Debbie M. Earley v. Mary V. Dunn

• Court: Missouri Court of Appeals
• Decided: March 21, 2023
• Docket: ED110514
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE

DEBBIE M. EARLEY, ) No. ED110514 ) Appellant, ) Appeal from the Circuit Court ) of Jefferson County v. ) Cause No. 18JE-CC00453 ) MARY V. DUNN, ) Honorable Victor J. Melenbrink ) Respondent. ) Filed: March 21, 2023

I. Introduction

This appeal concerns the question of whether an employer owes a duty to protect its

employees from the criminal acts of third parties solely by nature of the employer-employee

relationship. Debbie Earley was sexually assaulted by Mary Dunn’s grandson while working as an

in-home caregiver in Dunn’s home. Earley sued Dunn for negligence, arguing that Dunn, as

Earley’s employer, had a duty to protect her from the assault. The circuit court granted summary

judgment in favor of Dunn, ruling that Dunn had no such duty.

Though several Missouri opinions have stated that an employer-employee relationship can

“sometimes” give rise to a duty to protect employees from the criminal actions of a third party, the

opinions provide no guidance on when the duty arises. 1 Moreover, and perhaps more importantly,

1 There is relatively little authority in this area. This is likely a result of the exclusive remedy provided by Missouri’s Workers’ Compensation Law. In the vast majority of cases, an employee’s claims against an employer for an on-the-

1 none of the opinions conducted any analysis of whether the employer-employee relationship is the

type of special relationship that gives rise to a duty to protect someone from the criminal acts of a

third party. Earley has not identified a single case from this jurisdiction, or any other, in which an

employer was actually held to have a duty to protect its employees from the type of unforeseeable

injury that occurred in this case.

Because we find that the circumstances of this case did not give rise to a duty to protect

Earley from third-party criminal acts, we affirm the circuit court’s judgment.

II. Factual and Procedural Background

In 2008, Dunn suffered a stroke that left her unable to care for herself. Dunn’s daughter,

Irene Laiben, sought to hire someone to provide her mother with in-home care. In this capacity,

Laiben hired Earley to care for Dunn. Laiben handled most of the administrative work associated

with Dunn’s employment, including creating a schedule and distributing paychecks. All payments

came from Dunn’s accounts. Earley’s duties included managing Dunn’s medications, taking her

to appointments, and assisting her with bathing and dressing. As part of her responsibilities, Earley

cared for Dunn overnight and slept in Dunn’s home.

One evening, while sleeping in Dunn’s home, Earley awoke to Dunn’s grandson, Tyler

Young, knocking on the front door. Young was intoxicated, but Earley allowed him inside,

believing she had no ability to refuse. After Earley returned to her room, Young entered and

sexually assaulted her. Dunn was asleep at the time and unaware of Young’s presence. Earley sued

Dunn for negligence, alleging that Dunn violated her duty to protect Earley from Young’s criminal

acts. Earley argued that Dunn was her employer and their relationship gave rise to Dunn’s duty.

job injury are handled via the workers’ compensation system, which serves as the exclusive remedy. Because this case falls within the exceedingly narrow circumstances in which workers’ compensation insurance was neither required nor purchased, the Workers’ Compensation Law does not apply.

2 The circuit court entered summary judgment for Dunn. Specifically, the circuit court found that

Dunn had no duty to protect Earley from criminal acts of third parties and stated that not every

employer-employee relationship is a “special relationship.” This appeal follows.

III. Standard of Review

This Court reviews the grant of summary judgment de novo. ITT Commercial Finance

Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993).

Summary judgment is appropriate if the moving party establishes that there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6)

(2021). We review the record in the light most favorable to the party against whom judgment is

sought. State ex rel. Missouri Highway & Trans. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc

1998).

A defendant may establish a right to summary judgment by demonstrating (1) facts

negating any one of the elements of the plaintiff’s claim; (2) that the plaintiff, after an adequate

period for discovery, has not been able and will not be able to produce sufficient evidence to allow

the trier of fact to find the existence of any one of the elements of the plaintiff’s claim; or (3) that

there is no genuine dispute as to the existence of the facts necessary to support the defendant’s

properly pleaded affirmative defense. Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo.

banc 2011).

IV. Discussion

As part of an action for negligence, a plaintiff must establish that the defendant owed the

plaintiff a duty of care. Wieland v. Owner-Operator Services, Inc., 540 S.W.3d 845, 848 (Mo. banc

2018). Whether a duty exists is purely a question of law. Aaron v. Havens, 758 S.W.2d 446, 447

(Mo. banc 1988). “The touchstone for the creation of a duty is foreseeability.” Wieland, 540

3 S.W.3d at 848 (quoting L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center Company, L.P., 75

S.W.3d 247, 257 (Mo. banc 2002)). For this reason, the general rule is that there is no duty to

protect against the criminal acts of third parties because such events are rarely foreseeable. Id.

An exception to this general rule arises when either a “special relationship” or “special

facts and circumstances” exist, such that “an act or omission exposes someone to an unreasonable

risk of harm through the conduct of another.” Keenan v. Miriam Foundation, 784 S.W.2d 298, 302

(Mo. App. E.D. 1990). This case involves only the question of a special relationship. Special

relationships “include those in which a party entrusts himself to the protection of another and relies

upon that person to provide a place of safety.” Id. Under this exception, the relationship alone

gives rise to the duty. Faheen, By & Through Hebron v. City Parking Corp., 734 S.W.2d 270, 272

(Mo. App. E.D. 1987).

On appeal, Earley argues that Dunn had a duty to protect Earley from the third-party

criminal assault by Young because the employer-employee relationship is a special relationship. 2

In support, Earley cites numerous cases in which this Court included the employer-employee

relationship in a list of other special relationships. That list is typically stated as follows: “Such

relationships are usually delineated as those of innkeeper-guest, common carrier-passenger,

school-student, and sometimes employer-employee.” Meadows v. Friedmann R.R. Salvage

Warehouse, 655 S.W.2d 718, 721 (Mo. App. E.D. 1983) (citing Virginia D. v. Madesco Investment

Corp., 648 S.W.2d 881 (Mo. banc 1983) and Goldberg v. Housing Authority of Newark, 38 N.J.

578 (1962)).

Initially, we have found no Missouri case holding that the employer-employee relationship

should be considered a special relationship justifying departure from the general “no duty” rule.

2 The parties dispute whether Dunn was Earley’s employer. Because we conclude that Dunn owed no duty even if she was Earley’s employer, we do not address this issue.

4 There exists no case law in this jurisdiction in which a court conducted an analysis on the issue.

We have also been unable to locate any cases in which our courts have actually applied the special

relationship exception to an employer. 3 Instead, the concept appears to have come into our

jurisprudence simply by being included, without elaboration, in a list of the types of relationships

that can fit within the special relationship exception.

This list of relationships was first set out in Meadows v. Friedmann R.R. Salvage

Warehouse. 655 S.W.2d at 721. In Meadows, one of the plaintiffs was shot and injured while on

the defendant’s premises as a customer. Id. at 720. Meadows, therefore, involved the question of

whether a business had a duty to protect its invitees from third-party criminal actions. See id. This

Court held that there was no special relationship between a business and its invitees. Id. During its

discussion, the Court did not conduct any analysis of the employer-employee relationship or

mention the concept beyond including it in the list. As a result, the statement in Meadows that an

employer-employee relationship can “sometimes” be a special relationship was unnecessary to the

holding and is dictum. See Byrne & Jones Enterprises, Inc. v. Monroe City R-1 Sch. Dist., 493

S.W.3d 847, 855 (Mo. banc 2016) (“Judicial decisions ‘must be construed with reference to the

facts and issues of the particular case, and that the authority of the decision as a precedent is limited

to those points of law which are raised by the record, considered by the court, and necessary to a

decision.”).

Meadows’s inclusion of the employer-employee relationship in the list of special

relationships was also unsupported by the two cases it relied on for the proposition. The first of

those cases was Virginia D. v. Madesco Investment Corp., in which a plaintiff sued a hotel for

3 We have, however, identified authority from other jurisdictions holding that the employer-employee relationship is not a special relationship. See, e.g., Dupont v. Aavid Thermal Techs., Inc., 798 A.2d 587, 590 (N.H. 2002) (“We decline to hold that the employment relationship is the type of ‘special’ relationship that gives rise to a duty to protect against foreseeable criminal attacks by third parties.”).

5 negligence after she was sexually assaulted in one of the hotel’s bathrooms. 648 S.W.2d at 883. In

reversing the judgment in favor of the hotel, the Court discussed the innkeeper-guest and common

carrier-passenger relationships, but it did not discuss or mention the employer-employee

relationship. Id. at 886-89.

The second case Meadows relied on was the New Jersey case of Goldberg v. Housing

Authority of Newark. Goldberg involved a delivery person that sued the owner of a housing project

after being assaulted on the property. 38 N.J. at 579. The plaintiff argued that the property owner,

a public entity, had a duty to provide police protection at the property. Id. at 580. The case did not

involve the question of whether an employer owed its employee a duty to protect from third-party

criminal acts and provided little substantive discussion of the issue.

Goldberg did, however, include a discussion of Lillie v. Thompson, in which the United

States Supreme Court reversed the dismissal of a claim under the Federal Employers’ Liability

Act. 332 U.S. 459, 460 (1947). In Lillie, the petitioner claimed that she was injured as a result of

her employer’s negligence “in sending her to work in a place he knew to be unsafe without taking

reasonable measures to protect her.” Id. The petitioner worked the night shift alone in an isolated

part of her employer’s railroad yards. Id. Her duties were to receive and deliver messages to

employees operating the trains. Id. at 461. In order to receive their messages, the employees would

knock on the door and the petitioner would admit them. Id. The building had no windows, and the

petitioner was required to open the door to identify the person seeking entry. Id. One night, after

responding to a knock at the door, the petitioner was attacked by a non-employee and suffered

serious injuries. Id. The petitioner alleged that her employer “had reason to know that the yards

were frequented by dangerous characters,” but “failed to exercise reasonable care to light the

building and its surroundings or to guard or patrol it in any way.” Id. at 460-61. The Court found

6 that the petitioner sufficiently alleged that her employer had a duty. Id. at 461. The duty arose

because the employer “was aware of conditions which created a likelihood that a young woman

performing the duties required of petitioner would suffer just such an injury as was in fact inflicted

upon her.” Id. at 461-62. In other words, the employer’s duty arose from his knowledge of the

risk—not from a special relationship with the employee. See id. at 462 n.4.

The New Jersey court in Goldberg distinguished Lillie from the criminal attack involving

the delivery person. Goldberg noted that Lillie relied heavily on the facts and circumstances known

to the employer at the time of the attack against its employee. 38 N.J. at 585-86. Goldberg

distinguished this from the circumstances of the delivery person, in which such knowledge of

danger was not attributed to the property owner. Id. at 585-92. Notably for our purposes, Goldberg

did not hold, and did not discuss, whether an employer-employee relationship creates a duty, in

and of itself, to protect employees from criminal acts of third parties.

Nevertheless, following Meadows, this Court has continued to state in its opinions that the

employer-employee relationship is “sometimes” a special relationship. Yet, none of those cases

have actually applied the exception to this relationship. In fact, the case that came the closest to

discussing the issue ultimately determined that the exception did not apply. In Claybon v. Midwest

Petroleum Co., a third party shot and killed Reginald Claybon while Claybon was at the

defendant’s service station applying for a job. 819 S.W.2d 742, 744 (Mo. App. E.D. 1991).

Claybon’s mother sued the service station for wrongful death, arguing that the defendant had a

duty to protect Claybon from the third party’s criminal acts. Id. This Court rejected that argument,

finding no special relationship existed between the defendant and Claybon. Id. at 745-47. This

Court held that neither party alleged or admitted that Claybon was an employee and that, even if

he was an employee, he was on the premises as a member of the general public when he was

7 injured. Id. at 745. Claybon did not analyze whether the employer-employee relationship should

be considered a special relationship, it simply cited the list of relationships first set forth in

Meadows and found that the relationship had not been established. See id. at 744-45.

From these cases, it is apparent that the employer-employee relationship has never truly

been recognized as a special relationship in Missouri so as to impose a duty to protect employees

from the criminal actions of third parties. Earley has provided no independent argument for the

inclusion of the employer-employee relationship in this exception, instead, choosing to rely on the

multiple repetitions of the Meadows dictum. But repetition of dictum does not make law, and

Dunn’s relationship with Earley did not create a duty to protect against the assault by Young.

This does not mean, however, that an employer can never owe a duty to protect its

employees from third-party criminal acts. Take, for example, Lillie v. Thompson, discussed above,

in which the Supreme Court found that a plaintiff adequately pleaded that her employer owed her

a duty based on the facts and circumstances of the case. It is notable that this case was not based

on the employer-employee relationship, but instead required a finding that the employer “was

aware of conditions which created a likelihood” that the circumstances of the employment created

a particularized danger that the employee “would suffer just such an injury as was in fact inflicted

upon her.” 332 U.S. at 461-62.

This bears a striking resemblance to the duties a business owner owes to its invitees as

recently discussed by the Supreme Court of Missouri in Wieland v. Owner-Operator Services, Inc.

A business owner, like an employer, typically owes no duty to protect its invitees from third-party

criminal acts. Wieland, 540 S.W.3d at 848. There are two exceptions to this rule: 1) “when the

defendant knows, or has reason to know, that a third party is harming or is about to harm an

entrant,” and 2) “when the nature of the defendant’s business or past experience provides a basis

8 for the reasonable anticipation on defendant’s part that the criminal activity of third persons might

put entrants at risk.” Id. at 848-49 (quoting The Law of Premises Liability § 11.03[1], 11-6). We

conclude that this same standard applies as the benchmark for measuring when an employer owes

its employee a duty to protect against the criminal acts of third parties.

Earley has not argued in this Court that the facts and circumstances of her employment

gave rise to a duty or that Dunn had any knowledge of any danger of a criminal attack being

perpetrated against Earley. Even so, in reviewing the summary judgment record in the light most

favorable to Earley, we find no duty arose. Earley admits that Young had never arrived at Dunn’s

house intoxicated in the early morning hours before and that Young did not have a prior criminal

history outside of traffic violations. Earley does not allege here that Dunn had knowledge of any

other circumstances that would put Earley at risk of a criminal attack while on the job. Therefore,

Dunn had no duty to protect Earley from the unforeseeable attack by Young.

Finally, we note that Earley also argued that under Missouri law, Dunn, as her employer,

owed her certain nondelegable duties, including the following: (1) to provide a safe place to work;

(2) to provide safe appliances, tools, and equipment for work; (3) to give warning of dangers of

which the employee might reasonably be expected to remain in ignorance; (4) to provide a

sufficient number of suitable fellow servants; and (5) to promulgate and enforce rules for the

conduct of employees which would make the work safe. See Peters v. Wady Industires, Inc., 489

S.W.3d 784, 795 (Mo. banc 2016). 4 However, Early has provided no authority demonstrating that

these duties have ever been held to include a duty to protect the employee from third-party criminal

acts unless the employer had knowledge of such a danger.

4 As discussed in depth in the Peters opinion, Missouri’s Workers’ Compensation Law provides a “no-fault system of compensation” that was intended to replace common law actions for work-related injuries. 489 S.W.3d at 791. As a result, the question of whether an employer has breached these duties is not commonly litigated.

9 V. Conclusion

For the foregoing reasons, the judgment of the circuit court is affirmed.

_________________ John P. Torbitzky, J.

Gary M. Gaertner, Jr., P.J., and Cristian M. Stevens, J., concur.