Liability For Third-Party Criminal Acts

The Missouri Supreme Court has recognized that business owners may be under a duty to protect their invitees from the criminal acts of unknown third persons depending upon the facts and circumstances of a given case. Madden v. C&K Barbecue Carry Out, Inc., 758 S.W.2d 59, 81 (Mo. banc 1988) (citing Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976)). The touchstone for the creation of this duty is foreseeability. Id. at 81. 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 to the business owners’ customers. Id. (citing Lowrey v. Horvath, 689 S.W.2d 625, 627 (Mo. banc 1985)).

Essentially, the Madden court adopts Section 344 of the Restatement 2d of Torts which:

Recognizes a duty on the part of a possessor of land who holds it open to the public for entry for business purposes to protect members of the public while they are on the land from the intentional harmful acts of their persons or in the alternative to warn visitors so they can avoid the harm. Under the Restatement approach, this duty may arise when the landowner knows or has 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 visitors, even if the landowner has no reason to expect harmful conduct on the part of any particular individual.

Id. (citing Restatement 2nd of Torts, Section 344, Comment F) (emphasis added). The Western District extensively discussed Madden in Richardson v. Quik Trip Corporation, 81 S.W.3d 54 (Mo. App. W.D. 2002).

In Richardson, Margaret Jaccard Richardson was raped by an unknown assailant in the lady’s room of a Quik Trip convenience store located in Kansas City, Missouri. Richardson, 81 S.W.3d at 56. Ms. Richardson filed suit alleging that Quik Trip 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. Quik Trip, the defendant, filed a summary judgment motion asserting that it owed no duty to Ms. Richardson to protect her from the criminal acts of the unknown third parties. Id.

Quik Trip argued that it had installed locks on its bathrooms that required its customers to obtain a key from the store attendant. After the locks were installed, Quik Trip periodically experienced problems with customers walking off with the restroom keys. Quik Trip then decided that the easiest way to deal with this problem was to remove the strikers from the locks so that the locks no longer functioned and the keys were no longer necessary. After removing these locks, Margaret Richardson used the lady’s restroom at the Quik Trip store and attempted to lock the door. Shortly thereafter, a man entered the lady’s restroom, pushed in the stall door and raped her.

With regard to the past crimes at the Quik Trip, the record reflected that there were two strong arm robberies at the store in the three weeks prior to the attack on plaintiff, that there was an armed robbery that occurred a year before the attack, and that there were five larcenies and three vandalisms within the last five years. There was also evidence that a rape was reported at the truck stop across from the Quik Trip, approximately a year before Ms. Richardson’s attack. The evidence in the case also established that Quik Trip was located near railroad tracks and a truck stop and that bums and vagrants would loiter on the property. It was also noted that the Quik Trip was operating a 24-hour convenience store/gas station on the premises and the nature of such a business and its hours of operation made it at least slightly more prone to be a target for criminal activity. Richardson, 81 S.W.2d at 64-65.

Ultimately, the Richardson court concluded that there was evidence from which it could be found that Quik Trip recognized the potential for criminal activity and responded by taking a number of security precautions. These precautions included the installation of an alarm system in the interior portion of the store and the installation of surveillance cameras covering the interior portion of the store and part of the outside lot where the gas pumps were situated. Id. at 65. Although cameras were provided in various locations of the Quik Trip store, there was no camera coverage for the rear of the store or the side of the store where the restrooms were located. Although the Richardson court concluded that the evidence of the security measures taken by Quik Trip may not have given rise to an assumed duty in and of itself, it certainly further supported the conclusion that Quik Trip recognize the potential for criminal attacks on its property. In the end, the Richardson court concluded that Quik Trip had a legal duty to take reasonable precautions to avoid criminal attacks. Id. at 65-66.

In Richardson, the Western District held that the Supreme Court in Madden clearly indicated that business owners will be held to have a duty to protect their invitees from the criminal acts of unknown third parties when the facts and circumstances of a given case establish that a criminal act on the plaintiff was foreseeable. Id. at 60 (citing Madden, 758 S.W.2d at 62).

The Richardson court also held that, in Madden, the Missouri Supreme Court 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 criminal acts of unknown third parties. This approach is consistent with the standard applied in the majority of other jurisdictions that have addressed this same issue. Richardson, 81 S.W.3d at 62-63.

The Supreme Court in Madden 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 issues, leads to illogical and inequitable results. Id. at 64. The Richardson court went on to state:

While previous, similar violent acts occurring on the premises may constitute the most compelling evidence of the criminal act giving rise to an action was foreseeable, and in many cases may be the only way for a plaintiff to efficiently 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.

Id. at 64. Some of the most relevant factors that should be considered, include but are not limited to, (1) the nature of the business location; (2) the character of the business; and (3) past crimes in the area. Id. at 64-65.

Experts to Consider in Third-Party Criminal Act Cases

When handling a third-party criminal act case, you will need to gather as much information as you can about the business at issue and its crime problems. You will also want to collect information relating to crime problems in the general area. With regard to the prior crimes, you will need to contact your local police department and request “Dispatch activity reports”, “Calls for Service” reports, police reports relating to specific incidents, and Crime Statistic Reports. The following experts can help you obtain the needed information and put the case together:

• Security Expert

• Police Officer

• Criminologist

• Industry Standards Expert