Faheen Ex Rel. Hebron v. City Parking Corp.

734 S.W.2d 270, 1987 Mo. App. LEXIS 4461
CourtMissouri Court of Appeals
DecidedJuly 28, 1987
Docket52523
StatusPublished
Cited by64 cases

This text of 734 S.W.2d 270 (Faheen Ex Rel. Hebron v. City Parking Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faheen Ex Rel. Hebron v. City Parking Corp., 734 S.W.2d 270, 1987 Mo. App. LEXIS 4461 (Mo. Ct. App. 1987).

Opinion

CRANDALL, Judge.

Plaintiffs, Melissa Faheen, the sole surviving child of George Faheen, by and through her next friend Mary C. Hebron, and Sadie Faheen, the mother of George Faheen, brought this action for the wrongful death of George Faheen. Defendants, Mansion House Center South Tower Redevelopment Corporation, Norman S. Altman, Pierre V. Heftier, E.J. Ehrlich, and Hart Perry, are the general partners of Mansion House Center South Redevelopment Company, which owns the Mansion House Center apartment complex and its attached parking garage. Defendant, City Parking Corporation, operates the garage. Upon motion of defendants, the trial court dismissed with prejudice plaintiffs’ second amended petition for failure to state a claim. Plaintiffs appeal from that order. We affirm.

We first consider the relevant allegations of fact in plaintiffs’ petition. On October 16, 1981, George Faheen died in a car bombing which occurred in the Mansion House parking garage. George Faheen was a tenant of Mansion House with the right to use the parking garage. From January 1,1976 to October 31,1981, crimes had been reported on the premises of the Mansion House complex or in close proximity thereto. Those reported incidents of crime, which included arson, robbery, assault, burglary, stealing, and various misdemeanors, were known to defendants. The substantial majority of the reported *272 crimes were crimes against property. Pri- or to George Faheen’s death, there had not been a murder or a bombing at Mansion House.

Plaintiffs allege that defendants negligently failed to take reasonable precautions, in the form of adequate security or warning, to protect the tenants of Mansion House from criminal assaults in the parking garage by unknown third persons. Plaintiffs contend that this negligence was the proximate cause of George Faheen’s death.

The salient issue is whether plaintiffs state a claim for actionable negligence. In an action for negligence, plaintiff must allege ultimate facts which, if proven, show (1) the existence of a duty on the part of defendant to protect plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 720 (Mo.App.1983).

In this appeal, we focus on the first element, the existence of a duty. As a rule, a party has no duty to protect another from a deliberate criminal attack by a third person. Meadows, 655 S.W.2d at 718; see generally Annot. 10 A.L.R.3d 619, 626 et seq. Policy reasons for this rule include: judicial reluctance to tamper with a traditional, common law concept; the notion that the deliberate criminal act of a third person is the intervening cause of harm to another; the difficulty that often exists in determining the foreseeability of criminal acts; the vagueness of the standard the owner must meet; the economic consequences of imposing such a duty; and conflict with the public policy that protecting citizens is the government’s duty rather than a duty of the private sector. Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984) (citing Cornpropst v. Sloan, 528 S.W.2d 188, 195 (Tenn.1975)).

Despite this general rule, the law recognizes some obligations of a party to protect others against a deliberate criminal attack by a third person. See Meadows, 655 S.W.2d at 721; Restatement (Second) of Torts, Section 302B comment e (1965). These exceptions include, inter alia, obligations arising from “special relationships” or “special facts and circumstances.” Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976); Meadows, 655 S.W.2d at 721.

The concept of a special relationship exists when one entrusts himself to the protection of another and relies upon that person to provide a place of safety. Nappier, 666 S.W.2d at 861; Virginia D. v. Madesco Investment Corporation, 648 S.W.2d 881, 885-886 (Mo. banc 1983). Special relationships which are recognized in Missouri include innkeeper-guest, common carrier-passenger, school-student, and sometimes employer-employee. Meadows, 655 S.W.2d at 721. In those situations, the relationship alone gives rise to the duty.

Plaintiffs concede that this is not a “special relationship” case. They assert liability under the “special facts and circumstances” exception. A special facts exception requires some relationship between the plaintiff and the defendant which encourages the plaintiff to come upon the defendant’s premises.

In the case sub judice, the pleaded relationship is that of landlord and tenant. That relationship is not recognized in Missouri as a special relationship which, in itself, gives rise to a duty. Advanced Rental Centers, Inc., v. Philip Brown and Morelock-Ross Builders, Inc., 729 S.W.2d 644, 646 (Mo.App.1987). Rather, that relationship plus other elements may give rise to the duty to protect. See, e.g., Brown v. Nat. Supermarkets, 679 S.W.2d 307 (Mo.App.1984); Vorbeck v. Carnegie’s at Soulard, Inc., 704 S.W.2d 296 (Mo.App.1986); Warren v. Lombardo’s Enterprises, Inc., 706 S.W.2d 286 (Mo.App.1986).

The special facts exception includes two possible theories of liability: (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. Irby v. St. Louis County Cab Co., 560 S.W.2d 392 (Mo.App.1977); Scheibel, 531 S.W.2d at 288; Piz *273 zurro v. First North County Bank and Trust Co., 545 S.W.2d 348 (Mo.App.1976); Brown, 679 S.W.2d at 309; Vorbeck, 704 S.W.2d at 296; Warren, 706 S.W.2d at 288. Under the first theory, the duty may arise when a person, known to be violent, is present on the premises or an individual is present who has conducted himself so as to indicate danger and sufficient time exists to prevent injury. Meadows, 655 S.W.2d at 721. Missouri and other jurisdictions generally recognize a duty in the known third person situation.

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734 S.W.2d 270, 1987 Mo. App. LEXIS 4461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faheen-ex-rel-hebron-v-city-parking-corp-moctapp-1987.