the record would further indicate that the court never formed a conscious "intent" to do so, such that it would have given notice thereof to the parties. However, on appeal, neither party raises this as an issue, and the record would indicate that the parties had ample opportunity to, and did present an extensive amount of materials outside the pleadings for the court's consideration, including submitting suggestions in support of and opposition to IPC's motion. As such, we do not discern any prejudice from the trial court's failure to give notice to the parties that it was treating and disposing of IPC's motion as a motion for summary judgment, and even if there were prejudice, it has been waived by the parties' failure to object on appeal. Keim , 949 S.W.2d at 125 . Accordingly, we do not find a due process violation which would require us to reverse and remand for further proceedings in compliance with the Rule 74.04 procedure, but will review the appellant's claim of error raised in this point as if the trial court had granted summary judgment to IPC on the appellant's negligence claim against it for damages, using the summary judgment standard of review enunciated, supra, in Point I.
In her third amended petition, Count IV, the appellant alleged a claim of negligence for damages against IPC based on the breach of an assumed duty by IPC to protect her from the criminal acts of unknown third persons by its contracting with GG to provide security for the shopping center. To succeed on this claim, the appellant was required to plead and prove: "(1) the duty or obligation of the [respondent] to protect [her] from injury, (2) a failure to discharge such duty, and (3) injury proximately resulting from such failure." Wolfmeyer v. Otis Elevator Co . , 262 S.W.2d 18, 21 (Mo. 1953) (citation omitted). In contending in its motion that the appellant could not succeed on her negligence claim against it, IPC attacked the second proof element of the appellant's negligence claim, asserting that the appellant did not plead and could not prove that IPC assumed a duty under its contract with GG to protect her from the criminal acts of unknown third parties while at the shopping center. In support of its contention, IPC argued that it did not assume by contracting with GG a duty to protect the appellant in that: (1) to do so, the contract with GG would have had to have contained, but did not, express representations by IPC insuring the appellant's personal safety while at the shopping center; and (2) IPC could assume no greater duty than the duty assumed by the owners/managers of the shopping center, including GG, and the trial court, in granting the owners/managers' motion for summary judgment, had already determined that they did not owe a duty to protect the appellant, as a matter of law. Given our disposition of Point I, supra, we find IPC's second argument to be without merit. As to its first argument, the appellant contends that, as a matter of law, on the facts in dispute and those not in dispute, a fact finder could find at trial that, pursuant to IPC's contract with GG, IPC assumed a duty to protect her from the criminal acts of unknown persons while she was at the shopping center. Thus, the issue in this point is whether, on what would be considered the summary judgment record presented, the trial court would have been justified in granting summary judgment to IPC on the appellant's negligence claim against it based on the inability of the appellant to show a duty owed to her by IPC to protect her from the alleged abduction and rape at the shopping center.
As a general proposition, tort liability may be predicated on the breach of a duty assumed pursuant to a contract. Brown , 679 S.W.2d at 309; Westerhold v. Carroll , 419 S.W.2d 73, 80 (Mo. 1967) ( citing Helm v. Inter-Ins. Exch. for Auto. Club of Mo . , 192 S.W.2d 417, 420 (Mo. banc 1946); Lowery v. Kansas City , 85 S.W.2d 104, 110 (Mo. 1935)); Wolfmeyer , 262 S.W.2d at 22; Lambert v. Jones , 98 S.W.2d 752, 758 (Mo. 1936). The Missouri Supreme Court, when it first addressed this issue in Roddy v. Mo. Pac. Ry. Co . , 15 S.W. 1112 (Mo. 1891), held that a party who had contracted with another owed no duty to a person who was not a party to the contract where there was no privity or direct transaction between them. Id . at 1114 ( citing Winterbottom v. Wright , 152 Eng. Rep. 402 (Q.B. 1842)). However, subsequently, in Westerhold , the court recognized that the rule of privity should not be followed where "the application of the rule would produce a result contrary to the requirements of essential justice and sound public policy." 419 S.W.2d at 77 (citation omitted). Thus, the court went on to hold that "a party by entering into a contract may place himself in such a relation toward third persons as to impose upon him an obligation to act in such a way that the third persons will not be damaged." Id . at 80 ( citing Wolfmeyer , 262 S.W.2d at 22 ). In determining whether, as a matter of public policy, a defendant could be found to have assumed a duty of care to the plaintiff pursuant to a contract to which the plaintiff was not in privity and on which tort liability could be predicated, the court in Westerhold set forth the following factors for consideration:
IPC cites Preferred Physicians Mut. Mgmt. Group v. Preferred Physicians Mut. Risk Retention , 918 S.W.2d 805 (Mo.App. 1996) and Khulusi v. Southwestern Bell Yellow Pages, Inc . , 916 S.W.2d 227 (Mo.App. 1995) for the proposition that if an act would not be a tort absent a contract, a mere breach of a contract would not create one. However, we would agree with the Preferred Physicians court that that proposition only applies where one party to the contract is attempting to sue another party to the contract in tort based upon a breach of a duty created by the contract, which is not our case. Preferred Physicians , 918 S.W.2d at 814 .
the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to defendant's conduct, and the policy of preventing future harm.
Id . at 81 (citation omitted).
In addition to citing us to Westerhold , supra, as support for her contention that IPC could be found by a fact finder at trial to have assumed a duty in tort to protect her from the alleged criminal acts of her assailant, the appellant cites us to Brown . In Brown , the Eastern District of this court addressed the issue of whether a security company, which had contracted with a supermarket to provide security for the premises, had assumed a duty in tort to protect the plaintiff, a business patron of the supermarket, who was alleged to have been injured as a result of a criminal assault on the premises. 679 S.W.2d at 309. The trial court entered summary judgment for the security company, based on a finding, as a matter of law, that a duty of the company to the plaintiff could not be found based on the company's contract with the supermarket to provide security. Id . at 308. The appellate court reversed the summary judgment for the security company holding that, inasmuch as the contract provisions were "not in evidence," there existed a factual dispute as to whether the company had assumed a tort duty to the plaintiff by contracting with the supermarket for security. Id . at 310. We have no quarrel with the appellant citing Brown for the proposition that a security company can be found to have assumed a duty in tort to protect a patron of a business based on the security company's contracting with the business to provide security. However, in holding as it did, we note that the court in Brown failed to engage in the Westerhold public policy analysis as we believe was necessary in determining the issue presented.
In making this reference, we assume the court was referring to the summary judgment record allowed by Rule 74.04.
After reviewing the public policy factors enunciated in Westerhold , we believe that, as a matter of law, IPC could be found to have a duty to protect the appellant from the criminal acts of unknown third persons. As to the first factor, the extent to which the agreement between IPC and GG to provide security for the shopping center was intended to affect the appellant, we must look to the language of the agreement to determine the parties' intent. See Tuttle v. Muenks , 21 S.W.3d 6, 9 (Mo.App. 2000) (holding that where the contract language is plain and unambiguous, we will determine the intent of the parties based solely on the contract's language). The stated purpose of the agreement was for IPC to provide security at the shopping center. As to the specific duties required, the agreement provides:
The actual language used in the Security Agreement is as follows:
PURPOSE
WHEREAS, the Manager [GG] requires security services at various shopping center locations managed by Manager throughout the United States and desires to engage the services of CONTRACTOR [IPC]; and
WHEREAS, CONTRACTOR is a professional security service provider and desires to provide the services required by Manager;
NOW, THEREFORE, in consideration of the agreement hereinafter set forth, the parties do hereby agree as follows:
. . .
3. . . . at a minimum, [the security officers will] perform the following general security duties:
A. Make frequent, random rounds of the premises, the common areas of the center, sidewalks, parking lots, ring roads, checking gates, doors, windows, and lights. Make frequent, random motorized patrols of the parking lots and ring roads, and perform other Security tasks as instructed by Manager. The times and locations of security checks shall be verified in a shift report prepared by the Security Officers.
B. Report immediately to representatives designated by the Manager any unusual incidents, hazardous conditions, accidents, defects, suspicious activities, or criminal activities observed during the shift.
. . .
H. Under normal circumstances, an employee or agent of the CONTRACTOR shall avoid making an arrest of any kind; provided, however, the employees or agents of the CONTRACTOR may detain an individual when necessary to protect either that individual or mall customers or employees from risk of serious injury.
I. CONTRACTOR shall instruct Security Officers to patrol assigned areas; observe activities; conduct routine rounds of the interior and exterior of the premises and complete reports. CONTRACTOR shall provide training to its employees to insure such employees know the general orders for Security Officers and the special orders for any post to which he/she is assigned. CONTRACTOR's officers shall safeguard equipment and material against damage, theft, loss or unauthorized use; and stay alert for any security or safety hazards at all times.
J. Manager has adopted a comprehensive Security Orders — Policy and Procedures Manual (herein "the manual".) The manual includes Manager's instructions to CONTRACTOR and a copy of Manager's Safety Regulations. CONTRACTOR and its employees shall be familiar with and will adhere to those instructions and regulations at all times. CONTRACTOR shall disseminate such manual to all Security Officers and shall insure that said Security Officers comply with the content thereof.
The contract further provides:
IV. MINIMUM TRAINING REQUIREMENTS
1. CONTRACTOR will insure each officer successfully completes the Manager's security training program, or another training program approved by the Manager.
The "Introduction" to the "Policies and Procedures Manual," incorporated in the agreement pursuant to paragraph I.3.J., states:
In each Center, Mall Management endeavors to create a safe, orderly atmosphere in which customers may relax and shop without undue concern for their own safety. In order to sustain and insure this positive atmosphere, the management of your Center has retained the services of IPC International Corporation to provide Mall Public Safety Services.
See President Riverboat Casino-Mo., Inc. v. Mo. Gaming Comm'n , 13 S.W.3d 635, 641 (Mo. banc 2000) (holding that "[i]ncorporation by reference may be by a `specific and descriptive reference' to the source adopted," thus incorporating that source into the agreement). Finally, the training guide used in IPC's security training program referenced in paragraph IV.1. of the agreement, includes a chapter entitled "PARKING LOT SECURITY, Basic Training — UNIT IV, Assaultive Behavior" that specifically recognizes that "the potential for sexual assault is present." Another chapter in the guide, entitled "LEGAL POWERS LIMITATIONS, Basic Training — UNIT V," states that "[t]he personal safety of yourself, fellow Officers, customers and tenants to the mall is the absolute priority at all times." This chapter goes on to state that:
Our clients are most concerned with the well being of visitors, customers and employees of the shopping center. It is for this reason that Public Safety personnel are present. Our client understands their responsibility to the public to provide a safe, orderly environment for shoppers and employees alike . . . In this training unit we will examine in greater detail, the procedures for handling unlawful incidents which may occur at the center.
Giving the cited language and incorporated language of the agreement its plain and ordinary meaning, it is clear that it could be found that, in significant part, the intent of the security agreement between GG and IPC was to provide a safe environment for shopping center patrons, including the appellant, recognizing the potential for their being criminally attacked, including being sexually assaulted. This, then, would satisfy the first public policy factor of Westerhold .
Further support for finding that the parties' agreement was meant to affect the appellant can be found in the deposition testimony of various representatives and employees of IPC. In his deposition, Donald P. Lantz, the executive vice-president and co-owner of IPC, testified that one of the objectives of IPC at a shopping mall was to deter and prevent crime. Jerome Coudriet, a security officer working for IPC at the shopping center, testified in his deposition that it was his understanding that he was hired to protect the customers of the shopping center. Daniel Viets, a former security officer of IPC, testified in his deposition that in patrolling the shopping center, he was to protect customers at the shopping center from criminal activity as best as he could.
Having determined that the first public policy factor favored the appellant's being able to establish at trial a duty owed by IPC on which to base tort liability, we turn to the second factor, the foreseeability of harm to a patron, should IPC fail to reasonably provide the security at the shopping center as agreed upon. Regarding this factor, as we found in Point I, supra, it could be found that the shopping center owners/managers were on notice that the appellant was potentially at risk of violent criminal attacks by unknown third persons similar in nature to those she allegedly sustained. As such, one could reasonably find that it was foreseeable that the failure of IPC to provide the agreed-upon security would result in harm or injury to a patron from such attacks. In support of this proposition is the deposition testimony of Coudriet, who testified that "at anytime at anyplace of the mall there's a likelihood of a sexual assault occurring." Further, he agreed with the finding from a previous security audit conducted of the shopping center that "the catwalk area . . . was a cause for security officers to constantly patrol due to the high level of incidents that took place there." Further support is found in the deposition testimony of Lantz:
Q: Isn't it true that IPC employees are instructed that rape is one of the concerns that they are to keep in mind for areas in and around the shopping center that are poorly lit or are isolated?
A: Rape is a crime that we are constantly vigilant for in all areas of the shopping center.
Finally, support is found in the deposition testimony of Nathan Swann, a former IPC security officer at the shopping center from August 1995 through March 1997, and October 1997 through May 1998, who agreed that he "foresaw the possibility of sexual assaults or rapes as having the potential to occur" at the shopping center.
As to the third policy factor of Westerhold , the degree of certainty that the appellant suffered injury from IPC's failure to provide security as agreed upon, it would also cut in favor of a duty by IPC to protect the appellant. In this regard, the summary judgment record, on which the appellant is entitled to rely, would certainly support a finding that she suffered injury. The appellant's evidence would indicate that she was abducted and raped, and in the course thereof sustained cuts, scratches, and bruises as a result of being forcibly restrained by her assailant, as well as the obvious physical and emotional injuries associated with being raped. Further, at the time of her deposition, almost three years after the incident occurred, she testified that she was still undergoing counseling. While the respondents, in an attempt to show that no crime or injury occurred as alleged, denied that the appellant was abducted and raped, and contended that she merely "had sex," the deposition testimony of the appellant and her friend, A.G., would support the fact that she was abducted and raped, and was injured as a result.
A review of the fourth factor, the closeness of the connection between the respondent's conduct and the injury suffered, would also favor a finding of a duty owed by IPC. In her response to IPC's motion for summary judgment, the appellant included various deposition testimony of IPC employees in support of her allegations that the respondent's conduct in providing security was deficient and "led to the attack in the present case." First, in her deposition, A.G. testified that she made several requests of IPC security officers to help the appellant, which went unheeded. Second, Steven Breshears, IPC's Director of Public Safety at the shopping center, testified that "part of the job duty of an IPC Security officer is to report to the appropriate individuals at the mall that a light is out if the officer observes that." However, according to the appellant's deposition, the lights where she was raped were burned out. Third, according to the deposition of Viets, there had been previous discussions by the security officers "that it would be a good thing for management to install a security alarm on the door" that led from the shopping center to the catwalk and through which the assailant carried the appellant to rape her. According to the appellant's deposition, no alarm was ever installed, which allowed her assailant to carry her out the emergency door without detection. Finally, Coudriet testified in his deposition that seven officers were normally needed to patrol the shopping center, and if they wanted to staff the rooftop positions, referred to as Eagle One and Eagle Two, which overlook the catwalk on which the appellant was allegedly raped, at least ten or more officers would be needed. However, Swann testified in his deposition that, on the night of the appellant's attack, only six officers were on duty.
As to the fifth factor, the moral blame attached to the respondent's conduct, it also would support the imposition of a duty on IPC to protect the appellant from criminal acts of unknown third persons while at the shopping center. Obviously, shopping centers, such as the one in question, are in the business of attracting shoppers. It goes without saying that to attract shoppers, a business owner must provide a reasonably safe shopping environment. It stands to reason that people would be very hesitant to patronize a business at which they would be at risk of a violent criminal attack. Consequently, as to a shopping center that has experienced violent criminal activity in the past, such as allegedly had occurred at the shopping center here, a patron would be less likely to shop there, unless steps were taken to provide reasonable security. Thus, as expressed in the parties' agreement, the owners/managers were vitally interested in providing security for patrons of the shopping center. In our view, where a shopping center has held itself out as having security for its patrons, in an attempt to attract business, and the security company employed for that purpose understands that patrons are relying on it to provide reasonable security in protecting them and it fails to provide such security, society would attach significant moral blame to this failure. This would be especially true where the victim is a young person, such as here. In our case, the summary judgment record on which the appellant was entitled to rely, would support, inter alia, the fact that IPC had not taken all reasonable steps to protect the appellant and other patrons from a foreseeable risk of harm from the criminal acts of unknown third persons and that its security officers twice ignored A.G.'s requests to help the appellant after she was known to be in danger. In this regard, one officer, in refusing to help A.G., told her that the appellant and her assailant were "just playing around." Clearly, where a security company fails to provide reasonable security, which was intended by a business owner, in part, to protect patrons of the business from violent criminal attacks, which failure results in the abduction and rape of a twelve-year-old girl, the moral blame attached by society would be great.
As to the sixth factor, the policy of preventing future harm, as we discussed in Point I, supra, the managers/owners of the shopping center, under the violent crimes exception, could be found to be on notice as to the need to provide security for patrons of the center. Thus, public policy would favor imposing a duty on IPC by virtue of its contract with GG to provide security for the shopping center in an attempt to protect shopping center patrons against foreseeable future harm to them, specifically, violent criminal attacks.
Based upon our Westerhold public policy analysis, we find that, under a given set of circumstances, it could be found that IPC assumed a duty, under the terms of its contract with GG to provide security for the shopping center, to protect the appellant from criminal attacks, such as her alleged abduction and rape. Accordingly, summary judgment for the respondent on the ground that the appellant could not establish at trial a tort duty on which to predicate a claim for damages against IPC for negligence was error.
Inasmuch as we have determined in this point that the appellant should have been allowed to proceed on her claim of negligence against IPC, on an assumed duty under IPC's contract with GG, and summary judgment for IPC, a defending party, would only have been proper if IPC demonstrated that the appellant was not entitled to recover against it, as a matter of law, under any theory pled, we must reverse the trial court's grant, in effect, of summary judgment for IPC on the appellant's claim for damages, without discussing the merits of the appellant's claim in Point III, with respect to her breach of contract theory of recovery against IPC. Rule 74.04(c); Robinson v. Mo. State Highway Transp. Comm'n , 24 S.W.3d 67, 81 (Mo.App. 2000) (citation omitted).
Conclusion
The circuit court's grant of summary judgment for WPSCC, WSC and GG on the appellant's claims of negligence in her second amended petition is reversed, and the cause remanded for further proceedings consistent with this opinion. The circuit court's grant of summary judgment (albeit denominated a judgment on the pleadings) for IPC on the appellant's claim against it in her third amended petition, is reversed, and the cause remanded for further proceedings consistent with this opinion.
We recognize that the respondents filed a motion to strike the appellant's reply brief, which motion was taken with the case. Inasmuch as we did not rely on any of the arguments made in the appellant's reply brief in deciding this case, it is unnecessary to rule on the respondents' motion.