Opinion
Nos. ED74302 ED74303
OPINION FILED: December 21, 1999
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HONORABLE DAVID C. MASON.
Ronald C. Willenbrock, 515 Olive Street, Suite 1700, St. Louis, MO 63101, for appellant.
Karen A. Greenburg, Michael J. Schaller, 100 South Fourth Street, Suite 600, St. Louis, MO 63102, for respondent.
Susan Ford Robertson, 609 East Walnut, Columbia, MO 65201-4490, for Amicus Curiae.
Defendant Sinclair Oil Corporation appeals a jury verdict in favor of Plaintiff Edward Smoote awarding Plaintiff $375,000.00 in damages for injuries Plaintiff sustained when he was shot by an unknown gunman on Defendant's property. Defendant raises numerous allegations of error on appeal, including that the trial court erred in denying Defendant's Motion for Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict ("JNOV") because: (1) Plaintiff's claim is barred by the "fireman's rule"; (2) Plaintiff failed to prove the existence of "special facts and circumstances" necessary to establish Defendant's duty to protect Plaintiff from criminal attack; (3) extending a duty to Defendant to protect Plaintiff against criminal attacks by unknown third parties is both unconstitutional and void as against public policy; and (4) the trial court erred in instructing the jury in that: (a) instruction number 9 failed to require a finding that a danger existed on Defendant's premises greater than everyday danger and allowed the jury to speculate as to the terms "danger" and "reasonably safe," (b) instruction number 6 allowed Plaintiff to recover future damages despite the lack of evidence supporting such damages, and (c) the verdict form improperly contained prejudicial language indicating it was submitted by Plaintiff and given by the judge.
Defendant also contends that the trial court erred in: (5) refusing to submit a comparative fault instruction; (6) allowing Plaintiff to read into evidence hearsay statements contained within police reports; and (7) failing to strike Sergeant Donald Cummings' opinion testimony, because Plaintiff never identified him as an expert and his testimony was both prejudicial and surprising to Defendant.
Plaintiff cross-appeals, claiming that the trial court erred in refusing to submit a punitive damages instruction to the jury because Plaintiff presented clear and convincing evidence of Defendant's complete indifference to or conscious disregard for the safety of its invitees. We affirm in part, and reverse and remand in part.
I. Facts
Defendant owned and operated a service station located at 1401 East Grand, which is known as a "high crime area" within the City of St. Louis. In addition to selling gasoline, Defendant also operated a convenience store, which sold a variety of sundry items, and made public pay telephones available for the use and convenience of its customers and the general public. Defendant earned income from the public pay telephones, equaling twenty percent of the revenues Southwestern Bell collected from the pay phone.
At approximately 8:40 p.m. on August 20, 1994, Plaintiff, an off-duty police officer employed by the St. Louis Metropolitan Police Department, stopped at Defendant's service station to use the public telephone. Plaintiff was dressed in plain clothes, driving his personal vehicle, and was carrying his department-issued weapon, badge and identification. He stopped his vehicle approximately three to four feet away from a concrete retaining wall, facing a fence that ran between the retaining wall and the service station's building.
While Plaintiff talked on the telephone, he became aware of a man standing six to eight feet to his right, who was pointing a revolver at him. The gunman began demanding that Plaintiff turn over all his possessions. Plaintiff put the telephone down, and identified himself as a police officer. Plaintiff testified that by informing the assailant that he was a police officer, he intended for the individual to abandon his efforts, turn around and run away. Instead, the perpetrator shot Plaintiff in the left arm and abdomen and then attempted to flee. Only after he was shot did Plaintiff draw his service weapon and fire at the assailant.
Plaintiff filed a worker's compensation claim in connection with his injuries and received benefits from the St. Louis Police Department and the Second Injury Fund.
Plaintiff also filed a lawsuit against Defendant, alleging that he was a business invitee of Defendant, and that Defendant failed to use ordinary care to make its premises reasonably safe from the threat of criminal attack by unknown third persons. At trial, the service station's manager, James Williams, testified that violent criminal activity occurred on Defendant's premises "every day to every other day" and that he was afraid for both his safety and the safety of others. In fact, during the two-year period between August 20, 1992, and August 19, 1994, the St. Louis Police Department accumulated twelve police reports documenting violent crimes on Defendant's property. The crimes committed included the following: six armed robberies; one attempted armed robbery; two incidents of assault, including one against a police officer; one incident of first degree burglary; and two reports of stealing. Mr. Williams himself was robbed at gunpoint on at least two occasions, the most recent incident occurring on July 28, 1993, one year prior to the incident involving Plaintiff.
Evidence was also presented at trial that Defendant took several steps in 1989 and 1990 to protect its buildings and its employees from violent crime and vandalism, including remaining open twenty-four hours a day, changing to a self-service operation, placing its employees behind a locked door and a bullet-proof glass cashier's cage. However, the evidence revealed the corporation did little to protect its patrons. Despite Mr. Williams' requests to supervisors that the premises be provided with a security guard, Defendant failed to respond to his requests and did not provide a security guard. Mr. Williams also asked John Hea, a district manager for Defendant, to remove the pay telephones from the premises because that was where most of the criminal activity occurred. Mr. Hea, however, denied Mr. Williams' request because Defendant was earning too much revenue from the pay telephones. In essence, Defendant refused to take steps necessary to decrease crime on its premises because the gas station's pay phones were earning total average monthly revenue of $85.00.
Defendant's refusal to provide its service station with necessary safety measures designed to protect patrons occurred despite warnings from at least two St. Louis police officers. Officer Michael Tillman testified that he had several conversations with station attendants about criminals escaping through a poorly maintained fence located behind the service station building, and also stated that he asked the manager to remove the pay phones "because that was part of the problem." Sergeant Douglas Cummings also testified that he spoke to an individual, whom he believed to be the station manager, and "strongly suggested to him they should consider some kind of security guard to be hired as visible presence of some law enforcement at the station there on the grounds."
Instead of addressing the safety issues raised by Mr. Williams, Officer Tillman and Sergeant Cummings, Defendant employed measures designed to minimize the apparent threat of danger and encourage customer patronage by removing graffiti from the premises. According to Alvin Mitchell, Defendant's manager for safety, training and security, the presence of graffiti was a "negative" because a "customer would prefer not to come in where there's a lot of graffiti. If you remove the graffiti, the customer doesn't necessarily think that there's a problem there. So, you know, they continue to deal with you."
Defendant filed a Motion for Directed Verdict both at the close of Plaintiff's case and at the close of all the evidence, contending in part that Plaintiff failed to make a submissible case on the issue of punitive damages. The trial court granted Defendant's motion with respect to the punitive damages, and the jury was not instructed with respect to that issue.
Based upon the evidence presented above, the jury returned a $375,000.00 verdict in favor of Plaintiff. Defendant filed its Motion for New Trial and Motion JNOV as to the issues of liability and compensatory damages. Both post-trial motions were denied, and Defendant filed this timely appeal. Plaintiff filed a cross-appeal challenging the trial court's refusal to submit its punitive damages jury instruction.
We will first address Defendant's points on appeal, which primarily concern the issue of Defendant's liability in the case, and then discuss Plaintiff's cross-appeal regarding the issue of punitive damages.
II. Analysis A. Application of the Firefighter's Rule
Defendant first argues that the trial court erred in denying its Motion for Directed Verdict and Motion JNOV because Plaintiff's claim is barred by application of the firefighter's rule. We disagree and find that the firefighter's rule is inapplicable, because Plaintiff was not brought into contact with the emergency situation solely by reason of his status as a police officer.
The firefighter's rule precludes tort recovery by public safety officers in certain situations, including those in which police officers are injured by reason of their response to an emergency situation created by the ordinary negligence of another. As stated by the Missouri Supreme Court, "the rule provides that a police officer brought in contact with an emergency situation solely by reason of his status as a [police officer] who is injured while performing [a police officer's] duties may not recover against the person whose ordinary negligence created the emergency." Gray v. Russell, 853 S.W.2d 928, 930 (Mo.banc 1993). The rule recognizes that as a matter of public policy, emergency personnel must be expected to confront certain hazards on behalf of the public. Krause v. United States Truck Co., Inc., 787 S.W.2d 708, 711 (Mo.banc 1990). Moreover, the costs of especially hazardous government functions such as policing should be borne by society as a whole, rather than by any individual member of society under ordinary tort principles. Phillips v. Hallmark Cards, Inc., 722 S.W.2d 86, 88 (Mo.banc 1986).
As alluded to above, the following four elements must be established in order for the firefighter's rule to apply and bar Plaintiff's recovery against Defendant: (1) a police officer must be brought in contact with an emergency situation; (2) the officer must be brought in contact with the emergency solely by reason of his status as a police officer; (3) the officer must be injured while performing his duties; and (4) the officer may not recover against the person whose ordinary negligence created the emergency.
Here, we find that the first element of the firefighter's rule is satisfied; an armed assailant pointing a cocked and loaded gun at Plaintiff's head and attempting to rob him of his personal belongings certainly constitutes an emergency situation.
However, we disagree with Defendant's argument that Plaintiff was brought into contact with the emergency situation solely by reason of his status as a police officer. He was not summoned to the service station in his role as a police officer to confront a hazard, nor did his occupation have anything to do with his involuntary contact with this emergency situation. Instead, Plaintiff was an off-duty officer who arrived at the service station in his personal automobile and wearing street clothes in order to use the public pay telephone made available by Defendant. In fact, Plaintiff testified that the reason he identified himself as a police officer to the gunman was to defuse the emergency situation and encourage the assailant to flee, not to apprehend or arrest the assailant. Moreover, he had not even removed his police credentials before being shot twice by the armed perpetrator.
We further disagree with Defendant's analogy of the present situation to the facts of Hockensmith, where the Western District held that the firefighter's rule shielded a premises owner from liability. 929 S.W.2d 840 (Mo.App.W.D. 1996). There, a uniformed police officer, equipped with department-issued sidearm and pepper spray and driving a marked patrol car, stopped at a convenience store to buy a cup of coffee before reporting for roll call. Id. at 843. The officer saw the defendant causing a disturbance in the parking lot, and approached him to defuse the situation. Id. While the officer's attention was diverted, he was struck and injured by the defendant. Id.
According to the Western District, the critical and dispositive inquiry in determining the firefighter's rule's applicability is into the motive that led the officer to become involved in the emergency, not what originally led the officer to the store.Id. The emergency situation arose when the officer saw the defendant creating a disturbance in the parking lot. Id. The officer then decided to approach what appeared to be a volatile situation in order to defuse the emergency; the emergency situation did not approach him.
Unlike the situation in Hockensmith where the police officer voluntarily approached the emergency situation, Plaintiff was thrust into the emergency when the armed assailant pointed a cocked and loaded gun at Plaintiff and attempted to rob him. Therefore, Plaintiff is no different from other crime victims on Defendant's premises who were injured at the hands of armed perpetrators. This is especially true given that Plaintiff was not identifiable as a police officer to the gunman until after the robbery was in progress, and he identified himself as such. Thus, Plaintiff was not brought into contact with the emergency situation solely by reason of his police officer status, and therefore the firefighter's rule does not bar his recovery for injuries suffered on Defendant's property.
Based upon our conclusion that the firefighter's rule does not apply because Plaintiff was not brought into contact with the emergency solely by reason of his police officer status, we need not discuss the third or fourth elements necessary for the firefighter's rule to apply. Point denied.
B. Defendant's Duty Owed to Plaintiff
Defendant next contends that if the firefighter's rule does not shield Defendant from liability, then the trial court erred in denying his Motion for Directed Verdict and Motion for JNOV because Plaintiff failed to establish that Defendant had a duty to protect him from the deliberate, violent criminal acts of third parties.
The denial of a motion for JNOV presents the same issue as a motion for a directed verdict. The question in both cases is whether plaintiff has made a submissible case. Wells v. Orthwein, 670 S.W.2d 529, 532 (Mo.App.E.D. 1984). A case is not to be submitted to the jury unless each and every fact essential to liability is predicated upon legal and substantial evidence.Dildine v. Frichtel, 890 S.W.2d 683, 685 (Mo.App.E.D. 1994). "Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case." Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 880 (Mo.App.E.D. 1985). The questions of whether evidence in a case is substantial and whether inferences drawn are reasonable are questions of law. Id. We review the evidence and all reasonably inferences to be drawn therefrom in the light most favorable to that plaintiff. Steward v. Goetz, 945 S.W.2d 520, 528 (Mo.App.E.D. 1997).
Although normally a landowner has no duty to protect business invitees from the criminal acts of unknown third parties on its premises, Missouri courts have recognized an exception to the general rule and have imposed a duty of care when "special facts and circumstances" exist. Madden v. CK Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo.banc 1988). To state a cause of action under the special facts and circumstances exception, Plaintiff must prove: (1) the necessary relationship between himself and Defendant, that of a business or property owner to an invitee; (2) the prior specific incidents of violent crimes on the premises that are sufficiently numerous and recent to put Defendant on notice, either actual or constructive, that there is a likelihood that persons will endanger the safety of its invitees; and (3) the incident causing the injury is sufficiently similar in type to the prior specific incidents occurring on the premises that a reasonable person would take precautions against that type of activity. Keenan v. Miriam Foundation, 784 S.W.2d 298, 302 (Mo.App.E.D. 1990).
According to Defendant, Plaintiff failed to establish the existence of such duty because he did not provide sufficient evidence that: (1) he was a business invitee of Defendant at the time of the alleged injury; and (2) a sufficient number of similar violent crimes had occurred on the premises within the recent past. We disagree.
1. The Necessary Relationship
According to Defendant, Plaintiff was not a business invitee, despite his entrance onto the property to use the pay telephone made available by Defendant, because there was no credible evidence adduced at trial to support the conclusion that the telephones were connected to Defendant's business dealings. Moreover, Defendant contends that even if Plaintiff is deemed a business invitee when he arrived on the property, his status changed to that of a licensee when he began exercising his police powers. We find this argument meritless.
The Missouri Supreme Court has defined an "invitee" as "a person who is invited to enter and remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land." Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo.banc 1993). Moreover, the Supreme Court further stated:
A person is an invitee if the premises are thrown open to the public and the person enters pursuant to the purposes for which they were thrown open . . . an entrant becomes an invitee when the possessor invites with the specific expectation of a material benefit from the visit or extends an invitation to the public generally. Carter v. Kinney, 896 S.W.2d 926 (Mo.banc 1995).
Plaintiff clearly falls within the definition of an invitee. Defendant placed public telephones on its premises for the convenience of its customers and the general public, and received revenue from the use of such phones. In fact, evidence was presented that Defendant received 20 percent of all monies collected by Southwestern Bell Telephone from the use of the public pay phone. As such, Plaintiff was invited onto Defendant's premises for a purpose connected with its business dealings, the use of the pay phone.
We also disagree with Defendant's argument that Plaintiff's status changed from invitee to licensee when Plaintiff began exercising his police powers, identified himself as a police officer and discharged his firearm. Although Defendant correctly states that a deviation from the scope of an invitation will reduce an entrant's status and consequently the possessor's duty to the entrant, Walters v. Markwardt, 237 S.W.2d 177 (Mo. 1951), it can point us to no case law supporting its position that an officer's status shifts to that of licensee when he suddenly identifies himself as a police officer. As such, we conclude that Plaintiff remained an invitee at all times relevant to this lawsuit.
2. Prior Violent Crimes
In order to state his cause of action under the special facts and circumstances exception, Plaintiff is also required to produce evidence of prior specific incidents of violent crimes on Defendant's premises that are sufficiently numerous and recent to put Defendant on notice that its invitee is in danger. Brown, 973 S.W.2d at 533. In other words, Plaintiff must establish that the incident causing injury was sufficiently similar to the prior crimes on Defendant's property, making it foreseeable that particular acts or omissions are likely to cause harm or injury.Id. According to Defendant, Plaintiff failed to establish similar violent crimes necessary to prove Defendant had a duty to protect Plaintiff from a criminal attack by an unknown third person.
Plaintiff, however, contends that Defendant's objection to the admission of police reports is not properly preserved for appellate review in that Defendant objected in its Motion for New Trial to only four of the twelve police reports admitted into evidence at trial, specifically reports dated February 22, 1993, April 8, 1993, August 13, 1993, and March 14, 1994. We agree with Plaintiff and find the objection preserved only with respect to the four police reports because Defendant failed to include in its Motion for New Trial any allegations of error with respect to the remaining eight police reports. Therefore, we must review whether the trial court erred in admitting the four police reports set forth above, and whether all the admitted police reports were sufficient for Plaintiff to make a submissible case under the special facts and circumstances theory of liability.
Analysis of the four police reports that Defendant objected to indicates that two of the four incidents were sufficiently similar to the present situation and constituted violent crimes, with the exceptions of the stealing of ten dollars which occurred on August 13, 1993, and the stealing of property from a van parked in the parking lot on March 14, 1994. These reports in question involve two incidents of assault, one against a uniformed police officer. Moreover, the eight incidents of violence not objected to by Defendant include six armed robberies, and two attempted armed robberies. These ten incidents are sufficient to establish a duty on the part of Defendant to keep Plaintiff and other invitees reasonably safe from criminal activity by an unknown third party assailant. See Madden, 758 S.W.2d 59 (14 incidents of criminal activity on Defendant's premises during the previous three years was sufficient to establish Defendant's duty); Decker v. Gramex Corp., 758 S.W.2d 59, 63 (Mo.banc 1988) (15 incidents of violent crime during previous three year period sufficient to establish duty). Point denied.
C. Submission of a Comparative Fault Jury Instruction
Defendant's tendered comparative fault instruction stated as follows:
In your verdict you must assess a percentage of fault to plaintiff whether or not defendant was partly at fault if you believe:
First, on August 20, 1994, upon his arrival at 1401 East Grand, plaintiff knew of and appreciated the dangers of encountering criminal activity, and
Second, voluntarily and unreasonably exposed himself to such danger, and
Third, such conduct of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.
Defendant avers that the trial court erred in refusing to submit jury instruction F because Plaintiff was partly at fault for his own injuries in that it was his duty to take reasonable precautions to protect himself from violent crimes, and because his injuries were foreseeable based upon his experience as a police dispatcher and officer. We disagree.
Absent a contrary agreement, parties in a negligence action have the right to submit their case to the jury under comparative fault principles if evidence exists from which a jury could find that the plaintiff's conduct was a contributing cause of her damages. Peters v. Brenner, 772 S.W.2d 777, 778 (Mo.App.E.D. 1989). However, the instruction must be supported by substantial evidence, not mere speculation or conjecture. Id. In determining whether the instruction is supported by substantial evidence, we view the evidence and inferences in the light most favorable to the submission of the instruction and disregard all contrary evidence and inferences. Morgan v. Toomey, 719 S.W.2d 129, 131 (Mo.App.E.D. 1986). Moreover, the issue of whether the trial court properly instructed the jury is a question of law to be determined upon the record. Kuzuf v. Gebhardt, 602 S.W.2d 446, 449 (Mo.banc 1980); Luyties Pharmacal Co. v. Frederic Co., Inc., 716 S.W.2d 831, 834 (Mo.App.E.D. 1986).
We have discovered no case attempting to hold a crime victim comparatively at fault for injuries suffered as a result of a third party's intentional acts under the special facts and circumstances theory of premises liability. Assuming without deciding that a victim could be held comparatively at fault, we nonetheless find that the trial court properly refused to submit Defendant's proffered comparative fault instruction to the jury in that the instruction's first prong requires the jury to consider whether Plaintiff "knew of and appreciated the dangers of encountering criminal activity on Defendant's premises." We believe that this standard incorrectly instructs the jury regarding the required knowledge Plaintiff must possess in order to be held comparatively at fault for the injuries he suffered at the hands of the third party assailant. To require that Plaintiff produce evidence of "prior specific incidents of violent crimes that are sufficiently numerous and recent to put Defendant on notice that its invitee is in danger," yet impute knowledge to Plaintiff based solely upon evidence that he "knew of and appreciated the dangers of encountering criminal activity on Defendant's premises," holds Plaintiff to a higher standard than Defendant. In other words, Plaintiff would be held comparatively at fault by simply knowing that criminal activity occurred on Defendant's premises, where Defendant would not be liable absent knowledge of a sufficient number of specific incidents of recent violent crimes. We find such a differing standard unfair. Because the proffered instruction failed to submit the appropriate theory to the jury, the trial court did not error in refusing to tender the instruction. Point denied.
D. Admission of Statements Contained in Police Reports
In its fourth point on appeal, Defendant argues that the trial court abused its discretion in allowing Plaintiff to read into evidence victim and witness summary statements taken by police officers and memorialized in twelve police reports, detailing violent criminal acts which occurred on Defendant's property prior to the incident involving Plaintiff. Defendant alleges that such statements were prejudicial and adversely affected the jury's ability to reach a fair and impartial verdict. Despite Plaintiff's objection, we find this issue preserved for our review. We thus turn to the merits of Defendant's argument.
It is well established that the trial court has substantial discretion in ruling on the admissibility of evidence, and its ruling will not be disturbed absent an abuse of discretion.Brown v. Hamid, 856 S.W.2d 51, 56 (Mo.banc 1993). Abuse of judicial discretion occurs when the trial court's ruling was clearly against the logic of the circumstances and is so arbitrary and unreasonable that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration. Shoemaker v. Ekunno, 960 S.W.2d 527, 530 (Mo.App.E.D. 1998). "If reasonable minds can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Bowman, 916 S.W.2d at 276.
The trial court did not abuse its discretion by allowing Plaintiff to read to the jury the summaries contained within the police reports. The police reports were admitted pursuant to the Uniform Business Records as Evidence Act, and therefore did not violate the hearsay rule. Section 490.680 RSMo (1994). Moreover, the witness and victim summaries contained within such properly admitted police reports were non-hearsay and admissible, given that such reports were not offered for the truth of the matter asserted. See Keesee v. Freeman, 772 S.W.2d 663 (Mo.App.W.D. 1989); Vaughn v. Ems, 744 S.W.2d 542 (Mo.App.E.D. 1988). Instead, the summaries were merely presented to establish Defendant's knowledge of the alleged danger that a business invitee might be attacked on its premises. As such, the trial court did not abuse its discretion by allowing non-hearsay statements contained within the reports to be read to the jury. Point denied.
E. Opinion Testimony of Sergeant Donald Cummings
Defendant's fifth point of appeal alleges error from the following testimony provided by Plaintiff's witness Sergeant Donald Cummings:
Q (Plaintiff's attorney): All right. After one of those incidents, did you engage in a conversation during that period of time with any employees of Sinclair.
A: Yes.
Q: And did you tell them anything specifically?
A: Other than over time we would ask if they seen anything, which the majority of the time they did not. One particular time it was a black male who I assumed was manager assistant, station manager, I strongly suggested to him they should consider some kind of security guard to be hired as visible presence of some law enforcement at the station there on the grounds; that it may hopefully deter from some of these things occurring.
Mr. Younger (Defendant's attorney): I am going to object to the testimony of the witness partially as nonresponsive, but the other part as opinion testimony with lack of the appropriate foundation, also a complete surprise to this defendant, and that no expert witness has been identified in this case. I ask that it be stricken and ask the jury to be instructed to disregard.
The court: I'll overrule.
According to Defendant, the trial court erred in failing to strike the opinion testimony of Sergeant Cummings as he was never identified as an expert witness by Plaintiff and his opinion testimony was prejudicial and surprising to Defendant. However, we agree with Plaintiff's contention that Sergeant Cummings was not an expert witness, and his testimony was offered to prove Defendant had actual or constructive knowledge of the dangerous condition on its premises.
The normal use of the term expert witness applies to a witness retained by a party in anticipation of litigation to testify about scientific or technical matters. Krug v. United Disposal, Inc., 567 S.W.2d 133, 135 (Mo.App.E.D. 1978). However, observers and participants in the events and transactions of a case are not expert witnesses. "If some of [the testimony of an observer or participant] incidentally called upon their learning and experience for conclusions and opinions, and could in that sense be called `expert testimony,' that does not make them `expert witnesses' within the meaning of Rule 56.01(b)(4)." Ginnever v. Scroggins, 867 S.W.2d 597, 599 (Mo.App.E.D. 1993), citing Owen v. City of Springfield, 741 S.W.2d 16, 20 (Mo.banc 1987).
The trial court has broad discretion regarding rulings on issues arising from pre-trial discovery and the determination of the appropriate course of action in the event of non-compliance with a discovery rule; the Court of Appeals looks only for an abuse of this broad discretion which results in prejudice or unfair surprise. Hurlock v. Parklane Medical Center, Inc., 709 S.W.2d 872, 878-879 (Mo.App.W.D. 1985). The objected-to testimony of Sergeant Cummings was that the station should consider hiring a security guard, which may deter some crimes from occurring on the premises. He was not an expert witness in the sense that he was retained by Plaintiff in anticipation of litigation; nor did he testify to scientific or technical matters. To the contrary, Sergeant Cummings actually participated in the supervision of the investigation of several of the violent crimes that occurred on the Defendant's premises during the twenty-four month period prior to crime against Plaintiff. Moreover, his testimony was offered to establish knowledge of the dangerous condition. Furthermore, Defendant was not unfairly surprised by such testimony. Therefore, the trial court acted within its discretion in allowing Sergeant Cummings' testimony. Point denied.
F. Instructional Errors
Defendant next alleges that the trial court erred in denying Defendant's Motion for New Trial as to liability and compensatory damages in that Defendant was prejudiced by several instructional errors. We disagree.
Defendant first contends that Instruction No. 9 failed to require the jury to find that a danger existed on Defendant's premises over and above the everyday danger that Plaintiff might suffer a criminal attack by an unknown third person, and it allowed the jury a roving commission as to the terms "danger" and "reasonably safe" as such terms were used in the instructions.
Rule 70.03, which addresses objections to instructions, states that "[c]ounsel shall make specific objections to instructions considered erroneous. No party may assign as error the giving or failure to give instructions unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Defendant's counsel failed to make a specific objection at trial to the use of the phrase "reasonable care" in Instruction No. 9, and instead objected on different grounds. Where an alleged error relating to an instruction differs from the objections made to the trial court, the error may not be reviewed on appeal. Wilson v. Kaufmann, 847 S.W.2d 840, 846-847 (Mo.App.E.D. 1993).
Defendant, however, did object during the instruction conference to the term "danger" being used as an inappropriate roving commission, and further argued that the court either needed to define the danger, use another term, or "make it so that it is excessively dangerous outside of the ordinary premises in this particular area or something to that effect." (Tr. 284). However, Defendant did not request or offer an instruction defining the term "danger." Where a party contends that a term in an instruction needs a definition, it is that party's duty to request and offer an instruction containing a definition of that term. Seidel v. Gordon Real Estate Co., Inc., 904 S.W.2d 357 (Mo.App.E.D. 1995), citing Walsh v. St. Louis Nat'l Baseball Club, Inc., 822 S.W.2d 559, 563 (Mo.App.E.D. 1992). Absent such a request and offer, that party cannot challenge the trial court's failure to define the term on appeal. Id.
Defendant next asserts that there was no evidence presented at trial supporting the submission of Instruction No. 6, which allowed the jury to award Plaintiff future damages.
Submission of a jury instruction will be upheld if supported by substantial evidence; "substantial evidence" is evidence which, if true, is probative of the issues and from which the jury can reasonably decide the case. Hawkes v. Norfolk Western Ry. Co., 876 S.W.2d 705, 707 (Mo.App.E.D. 1994). In reviewing the submission of an instruction, we view the evidence and all inferences therefrom in the light most favorable to submitting the instruction and disregard all contrary evidence that does not support the instruction. Wright v. Fox-Stanley Photo Products, Inc., 639 S.W.2d 407, 408 (Mo.App.E.D. 1982); Yust v. Link, 569 S.W.2d 236, 240 (Mo.App.E.D. 1978). Viewed in this light, there is substantial evidence to support the instruction on future damages.
A long continuance of conditions existing at trial is sufficient to warrant giving an instruction on damages for future pain and suffering. Chaussard v. Kansas City Southern R. Co., 536 S.W.2d 822, 828-829 (Mo.App.W.D. 1976); see MAI 4.01. Here, Plaintiff was shot in both the arm and abdomen almost 3 1/2 years prior to his case going to trial. Yet at trial, Plaintiff testified that a bullet remained lodged in his left arm, which stiffens up and gets tight. Plaintiff also complained that he continued to suffer from stomach cramps and incontinence, which requires him to leave his post at work. Such a long continuance of conditions, still existing 41 months after the incident, is sufficient to warrant giving an instruction on damages for future pain and suffering. See Chaussard, 536 S.W.2d 822.
Defendant finally argues that the verdict form improperly contained language indicating it was "Submitted by Plaintiff" and "given" by the judge, which prejudiced Defendant in that it placed information before the jury during deliberation which was neither law nor evidence. We disagree.
Defendant concedes that it did not claim error with respect to the verdict form at trial, or in its Motion for New Trial or its Motion for Judgment Notwithstanding the Verdict. As such, Defendant's allegation of error is only entitled to plain error review, and we find no manifest injustice to have occurred. See Rule 84.13. Defendant merely contends that the jury could have taken the inclusion of authority and identification of the proponent to be an indication of the court's position on the ultimate issues in the lawsuit, and we find no basis to conclude that any juror was confused solely because the verdict form given to the jury disclosed that it was submitted by Plaintiff and given by the judge. Therefore, the nature of the prejudice is purely speculative, unclear and uncertain. We find the mistake was not inherently prejudicial and not a matter of plain error. See Moll v. General Automatic Transfer Co., 873 S.W.2d 900, 905 (Mo.App.E.D. 1994). Point denied.
G. Constitutionality of Extending a Duty to Defendant
Finally, Defendant contends that extending to it a duty to protect Plaintiff from a criminal act by an unknown, third party gunman is unconstitutional for the following reasons: (1) it is an impermissible delegation of police power to private persons in violation of the Missouri Constitution, Article II, Section I and the United States Constitution; (2) the imposition of such duty is "overly burdensome and subject to prejudicial application and enforcement"; and (3) the duty "is vague in that it is not subject to clear definition of what conduct of Defendant is required or prohibited" and therefore, constitutes a violation of public policy.
In order to properly preserve a constitutional question for appellate review, it must be raised at the first available opportunity before the trial court. St. Louis County v. Kienzle 844 S.W.2d 118, 122 (Mo.App.E.D. 1992). Here, Defendant claimed in its Answer to Plaintiff's First Amended Petition that imposing a duty on Defendant to protect Plaintiff violates Article II, section I of the Missouri Constitution, which prohibits the delegation of police powers to private persons. As this issue was raised at the first available opportunity, it is preserved for our review.
Although Defendant alleges that the imposition of a duty violates Article II, section I, which addresses the three departments of government and the separation of powers, we will assume that Defendant made a typographical error, transposing the numbers of the article and section. We believe that Defendant meant to argue that the duty violates Article I, section II, which deals with the promotion of general welfare, natural rights of persons, equality under the law, and the purpose of the government, the section now cited on appeal.
Defendant complains there has been an unlawful delegation of police powers to private persons by virtue of this tort. Defendant argues that, in effect, the tort requires that it provide security and thus allows the government to impermissibly shift its duty to protect its citizenry to Defendant. The argument is meritless. The phrase "police power" is a legal term of art referring to "the inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality and justice." BLACK'S LAW DICTIONARY 1178 (7th ed. 1999). Defendant apparently misconstrues the phrase as referring to the government's authority to provide law enforcement services. The existence of this tort delegates no police power. The tort, rather, imposes liability on a landowner who fails to protect invitees. Madden, 758 S.W.2d 59. Further, even when the government affirmatively requires the provision of security by private parties it is a reasonable exercise of the government's police powers. Flower Valley Shopping Center, Inc. v. St. Louis County, 528 S.W.2d 749 (Mo. 1975).
Defendant's remaining constitutional challenges were not raised at the first available opportunity, and therefore are not properly preserved for appellate review. Defendant alleges for the first time in its Motion JNOV that the delegation of police power to private persons violates the United States Constitution. Defendant alleges for the first time in its appellate brief that the duty is vague, overly burdensome and subject to prejudicial application and enforcement. These claims are not preserved for our review. See Kienzle, 844 S.W.2d at 122.
H. Punitive Damages
In its cross-appeal, Plaintiff contends that the trial court erred and abused its discretion in granting Defendant's Motion for Directed Verdict on the issue of punitive damages and in refusing to submit Plaintiff's Instruction "A" to the jury, in that there was clear and convincing evidence of Defendant's complete indifference to or conscious disregard for the safety of its invitees necessary to make a submissible case on punitive damages.
In reviewing a directed verdict granted for defendant, an appellate court reviews the evidence and permissible inferences most favorably to the plaintiff, disregards contrary evidence and inferences and determines whether plaintiff has made a submissible case. Schumacher v. Barker, 948 S.W.2d 166, 168 (Mo.App.E.D. 1997), citing Head v. National Super Markets, 902 S.W.2d 305, 306 (Mo.App.E.D. 1995). Directing a verdict is a drastic measure. Id. A presumption, therefore, is made in favor of reversing the trial court's judgment sustaining a motion for directed verdict unless the facts and inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as a result. Id. The plaintiff may prove essential facts by circumstantial evidence as long as the facts proved and the conclusions to be drawn are of such a nature and are so related to each other that the conclusions may be fairly inferred. Id.; see also Englezos and Aesop, Inc. v. The Newpress and Gazette Co., 980 S.W.2d 25 (Mo.App.W.D. 1998).
In a negligence case, punitive damages may be awarded if the conduct of the defendant showed complete indifference to or a conscious disregard for the safety of others. Stojkovic v. Weller, 802 S.W.2d 152, 155 (Mo.banc 1991). Punitive damages are imposed to punish the wrongdoer and deter others from similar conduct. Arie v. Intertherm, Inc., 648 S.W.2d 142, 159 (Mo.App.E.D. 1983), citing State ex. rel Smith v. Greene, 494 S.W.2d 55, 60(6) (Mo.banc 1973). In all cases going to trial after February 1, 1997, a submission of punitive damages in a common law negligence case must be supported by clear and convincing evidence. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996). "The clear and convincing evidence standard refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder's mind is left with an abiding conviction that the evidence is true." In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo.App. S.D. 1995).
Viewed in this light, the evidence presented demonstrated that criminal activity occurred on Defendant's property "everyday to every other day." According to Mr. Williams, the station manager of 17 years, he was so frightened and concerned for his safety that he told his wife he would probably die at the station. In fact, Mr. Williams was robbed at gunpoint on two or three occasions between August 1992 and August 1994. Moreover, during the two-year period between August 20, 1992, and August 19, 1994, the St. Louis Police Department accumulated twelve police reports, ten of which document the occurrence of violent crimes on Appellant's property. The violent crimes included six armed robberies; two attempted armed robberies; and two incidents of assault, one against a police officer.
Based upon the large number of police reports filed regarding criminal activity occurring on Defendant's premises, two St. Louis City police officers informed Defendant that its premises were dangerous and suggested ways to make the premises reasonably safe for invitees. Sergeant Donald Cummings, whose name appears in the police reports documenting the crimes that occurred on November 25, 1992, and February 2, 1993, testified at trial that he suggested to the station manager that a security guard be hired to "hopefully deter from some of these things occurring." Officer Tillman also testified that he asked the manager to remove the pay telephones "because that was part of the problem there."
Mr. Williams became so scared for the safety of his customers that he requested Defendant provide a security guard on the premises. Mr. Williams testified to the following conversation regarding security:
Q: [by Plaintiff's attorney]: You asked Sinclair Oil Corporation to provide you with a security guard, didn't?
A: [Mr. Williams]: Yes.
Q: Did you get it?
A: No.
Q: Never had a security guard down there, have you?
A: No.
Q: And you asked Sinclair Oil Corporation if they could afford that eight to ten bucks an hour for a security guard, didn't you? Isn't that what you were asking?
A: Yes, I did.
Q: And the answer was a resounding no?
A: I didn't get an answer.
Q: You didn't get an answer, and you didn't get a security guard either, did you?
A: That's right, yeah.
Q: And you asked that for the protection of those customers; isn't that right?
A: Yes, I did.
Q: For those people that were coming on to Sinclair property and spending their money, isn't that right?
A: Yes.
However, Mr. Jerry Evenson, Defendant's general manager of retail marketing at the time of the present incident, testified that neither he nor the company ever considered outside security for the East Grand station.
Mr. Williams further testified that he also had the following conversation with Mr. Hea, the district manager for Defendant, regarding removal of the pay telephones from the premises:
Q: [by Plaintiff's attorney]: Okay. You also expressed concerns about the pay phone, didn't you?
A: Yes.
Q: And you told Sinclair that because of all the criminal activity occurring by those pay phones, you wanted them removed?
A: Yes.
Q: Isn't that right?
A: Yes . . .
Q: You told that to John Hea?
A: Yes.
Q: He is the district manager for Sinclair Oil Corporation, right?
A: Yes.
Q: He is the big boss, he is the big manager, right?
A: Of St. Louis . . .
Q: What did John tell you?
A: He told me he was getting too much revenue off the pay phones to have them taken out.
Q: Too much money he was making off the pay phones to have them taken out?
A: Right, yes.
Despite Defendant's unwillingness to expend the money necessary to either hire a security guard or remove the pay telephones, for fear that its revenue would decrease, it nevertheless elected to incur the additional costs necessary to remove graffiti in order to disguise the true risks incurred by patrons when entering the premises.
Defendant also instituted several safety measures designed to protect its employees and building from the large amount of crime committed on the premises. First, during late 1989 and early 1990, in an effort to provide a safe and secure environment for its cash and sundry items, Defendant adopted the policy of keeping its premises open twenty-four hours a day. Keeping the premises constantly open afforded Defendant increased revenue from customers and decreased risk of vandalism and break-ins. Second, Defendant also placed its employees behind a locked door and encircled its attendants in a bulletproof glass cashier's cage, which they were instructed to remain behind at all times.
Here, the record reveals numerous incidents of violent crime on its premises, suggestions by police officers that security was needed, a willingness by the Defendant to protect its building, sundries and employees, coupled with its unwillingness to institute inexpensive safety procedures designed to protect its patrons.
In Jardel Co., Inc. v. Hughes, cited by the dissent, the Supreme Court of Delaware held that punitive damages may be submitted for failure to protect business invitees from the criminal acts of unknown third parties. 523 A.2d 518 (Del. 1987). Normally, the court held, the question of punitive damages is for the trier of fact. Id., at 527. However, because of the failure of plaintiff's proof of similar instances of violent criminal conduct, the court reversed an award of punitive damages.
The Delaware court claims a complete absence of any deterrent basis for the imposition of punitive damages as to this tort. The court opines that "[w]hile mercantile landowners should be encouraged to provide safe premises for their customers and employees, they should not be punished for mere inadequacy as a lesson to other landlords." We disagree. Missouri expressly acknowledges the purpose of punitive damages as twofold: to punish the wrongdoer and deter others from similar conduct. Bell v. May Dept. Stores Co., 1999 WL 152575, *11 (Mo.App.E.D. 1999). Moreover, MAI 10.02, the punitive damages instruction for negligence constituting conscious disregard for others, states in pertinent part that "you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter defendant and others from like conduct." (emphasis added). We know of no reason why normal principles of deterrence would not operate here to restrain tortious behavior by landowners.
In our case, there was no failure of proof.
Missouri has adopted no special test for the imposition of punitive damages as to this tort. Rather, under Missouri law, given our standard of review, Schumacher, 948 S.W.2d 166, and the burden of proof, Rodriguez, 936 S.W.2d 104, the question is whether plaintiff's evidence meets the test for imposition of punitive damages. Stojkovic, 802 S.W.2d 152. Reviewing the evidence and the permissible inferences most favorably to plaintiff and disregarding contrary evidence and inferences, did plaintiff demonstrate by clear and convincing evidence that defendant showed either complete indifference to or a conscious disregard for the safety of others? Under Missouri law, there is a presumption in favor of reversing a trial court's judgment sustaining a motion for directed verdict, unless the facts and inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Schumacher, 948 S.W.2d at 168. Under the facts of our case, reasonable minds could and, in fact, do differ as to whether the record demonstrates clear and convincing evidence of Defendant's complete indifference to or conscious disregard for the safety of its customers. As such, the trial court erred in granting Defendant's Motion for Directed Verdict on this issue. Therefore, we reverse and remand for proceedings consistent with this opinion.
III. Conclusion
We hold that the trial court did not err in denying Defendant's Motion for Directed Verdict and/or Motion JNOV in that Plaintiff's claim is not barred by the "fireman's rule"; Plaintiff proved the existence of special facts and circumstances necessary to establish Defendant's duty to protect Plaintiff from a third-party criminal attack; and the trial court did not commit instructional error with respect to instructions number 6 or 9 or the verdict director. Moreover, we find that Defendant's constitutional challenges are either without merit or unpreserved. In addition, we find that the trial court did not err by refusing to submit the comparative fault jury instruction tendered by Defendant, nor did it err by allowing Plaintiff to read into evidence statements contained within police reports. We also hold that the trial court's failure to strike Sergeant Donald Cummings' opinion testimony did not constitute error. Finally, we conclude that the trial court erred in failing to submit the issue of punitive damages to the jury.
We affirm in part, and reverse and remand in part.
PAUL J. SIMON, CJ, concurs and KATHIANNE KNAUP CRANE, J., dissents in a separate opinion.
DISSENT
I respectfully dissent only from the reversal on the issue of punitive damages. The parties have not cited to us any Missouri case in which punitive damages have been awarded for failure to protect business invitees from the criminal acts of unknown third parties on the premises in a case in which the landowner's liability arose under the "special facts and circumstances" exception. The Delaware Supreme Court has extensively analyzed the issue of punitive damages in this context in Jardel Co., Inc. v. Hughes, 523 A.2d 518, 527-31 (Del. 1987). I would hold that the trial court did not err when it found that the evidence argued to support a punitive damage instruction was not clear and convincing on the claim that defendant showed complete indifference to or conscious disregard for the rights of others.
I would affirm the judgment in all respects.