Richardson v. QuikTrip Corp.

81 S.W.3d 54, 2002 Mo. App. LEXIS 653, 2002 WL 471863

• Court: Missouri Court of Appeals
• Decided: March 29, 2002
• Docket: WD 58884
• Status: Published

Opinions

JOSEPH M. ELLIS, Judge.

On May 14, 1994, Margaret Jaceard Richardson was raped by an unknown assailant in the ladies’ room of the QuikTrip Convenience Store at 7201 East Front Street in Kansas City, Missouri. On October 10, 1998, Ms. Richardson filed a Petition for Damages in the Circuit Court of Jackson County alleging that QuikTrip was negligent in disabling the restroom door lock, failing to provide adequate warning of the danger, and failing to provide other security measures to protect her. On October 7, 1999, QuikTrip filed a Motion for Summary Judgment asserting that it owed no duty to Ms. Richardson to protect her from the criminal acts of unknown third parties. On July 5, 2000, the trial court granted QuikTrip’s Motion for Summary Judgment and entered judgment accordingly. Ms. Richardson (hereafter “Appellant”) brings this appeal.

Our review of the trial court’s decision to grant a motion for summary judgment is essentially de novo, and this court applies the same criteria as the trial court in determining whether summary judgment was properly granted. Robinson v. Missouri State Highway & Transp. Comm’n, 24 S.W.3d 67, 73 (Mo.App. W.D.2000) (quoting ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). “Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law.” Id. When considering appeals from summary judgments, we review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the party against whom judgment was entered. Id. ‘Where the record reasonably supports any inference other than those necessary to support a judgment for the movant, a genuine issue of material fact exists and the movant’s motion for summary judgment should be overruled.” J.M. v. Shell Oil Co., 922 S.W.2d 759, 761 (Mo. banc 1996). Viewed in the light most favorable to Appellant, the facts of this case are as follows.

At all times relevant to this opinion, QuikTrip owned and operated a 24 hour convenience store/gas station located at 7201 East Front Street in Kansas City, Missouri (“the store”).¹ The store was situated in a commercial area near the railroad tracks. Vagrants, bums and other non-customers would occasionally loiter on the premises.

QuikTrip provided restrooms for its patrons’ use at the store. Prior to May 14, 1994, both the men’s and women’s restrooms at the store were accessible only from the outside through doors located on the side of the building.

Originally, the doors to the restrooms did not have locks. At some point, however, QuikTrip discovered that holes had been drilled in the stall partitions of the mens’ restroom that were being used by an individual or individuals to watch customers as they relieved themselves. To protect its customers from this type of deviant criminal behavior, QuikTrip installed locks on the restroom doors that engaged whenever the doors were closed. As a result, customers were required to obtain a key from the store attendant in order to access the restrooms.

After the locks were installed, QuikTrip periodically experienced problems with customers walking off with the restroom keys. Eventually, the store supervisor and store manager tired of dealing with these inconveniences. They decided that the cheapest and easiest way to correct the problem was to remove the strikers from the locks so that the locks no longer functioned and keys were no longer necessary. Acting upon this solution, the locks were disabled and rendered ineffective.

Subsequently, at approximately 2:30 a.m. on May 14, 1994, Appellant and Kirk Richardson stopped at the store. Appellant went to use the women’s restroom. After Appellant entered the restroom, Mr. Richardson went into the store to get some cigarettes. Once inside the restroom, Appellant attempted to lock the door but was unable to do so because the striker had been removed from the lock. Appellant then went into the stall in the restroom. She tried to lock the stall door, but that lock also did not function. Shortly thereafter, a man entered the women’s restroom, pushed in the stall door and raped Appellant.

On October 10, 1998, Appellant filed a Petition for Damages in the Circuit Court of Jackson County alleging that QuikTrip was negligent in disabling the restroom lock, failing to provide adequate warning of the danger, and faffing to provide other security measures to protect her. On October 7, 1999, QuikTrip filed a Motion for Summary Judgment asserting that it owed no duty to Appellant to protect her from the criminal acts of unknown third parties. On November 3, 1999, Appellant filed her Response and Suggestions in Opposition to QuikTrip’s motion claiming that the attack on Appellant was foreseeable and that QuikTrip had created a dangerous condition by disabling the restroom lock.

On July 5, 2000, the trial court granted QuikTrip’s Motion for Summary Judgment and entered judgment against Appellant. The trial court found that no special relationship existed between Appellant and QuikTrip that would give rise to a duty to protect her from the criminal actions of an unknown third party and that she had failed to present sufficient evidence of “frequent and recent similar, violent crimes at Defendant’s location” to give rise to a duty-based on special circumstances.

On appeal, Appellant claims the trial court erred in finding that special circumstances did not exist; in relying solely on the number of prior violent crimes committed on the premises; and in failing to consider other evidence relevant to whether the attack on Appellant was foreseeable. Based on a series of cases from all three districts of this court, the trial court determined that only evidence of violent crimes on the premises could establish a duty on the part of QuikTrip, that no other evidence was relevant to determining whether an attack on Appellant was sufficiently foreseeable to give rise to such a duty, and that Appellant did not present evidence of a sufficient number of violent crimes at the convenience store to establish a duty on the part of QuikTrip. Appellant contends that the trial court should have considered other evidence she presented in determining whether the attack was foreseeable and that the evidence reflects that the attack on Appellant was sufficiently foreseeable to give rise to a duty on the part of QuikTrip.

“Generally, there is no duty to protect business invitees from the criminal acts of unknown third persons.” Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo. banc 1988). But Missouri case law has historically recognized exceptions to this rule which have arisen from “special relationships” or “special facts and circumstances.” Faheen v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App. E.D.1987). Prior to 1988, cases addressing a business owner’s duty to protect a business invitee from the violent criminal acts of unknown third parties² where no special relationship existed would find “special facts and circumstances” only where it was shown that frequent and recent occurrences of violent crimes by unknown assailants had occurred on the premises of the business. See Id.; Warren v. Lombardo’s Enters., Inc., 706 S.W.2d 286, 287 (Mo.App. E.D.1986); Brown v. National Supermarkets, Inc., 679 S.W.2d 307, 309 (Mo.App. E.D.1987). Accordingly, where no special relationship existed and the third party was not known to the business owner, a duty could only be established if the plaintiff presented evidence that numerous, similar violent crimes had recently occurred on the premises. This has been referred to as the violent crimes exception. Faheen, 734 S.W.2d at 273.

In 1988, however, the Missouri Supreme Court revised these standards when it last addressed the issue of a business owner’s duty to protect business invitees from third party criminal acts in Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988).³ In Madden, the Court stated that, while there is generally no duty on the part of a business to protect business invitees from the criminal acts of unknown third persons, “a duty to exercise care may be imposed by common law under the facts and circumstances of a given case.” Id. at 61 (emphasis added). The court went on to hold:

Consistent with the holding in Virginia D. [ v. Madesco Inv. Corp., 648 S.W.2d (Mo.banc 1983)], with the court of appeals decision in Brown, and with the rule established by the Restatement of Torts, the Court recognizes that business owners may be under a duty to protect their invitees from the criminal attacks of unknown third persons depending upon the facts and circumstances of a given case. The touchstone for the creation of a duty is foreseeability. A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Lowrey v. Horvath, 689 S.W.2d 625, 627 (Mo. banc 1985).⁴

Madden, 758 S.W.2d at 62.

As noted by this court in Becker v. Diamond Parking, Inc., 768 S.W.2d 169, 170-71 (Mo.App. W.D.1989), “[t]he essence of Madden is that a duty may arise whenever it is foreseeable that conduct of a known or unknown third person is likely to endanger the safety of a visitor.” Such a duty may be imposed under the facts and circumstances of a given case. Id. at 170. Thus, Madden changed the focus of premises liability cases involving third party criminal acts to impose a duty when it is foreseeable under the facts and circumstances of the case that the conduct of a third person is likely to endanger the safety of a business invitee. Id. at 170-71.

Nevertheless, in 1993, the Eastern District of this court treated Becker’s statements of law as dicta and held that Madden was merely restating the longstanding violent crimes exception. Miller v. South County Ctr., Inc., 857 S.W.2d 507, 512 (Mo.App. E.D.1993). A year later, this court, relying on the Eastern District’s decision in Miller, also treated Becker’s declarations as non-binding dicta. Schelp v. Cohen-Esrey Real Estate Servs., Inc., 889 S.W.2d 848, 851-52 (Mo.App. W.D.1994). These cases are incorrect for two reasons.

First, Becker’s analysis cannot be deemed to be dicta. Obiter dicta, by definition, is a “gratuitous opinion.” Muench v. South Side Nat’l Bank, 251 S.W.2d 1, 6 (Mo.1952). “[Statements ... are obiter dicta [if] they [are] not essential to the court’s decision of the issue before it.” Campbell v. Labor & Indus. Relations Comm’n, 907 S.W.2d 246, 251 (Mo.App. W.D.1995). In Becker, the trial court had granted summary judgment based upon the fact that the defendant had only presented evidence of one prior violent crime occurring on the premises, finding that evidence of numerous violent crimes was necessary to invoke the special circumstances exception. Becker, 768 S.W.2d at 170. In reversing the trial court’s decision, the Becker court set forth the legal standard prescribed by Madden for determining whether a duty arose and applied the facts of the case to that standard to reach its decision. Id. at 170-71. Indeed, the court in Becker stated: “With the criteria for liability of a business owner set forth in Madden, this court holds that the trial court was in error when it granted defendant’s motion for summary judgment.” Id. at 170. Thus, the Becker court’s analysis and application of Madden was integral to that decision. There is no rational or plausible basis for treating the Becker court’s statements and declarations as obiter dicta.

Second, the language of Madden simply does not support the conclusion that the Supreme Court merely intended to restate the already well-established violent crimes standard. The language of Madden evinces the intent by the Supreme Court to impose a duty on business owners to protect their invitees from reasonably foreseeable criminal attacks. In so doing, the court adopts what amounts to a totality of the circumstances approach.⁵ The court clearly indicates that business owners will be held to have a duty to protect their invitees when the “facts and circumstances of a given case” establish that a criminal attack on the plaintiff was foreseeable. Madden, 758 S.W.2d at 62. In stating the duty of care, in its final sentence, the Court cites to a rescue doctrine case for the proposition that “[a] duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury.” Id. (citing Lowrey v. Horvath, 689 S.W.2d 625, 627 (Mo. banc 1985)).

In addition, and just as telling, the dissenting opinions in Madden reflect opposition based upon the fact that the Court was imposing a new duty upon business owners that had not been previously imposed under Missouri law.

Today, “the Court recognizes that business owners may be under a duty to protect them invitees from the criminal attacks of unknown third persons depending upon the facts and circumstances of a given case.” It must be conceded that the Court implants a duty on the part of business owners not heretofore raised by the law. In my view, the Court thereby makes the law and departs from the judicial process.

Madden, 758 S.W.2d at 66 (Donnelly, J. dissenting) (emphasis in original).

On April 26, 1983, this Court tested the water on making Missouri citizens liable in damages for injuries inflicted by criminals to persons on their property. Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881 (Mo. banc 1983). Virginia D. recovered damages for rape by an assailant in a hotel restroom. While the majority indicated that they were only enlarging “innkeeper’s liability,” the recovery was awarded, not to a guest of the hotel, but to a patron of Mrs. Hulling’s restaurant, one of the building tenants.

Today, all of the Missouri business community is clearly and unequivocally saddled with liability for criminal acts committed against persons on the property of the business. Every person in Missouri is going to find the cost of guards, security systems, and higher liability insurance premiums added to the cost of the groceries and products sold by the business establishments. All of this in addition to the taxes we pay to have the finest Highway Patrol, city and county police forces possible. As was suggested by Donnelly, J., if there be social policy or reason for making this change, it should be done by the legislature, not by the courts.

Id. at 66-67 (Welliver, J. dissenting). Such dissents would make no sense if the Madden majority were merely restating the existing violent crimes exception.

While the cases rejecting Becker and Madden have relied on the Madden Court’s reference to Brown v. National Supermarkets, Inc., 679 S.W.2d 307 (Mo.App. E.D.1984), an ordinary violent crimes exception case, to assert that Madden was not effecting any change from the prior violent crimes standard, See Miller, 857 S.W.2d at 511; Schelp, 889 S.W.2d at 852, those cases wholly ignore the Court’s reference to the Restatement, Virginia D. and Lowrey. Madden cited to Restatement (Second) of Torts, Section 344, Comment f which provides that “[if] the place or character of [a business cnvner’s] business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it.” Restatement (Second) of Torts, Section SJU, Comment f (emphasis added).⁶ Comment f describes an approach that considers more than merely prior violent crimes occurring on the premises. The factors to be considered under Restatement § 344 include the nature of the business location, the character of the business, and past crimes in the area. MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 130 (1st Cir.1989). A totality of the circumstances approach is consistent with Restatement (Second) of Torts, Section 344, Comment f 62A Am. Jur.2d Premises Liability § 520.

The Madden Court also stated that its decision was consistent with the holding of Virginia D. While the court in Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881, 887 (Mo. banc 1983), found an innkeeper/guest relationship existed in that case and therefore applied a different standard of care,⁷ the Court assessed the foreseeability of criminal acts by examining the totality of the circumstances. The Court considered the location of the restroom where the sexual assault occurred, the poor design of the restroom, and the fact that “there were problems with young men or boys who gathered in the lower lobby as often as two or three times a week and who probably vandalized the men’s room” in determining that sufficient evidence existed to alert management to the possibility of crime on the premises and invoke the duty to protect guests. Id. at 888. The Court found that criminal acts were foreseeable in a basement restroom despite the fact that there was “no evidence of recent incidents of rape, assault, robbery or other violent crime in or near the hotel ... [n]or was there any evidence of previous criminal activity or violence in the lower level ladies’ room.” Id. at 884. The Court stated, “There is no requirement that there be at least one mugging or rape before the innkeeper is obliged to consider the possibility.” Id. at 887.

In light of the unambiguous and un-equivocable language of Madden, the lack of any reference to the violent crimes exception, and the Court’s reliance on Restatement § 344 and Virginia D, there is simply no rational basis for suggesting that Madden merely restated the already established violent crimes exception.⁸

By stating that a duty would be imposed where a criminal attack was foreseeable under the facts and circumstances of the case, the Missouri Supreme Court in Madden adopted a totality of the circumstances approach for determining the duty owed by a business owner to a business invitee to protect the invitee from the criminal acts of unknown third parties.⁹ Madden, 758 S.W.2d at 62. This approach is consistent with the standard applied in the majority of other jurisdictions that have addressed the issue. Posecai v. Wal-Mart Stores, 752 So.2d 762, 767 (La.1999); See Foster v. Po Folks, Inc., 674 So.2d 843, 844 (Fla.Dist.Ct.1996); Hills v. Bridgeview Little League Ass’n, 195 Ill.2d 210, 253 Ill.Dec. 632, 745 N.E.2d 1166, 1188 (2000); Ellis v. Luxbury Hotels, Inc., 716 N.E.2d 359, 360-61 (Ind.1999); Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121, 129 (1997); Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 694 A.2d 1017, 1022 (1997); Collins v. Down River Specialties, Inc., 128 Ohio App.3d 365, 715 N.E.2d 189, 191 (1998); Jeffords v. Lesesne, 343 S.C. 656, 541 S.E.2d 847, 850 (Ct.App.2000); Knoll v. Board of Regents of the Univ. of Neb., 258 Neb. 1, 601 N.W.2d 757, 764 (1999); Maguire v. Hilton Hotels Corp., 79 Hawai'i 110, 899 P.2d 393, 399 (1995); Scialabba v. Brandise Constr. Co., 112 Nev. 965, 921 P.2d 928, 931 (1996); Stanton v. Univ. of Maine Sys., 773 A.2d 1045, 1049 (Me.2001); Luisi v. Foodmaster Supermarkets, Inc., 50 Mass.App.Ct. 575, 739 N.E.2d 702, 704 (2000); See also Taco Bell, Inc. v. Lannon, 744 P.2d 43, 48 (Colo.1987) (“Simply because something has not yet happened does not mean that its happening is not foreseeable. Instead, foreseeability is based on common sense perceptions of the risks created by various conditions and circumstances.”).¹⁰

“‘[T]he modern trend holds that foreseeability of a violent crime being perpetrated on a patron is not absolutely dependent upon notice of prior crimes of a similar nature occurring on or near the premises, but may also be determined from all of the circumstances present.’ ” Scialabba, 921 P.2d at 931 (quoting Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796, 799-800 (1993)).¹¹ This general trend away from the simplistic and subjective prior criminal incidents approach is based upon the general perception that it is “fatally flawed” because (1) it leads to results contrary to public policy by discouraging landowners from taking adequate measures to protect premises known to be dangerous, (2) initial victims who are denied recovery are treated differently from subsequent victims even if the attacks are equally foreseeable, (3) limiting evidence of foreseeability to prior similar criminal acts leads to arbitrary results and distinctions, and (4) the rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts. McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 899-900 (Tenn.1996) (quoting Isaacs v. Huntington Mem’l Hosp., 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, 658-59 (1985)).

In Madden, our Supreme Court recognized that the simplistic approach of relying solely upon the existence of prior violent crimes occurring on the premises to assess foreseeability, while disregarding other evidence relevant to the issue, leads to illogical and inequitable results. While previous, similar violent acts occurring on the premises may constitute the most compelling evidence that the criminal act giving rise to an action was foreseeable, and in many cases may be the only way for a plaintiff to sufficiently establish foreseeability, other types of evidence may be probative on this issue and, in certain instances, may be sufficient when all facts and circumstances are weighed together to establish the requisite level of foreseeability. The Madden Court’s holding that the foreseeability of criminal acts is determined by all of the facts and circumstances of a given case, i.e. the totality of the circumstances, avoids the illogical and inequitable results that can occur with strict application of the violent crimes exception. It recognizes that there is no logical reason for the courts to put on blinders and ignore relevant evidence in assessing the duty of the business owner.¹²

With this understanding of our Supreme Court’s most recent controlling decision dealing with the issues before us, we must now consider whether, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to Appellant, the attack on Appellant could be deemed sufficiently foreseeable under all the facts and circumstances of this case to impose a duty on QuikTrip. Madden, 758 S.W.2d at 62. Some of the relevant factors to be considered include the nature of the business location, the character of the business, and past crimes in the area.¹³ See Restatement (Second) of Torts § 344, Comment f; MacQuarrie, 877 F.2d at 130.

With regard to past crimes on the premises and in the area, the record contains police reports indicating that two strong-arm robberies had occurred at the store in the three weeks prior to the attack on Plaintiff. The record also reflects that an armed robbery occurred about a year before the attack and that five larcenies and three incidents of vandalism had occurred over the previous five years. There is also evidence that a rape was reported at the truck stop across the street from QuikTrip a little over a year before the attack on Plaintiff. In addition, QuikTrip was aware that deviant criminal behavior had occurred in at least one of the restrooms. The evidence regarding the location of business reflects that the store was located in the city near the railroad tracks and a truck stop and that bums and vagrants would loiter on the property.

As to the nature of the business, Quik-Trip was operating a 24 hour convenience store/gas station on the premises. Obviously, the nature of such a business and its hours of operation make it at least slightly more prone to be a target for criminal activity. See Cohen v. Southland Corp., 157 Cal.App.3d 130, 203 Cal.Rptr. 572, 578 (Cal.App.1984); Hills v. Bridgeview Little League Ass’n, 195 Ill.2d 210, 253 Ill.Dec. 632, 745 N.E.2d 1166, 1188 (2000) (citing Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, 216 n. 8 (1993)) (noting that the character of some business establishments open to the public, such as a parking garage or an all-night convenience store, creates a special temptation and opportunity for criminal misconduct that helps give rise to and affects the scope of the duty to protect). Furthermore, the nature of the restroom itself, accessible at all hours through a door on the side of the building that cannot be locked and which is not visible to any of the employees, creates an environment that may well attract crime.

There is evidence from which it could be found that QuikTrip recognized the potential for criminal activity and responded by taking a number of security precautions.¹⁴ QuikTrip installed an alarm system in the interior of the store. The store also installed surveillance cameras covering the interior of the store and the part of the outside lot on which the gas pumps were situated. But it provided no camera coverage for the rear of the store or the side of the store where the restrooms were located.

In addition, QuikTrip installed locks on the restroom doors to protect its customers after discovering that deviant criminal activity had occurred in at least one of the restrooms. It is reasonable to infer that such measures would not have been taken unless QuikTrip foresaw the potential for further criminal activity in the restrooms in the future.¹⁵ The evidence reflects that the subsequent disabling of those locks was performed for the convenience of QuikTrip and its employees and not because the potential for criminal activity had abated.

Moreover, the assistant manager for the store testified that for safety reasons, as a matter of store policy, employees were not allowed to take the trash out to the dumpster behind the store at night. QuikTrip’s policy of restricting employees from going around to the back of the store where there were no surveillance cameras supports an inference that it recognized additional danger of a criminal attack on portions of the property where no security devices were installed. On the whole, the evidence of the security measures taken by QuikTrip, while not giving rise to an assumed duty in and of itself,¹⁶ further supports the conclusion that QuikTrip recognized the potential for criminal attack on its property.¹⁷

Viewing the evidence in the light most favorable to the Appellant, we find that under the facts and circumstances of this case it was foreseeable that an unwelcome individual would enter the women’s restroom while it was occupied by a lone woman and attack her.¹⁸ Consequently, Quik-Trip had a legal duty to take reasonable precautions to avoid such attacks.¹⁹

Having found that QuikTrip had a duty to protect Appellant, as a business invitee, against criminal acts from unknown third persons under the facts and circumstances of this case, there remain genuine issues of material fact to be decided. Accordingly, the trial court’s grant of summary judgment in favor of QuikTrip is reversed and the case is remanded for further proceedings consistent with this opinion.

LOWENSTEIN, BRECKENRIDGE, NEWTON, HOLLIGER and HARDWICK, JJ„ concur.

SPINDEN, C.J., concurs in separate opinion filed.

ULRICH, SMART, SMITH and HOWARD, JJ., concur in opinion of SPINDEN, C.J.

1 . The store was subsequently relocated to a different property down the street.

2 . The cases also recognized an exception where the business owner was aware of the presence of the third party known to be violent by the business owner or who behaves in a manner indicating danger to business invitees, and the business owner had sufficient time to prevent injury. Faheen, 734 S.W.2d at 273.

3 . J.M. v. Shell Oil Co., 922 S.W.2d 759, 761 n. 1 (Mo. banc 1996).

4 . Lowrey involved the imposition of the rescue doctrine.

5 . In his concurring opinion, Judge Robertson advocates the adoption of a balancing test, which was apparently rejected by the majority. Madden, 758 S.W.2d at 65 (Robertson, J. concurring).

6 . The Restatement (Second) of Torts § 344 provides:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Comment f provides:

Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have 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 the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

7 . The plaintiff in Virginia D. was having dinner at a restaurant that leased space from the defendant hotel. Because the restaurant did not have a restroom of its own, the plaintiff entered the hotel and went to a women’s restroom in the hotel where she was sexually assaulted. The Court held that the innkeeper/guest relationship "extends to patrons of separately owned and operated eating establishments in a situations such as this one, in which the restaurants are an integral part of the hotel operation and are accessible through the hotel lobby.” Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881, 886 (Mo. banc 1983).

8 . In Aaron v. Havens, 758 S.W.2d 446, 447 (Mo. banc 1988), the Missouri Supreme Court cited to Madden and Virginia D. in noting that ”[t]he abstract proposition that there is no duty to protect against criminal misconduct is substantially attenuated in several recent cases.” "To find a duty only the incidence of harm, not necessarily the quantum, need be foreseeable.” Id. at 448.

In his dissent in Aaron, Judge Robertson noted that in Madden the court "found a duty of care in the proprietor of a business to protect invitees from foreseeable criminal acts of third parties.” Id. at 451. Judge Robertson expressed his opinion that the business-invitee relationship was a special one that justified the imposition of this duty under some circumstances and that he did not believe that the landlord-tenant relationship rose to the same level. Id. He noted that under Madden for business owners “ '[a] duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury.’ ” Id. (quoting Madden, 758 S.W.2d at 62).

In analyzing Aaron, this court has stated, "We agree with plaintiffs that Aaron shows the court is willing to determine foreseeability from all the circumstances of the case, without rigidly adhering to the requirement that the landlord have knowledge of prior violent crimes on the premises.” Kopoian v. George W. Miller & Co., 901 S.W.2d 63, 70 (Mo.App. W.D.1995) (emphasis in original). This case law further supports the conclusion that the prior violent crimes exception has been abandoned in favor of the totality of the circumstances standard.

9 . Despite the Missouri Supreme Court’s statements in Madden and its apparent willingness to consider all of the circumstances in accessing the foreseeability of criminal acts, the majority of subsequent cases in the Missouri Court of Appeals have ignored Madden and followed prior case law indicating that only evidence of recent occurrences of violent crime on the premises of the defendant were relevant to determining whether criminal acts on the premises were foreseeable. See L.A.C. v. Ward Parkway Shopping Ctr. Co., 2001 WL 376347 (Mo.App. W.D. Apr.17, 2001); Moreland v. Farren-Davis, 58 S.W.3d 5 (Mo.App. W.D.2001); Hudson v. Riverport Performance Arts Ctr, 37 S.W.3d 261 (Mo.App. E.D.2000); Smoote v. Sinclair Oil Corp., 1999 WL 1219882 (Mo.App. E.D.1999); Knop v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., 988 S.W.2d 586 (Mo.App. E.D.1999); Wood v. Centermark Properties, Inc., 984 S.W.2d 517 (Mo.App. E.D.1998); Groce v. Kansas City Spirit, Inc., 925 S.W.2d 880 (Mo.App. W.D.1996); Bowman v. McDonald’s Corp., 916 S.W.2d 270 (Mo.App. W.D.1995); Schelp v. Cohen-Esrey Real Estate Servs., Inc., 889 S.W.2d 848 (Mo.App. W.D.1994); Claybon v. Midwest Petroleum Co., 819 S.W.2d 742 (Mo.App. E.D.1991); Keenan v. Miriam Found., 784 S.W.2d 298 (Mo.App. E.D.1990). These cases held that evidence of non-violent crimes on the premises and evidence of violent crimes in the immediate vicinity could not be considered in determining whether violent criminal actions were foreseeable. Some cases even went so far as to exclude evidence of crimes occurring outside the building from consideration in cases involving criminal acts against the plaintiff inside the building and vice versa. Pickle v. Denny's Rest., Inc., 763 S.W.2d 678, 681 (Mo.App. W.D.1988); Hudson v. Riverport Performance Arts Ctr., 37 S.W.3d 261, 265 (Mo.App. E.D.2000); Bowman v. McDonald’s Corp., 916 S.W.2d 270, 278 (Mo.App. W.D.1995); Wood v. Centermark Properties, Inc., 984 S.W.2d 517, 525 (Mo.App. E.D.1998). To the extent that L.A.C., Moreland, Groce, Bowman, and Pickle, all decided by this court, are inconsistent with Madden, Becker, and this opinion, they are overruled. As to those cases cited in this note decided by the Eastern and Southern districts of the Court of Appeals, to the extent that they are inconsistent with Madden, Becker and this opinion, we decline to follow them.

10 . Other jurisdictions have adopted a balancing approach to replace the prior criminal incidents test for determining the duty of business owners to protect customers from foreseeable criminal activity. See McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 902-03 (Tenn.1996); Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, 215 (1993); Posecai v. Wal-Mart Stores, 752 So.2d 762, 768 (La.1999).

11 . Certainly, some other jurisdictions have clung to the prior crimes exception. See Doe v. Wal-Mart Stores, Inc., 198 W.Va. 100, 479 S.E.2d 610, 616 n. 2 (1996); Raider v. Greyhound Lines, Inc., 94 Wash.App. 816, 975 P.2d 518, 519 (1999). However, even some of those jurisdictions consider evidence of criminal acts occurring beyond the bounds of the premises and non-violent criminal acts in assessing the foreseeability of violent crimes occurring on the premises. See, e.g., Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 694 N.Y.S.2d 445, 446 (N.Y.App.Div.1999) (noting that criminal activity relied upon to establish foreseeability does not need to have occurred on the same premises nor does it need to be the same type of criminal conduct).

12 . The concurring opinion acknowledges that Madden requires us to look at the “facts and circumstances of a given case” in determining the foreseeability of a third party criminal attack. Concurring Op. at 70. But it then incongruously asserts that certain facts and circumstances should not be considered in determining the foreseeability of injury. Id. at 71. But as the phrase clearly reflects, weighing "the facts and circumstances of a given case” to determine whether a criminal attack by an unknown third party is foreseeable involves considering all of the facts and circumstances and weighing all of them together to determine whether there is a foreseeable likelihood of harm or injury sufficient to give rise to a duty of care. See Madden, 758 S.W.2d at 62. The concurring opinion is unconvincing in trying to explain how weighing the facts and circumstances of the case differs from a totality of the circumstances approach.

The concurring opinion suggests that the nature of a business, its hours of operation, and its location are not facts or circumstances that have any bearing on whether a criminal attack against a patron is reasonably foreseeable. The fact is, however, that each of those matters may be a fact or circumstance in a given case and must be given appropriate consideration. But none of those factors individually establish foreseeability. Rather, they are merely a part of the facts and circumstances to be viewed and weighed on a case by case basis. To the extent the concurrence is saying those facts and circumstances cannot be considered, we disagree.

13 . “The totality of the circumstances standard encompasses all the factors a reasonably prudent person would consider.” Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 694 A.2d 1017, 1023 (1997). “[I]n determining whether the totality of the circumstances supports the imposition of a duty, a court must look to ‘all of the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.’ ” Ellis v. Lwcbury Hotels, Inc., 716 N.E.2d 359, 360-61 (Ind.1999) (quoting Delta Tau Delta v. Johnson, 111 N.E.2d 968, 972 (Ind.1999)).

14 . "[G]enerally speaking, commercial establishments are well positioned ‘to know the extent of crime on the premises * * * to take measures to thwart it and to distribute the costs’ associated with providing security.” Hills v. Bridgeview Little League Ass’n, 195 Ill.2d 210, 253 Ill.Dec. 632, 745 N.E.2d 1166, 1188 (2000) (quoting McClung, 937 S.W.2d at 903).

15 . See Lechmanski v. Marine Midland Bank, 259 A.D.2d 966, 703 N.Y.S.2d 612, 613-14 (N.Y.App.Div.1999) ("In opposition to the motion for summary judgment, plaintiff submitted evidence that a locking mechanism on the vestibule door, which is designed to allow access to the vestibule only by persons with ATM cards, had been broken for at least a year.... The fact that defendant installed a locking mechanism on the vestibule door for the protection of patrons who utilized the ATM after the bank was closed raises a factual issue whether the attack on plaintiff was foreseeable, rather than merely conceivable. Plaintiffs evidence that defendant allowed the lock to remain in a broken condition for at least a year raises a further factual issue whether defendant took reasonable precautions to secure its premises.”).

16 . Under current Missouri law, "[t]o establish a business assumed a duty to protect their invitees against actions of third parties, there must be a showing that there was an express assurance of safety to the invitee and the invitee relied on those assurances.” Hudson v. Riverport Performance Arts Centre, 37 S.W.3d 261, 266-67 (Mo.App. E.D.2000).

17 . See Lechmanski v. Marine Midland Bank, 259 A.D.2d 966, 703 N.Y.S.2d 612, 613-14 (N.Y.App.Div.1999)

18 . The Nebraska Supreme Court reached a similar conclusion in Gans v. Parkview Plaza Partnership, 253 Neb. 373, 571 N.W.2d 261 (1997). In Gans, the court found that an attack on a lone female was foreseeable where the property owner "knew, or should have known, that the secluded location of the office building at the end of a dead-end street presented an easy target for criminal activity” and that the lock on suite often occupied by women at night could not be operated from the inside even though the property owner did not have knowledge of any prior criminal activity on the premises aside from a single burglary. Id. at 268-69.

19 . Contrary to the concurring opinion’s assertions, nothing in this opinion can or should be read to imply that mere operation of an all-night business makes criminal attacks against patrons by unknown third parties sufficiently foreseeable to give rise to a duty, nor does this opinion hold that a duty could arise if there were no history of crime in the area in which the business was located. This court has merely applied the applicable standard of review, weighed all of the facts and circumstances in accordance with that standard of review, and determined that under all of the facts and circumstances a criminal attack by an unknown third party was sufficiently foreseeable to give rise to a duty on the part of Quiktrip.

We also take issue with the concurring opinion’s claim that we are adopting a totality of the circumstances approach that has not been approved by our Supreme Court and that it is inappropriate to do so. As we have acknowledged throughout, we view the phrase “totality of the circumstances” as identical to, and interchangeable with, the phrase "the facts and circumstances of a given case” as used by the Supreme Court in Madden. Accordingly, we are not adopting something that has not been approved by the Missouri Supreme Court. To the contrary, it is our intention to carry out our constitutional duty to follow the most recent controlling decision of our Supreme Court. Schumann v. Missouri Highway & Transportation Comm’n, 912 S.W.2d 548, 552 (Mo.App. W.D.1995).