BEVERLY A. LISZEWSKI LISA A. LISZEWSKI, — v. TARGET CORPORATION, —

374 F.3d 597, 2004 U.S. App. LEXIS 13722, 2004 WL 1487124
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 2, 2004
Docket03-2795
StatusPublished
Cited by2 cases

This text of 374 F.3d 597 (BEVERLY A. LISZEWSKI LISA A. LISZEWSKI, — v. TARGET CORPORATION, —) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BEVERLY A. LISZEWSKI LISA A. LISZEWSKI, — v. TARGET CORPORATION, —, 374 F.3d 597, 2004 U.S. App. LEXIS 13722, 2004 WL 1487124 (8th Cir. 2004).

Opinions

MELLOY, Circuit Judge.

We affirm the district court’s 1 grant of summary judgment in favor of Defendant-Appellee Target Corporation (“Target”) in this negligence action under Missouri law.

I.

Attackers assaulted and robbed Plaintiffs-Appellants Beverly A. Liszewski and Lisa A. Liszewski in the parking lot of a St. Louis-area Target store on January 3, 2000. The attack occurred near the store’s closing time. Initially, one attacker attempted to steal Lisa Liszewski’s purse. The store manager witnessed the attack and attempted to help. The store manager caught and pinned down the attacker, but a group of accomplices exited a car, beat the store manager, briefly abducted and assaulted Beverly Liszewski, threatened her with a piece of broken glass, and released her. The attackers knocked Lisa Liszewski down as they fled. A security guard, who was near the front door, claimed that he did npt see the attack.

The Liszewskis brought this action in state court, and Target removed to the United States District Court for the Eastern District of Missouri. The Liszewskis alleged that Target failed to adequately protect them from, attack by unknown third persons while on Target’s property as business invitees. The Liszewskis set forth numerous prior crimes and reports of crimes that occurred at or near the same store and argued that these prior crimes made the present attack reasonably foreseeable. The Liszewskis argued that this foreseeability placed a duty on Target to protect its invitees at that particular store from. criminal attack by unknown third persons. The Liszewskis also argued that because Target had a security guard on duty and other security measures in place, Target had assumed the duty to protect its invitees from unknown third persons.

The district court granted summary judgment against the Liszewskis, finding [599]*599that the prior criminal acts at the Target store were insufficient to place a reasonable business owner on notice that it was necessary to protect invitees from attack by unknown third persons. In addition, the district court held that the provision of security guards and parking lot cameras did not amount to an assumption of a duty to protect invitees.

II.

We review the district court’s grant of summary judgment de novo. L.A.C. v. Ward Parkway Shopping Ctr. Co., 75 S.W.3d 247, 256 (Mo.2002) (en banc). Here, we must determine whether Target had a duty to protect its invitees from attack by unknown third persons. Although we must view the facts in a light most favorable to the Liszewskis and draw all reasonable inferences in their favor, the underlying question of “ ‘[wjhether a duty exists is purely a question of law.’ ” Id. at 257 (quoting Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151, 155 (Mo.2000) (en banc)).

Under Missouri law, there is no special formulation of a test to assess the duty of a business towards its invitees. Id. at 256 (identifying but refusing to adopt various tests such as the “specific harm test,” the “prior similar incidents” test, and the “totality of the circumstances test”). Rather, the Missouri Supreme Court has stated that the traditional tort principles of duty, breach, and causation are sufficiently flexible to address such liability under the circumstances of any given case. Id. at 257. Under Missouri’s general negligence test, then, a business does not owe its invitees a duty to guard against the criminal acts of unknown third persons in the absence of special circumstances that would make such acts foreseeable. . See id. (stating that the court “merely followed traditional principles of the law of negligence” and finding that “a duty to exercise care [to protect business invitees] may be imposed by common law under the facts and circumstances of a given case”) (citation an internal quotation omitted) (alteration in original); Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo.1988) (en banc) (stating that “[t]he touchstone for the creation of a duty is foreseeability,” and “[a] duty [to protect invitees from the criminal acts of unknown third parties] arises out of circumstances in which there is a reasonably foreseeable likelihood that particular acts or omissions- will cause harm or injury”).

Reasonable foreseeability does not require the identical crime to occur before a duty arises. See L.A.C., 75 S.W.3d at 259 (“Foreseeability does not require identical crimes' in identical locations.”). Rather, an offense is reasonably foreseeable and a duty arises under circumstances where prior reports of criminal activity or other similar acts on or near the site are sufficient in number, sufficiently similar to, and sufficiently close in time to the immediate offense to place a business on notice of the need to protect its invitees from that general type of risk. See Brown v. Schnuck Mkts., Inc., 973 S.W.2d 530, 533 (Mo.Ct.App.1998) (searching for “prior specific incidents of violent crimes on the premises that, are sufficiently numerous and recent to put a defendant on notice ... and sufficiently similar in -type ... that a reasonable person would take precautions against that type of activity”); Smith v. Archbishop of St. Louis, 632 S.W.2d 516, 521 (Mo.Ct.App.1982) (“[P]laintiff need not show that the very injury resulting from defendant’s negligence was foreseeable, but merely that .a reasonable person could have foreseen that injuries of the type suffered would be likely to occur under the circumstances.”).

[600]*600In the present case, the district court reviewed the prior criminal activities that the Liszewskis identified and rejected most as dissimilar to the present, violent robbery. The district court stated that numerous reported incidents of shoplifting were nonviolent crimes by third parties against Target rather than violent crimes by unknown third parties against invitees. The district court also rejected as dissimilar various prior crimes that did not involve unknown third parties (e.g., assaults by acquaintances and an altercation between a Target employee and an invitee) or that were crimes against property rather than crimes that involved the presence of a victim (e.g., the theft of a patron’s bicycle when he was inside the store and the theft of cars without reports of personal confrontations). Finally, the district court discounted two crimes that occurred nearby, but on the premises of other businesses: a 1997 purse snatching from a shopping cart in the parking lot of a nearby grocery store that involved no physical harm to the victim; and the armed robbery of an ATM patron at a bank across the street from Target by acquaintances of the victim who had driven the victim to the bank.

The district court concluded that only two prior incidents were sufficiently similar to the present case to arguably provide notice: a January 1996 robbery and a March 1996 attempted robbery in the same parking lot. These incidents, however, were four years old at the time of the present attack and easily distinguishable.

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374 F.3d 597, 2004 U.S. App. LEXIS 13722, 2004 WL 1487124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beverly-a-liszewski-lisa-a-liszewski-v-target-corporation-ca8-2004.