Trader v. Blanz

937 S.W.2d 325, 1996 Mo. App. LEXIS 1952, 1996 WL 688334
CourtMissouri Court of Appeals
DecidedDecember 3, 1996
DocketNo. WD 51869
StatusPublished
Cited by6 cases

This text of 937 S.W.2d 325 (Trader v. Blanz) 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
Trader v. Blanz, 937 S.W.2d 325, 1996 Mo. App. LEXIS 1952, 1996 WL 688334 (Mo. Ct. App. 1996).

Opinion

ELLIS, Presiding Judge.

Joshua Trader and Lynsay Trader, by and through their next friend, Phyllis Winters, appeal from a defendant’s verdict entered in Jackson County Circuit Court in their wrongful death action against Metropolitan Transportation Services, Inc. d/b/a Yellow Cab (“MTSI”).

Mark Trader (“Trader”) was the father of Joshua and Lynsay Trader. On April 29, 1992, MTSI driver, Scott Blanz, picked up Trader at a neighborhood bar and grill. Trader smelled of alcohol and appeared inebriated, but was able to maneuver by himself. Another gentleman, Mr. James Mansfield, accompanied Trader to the cab and directed Blanz to drive Trader to his apartment at 40th and Crysler. Although Trader appeared inebriated, he was coherent and gave Blanz directions to his apartment throughout the trip.

Once the cab arrived at the apartment complex, Trader paid the fare and exited the cab. Blanz watched him walk half-way up the sidewalk and then began to count his money. When Blanz heard voices, he looked up and saw Trader standing on his porch smoking a cigarette, apparently arguing with Mansfield. Blanz considered Mansfield’s presence at the apartment odd because Mansfield had been with Trader at the bar when Blanz first picked him up, but Mans[327]*327field had not ridden in the cab with them to the apartment complex.

Blanz continued to count his money, looking up at Trader and Mansfield every so often. After several minutes, Blanz turned the cab around to exit the apartment complex. As Blanz was leaving, he called the dispatcher, an old friend with whom he often discussed the odd situations he observed while he was driving the cab. Blanz told him about the incident. The dispatcher told Blanz that, if there was no physical contact, he should just leave. Blanz also asked his fiance, who was riding with him in the cab, if she thought that they should stay. She said “No.” Sometime after Blanz left, Trader was stabbed to death. Mansfield was subsequently charged with and convicted for the murder.

The Plaintiffs brought this wrongful death action claiming Blanz was negligent for failing to anticipate the criminal actions against Trader and failing to take any action to prevent his death. Plaintiffs’ Petition alleged that Blanz “owed a duty to exercise a high degree of care to protect decedent from injury and death and to take reasonable precautions to insure his safety,” because he “knew or in the exercise of a high degree of care should have known, an assault upon decedent, Mark Trader, was likely.” The case was tried to a jury. At the conclusion of the Plaintiffs’ case, MTSI moved for a directed verdict. The trial court denied MTSI’s motion. The case was submitted and after deliberations, the jury returned a verdict in favor of MTSI. The Plaintiffs filed a Motion for New Trial, which the court denied, and they then perfected this appeal.

The Plaintiffs argue three points on appeal: the first claiming error in admission of certain evidence, the second asserting the trial court erred by not declaring, as a matter of law, that Blanz was an agent of MTSI, and finally, that a converse instruction was erroneously given. We need not address any of these contentions directly because we conclude the Plaintiffs failed to make a submissi-ble case.

Taxicabs are common carriers. Harding v. Triplett, 235 S.W.2d 112, 113 (Mo.App. E.D.1950). Missouri case law holds that “a common carrier has a duty to exercise the highest degree of care to safely transport its passengers and to protect them while in transit.” Collier v. Bi-State Dev. Agency, 700 S.W.2d 479, 480 (Mo.App. E.D.1985) (emphasis added). In other words, the law imposes upon the carrier the duty to exercise the highest degree of care while the passenger-carrier relationship exists. Meyer v. St. Louis Pub. Serv. Co., 241 Mo.App. 1057, 253 S.W.2d 525, 529 (1952). This duty includes the protection of passengers from all known and reasonably foreseeable dangers, “at least until the passenger has been discharged from the carrier at a reasonably safe place.” Sanford v. Bi-State Dev. Agency, 705 S.W.2d 572, 575 (Mo.App. E.D.1986); Plummer v. Dace, 818 S.W.2d 317, 320 (Mo.App. E.D.1991). This duty, however, does not rise to the level of strict liability or to that of an insurer. Collier v. Bi-State Dev. Agency, 700 S.W.2d at 480.

Once the passenger has safely alighted from the carrier and is upon the street or sidewalk, he is no longer a passenger and the carrier is no longer responsible as such. Meyer v. St. Louis Pub. Serv. Co., 253 S.W.2d at 529. Missouri has long held that the common carrier is not liable for injuries sustained by a former passenger in the course of traveling from the point of debarkation to the ultimate destination because once the passenger safely alights from the carrier and is upon the street, the passenger-carrier relationship is terminated. Sanford v. Bi-State Dev. Agency, 705 S.W.2d at 575; Lieser v. Bi-State Dev. Agency, 509 S.W.2d 53 (Mo. banc 1974); Lanham v. St. Louis Pub. Serv. Co., 360 S.W.2d 243, 246 (Mo.App. E.D.1962). Thus, upon Trader’s safe debarkation from the cab, the passenger-carrier relationship terminated and Blanz no longer owed him a duty of protection from all known and reasonably foreseeable dangers. See Sanford v. Bi-State Dev. Agency, 705 S.W.2d at 575; Plummer v. Dace, 818 S.W.2d at 320.

Recognizing this long established case law, the Plaintiffs pleaded and tried their case on the theory that a new duty to protect Trader arose when Blanz stayed to watch him walk [328]*328up the sidewalk. This theory of liability is based on Restatement (Second) of Torts, § 323 (1965), which provides in pertinent part:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if
(a) his failure to exercise such increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

This section was adopted in Missouri in Stanturf v. Sipes, 447 S.W.2d 558 (Mo. banc 1969). See also Strickland v. Taco Bell Corp., 849 S.W.2d 127 (Mo.App. E.D.1993); Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo. banc 1992).

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937 S.W.2d 325, 1996 Mo. App. LEXIS 1952, 1996 WL 688334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trader-v-blanz-moctapp-1996.