W. Brent Powell, Judge.
Owner-Operator Services Inc. appeals the circuit court's judgment in favor of Amie Wieland for her claim of negligence alleging her employer, Owner-Operator, breached its duty to protect her from the criminal act of a third person on its premises. Owner-Operator argues the circuit court erred in submitting a verdict director
Wieland was an Owner-Operator employee when she was served at her workplace with an ex parte order of protection sought and secured by Alan Lovelace, her ex-boyfriend. Wieland told Owner-Operator's director of human resources the allegations of harassment supporting the ex parte order of protection were acts Lovelace was committing against her, not vice versa. Wieland told the director she was scared and felt threatened by Lovelace. The director asked Wieland to provide a description and photograph of Lovelace, which Wieland did. The director gave the description and photograph to the supervisor of the front desk receptionists to disseminate. The director also told her supervisor and Owner-Operator's volunteer safety team about the situation.
Two weeks later, Wieland attended the court hearing set to consider the order of protection, and the case was dismissed after Lovelace failed to appear. Wieland returned to work that same day and told the director she was "fearful" but did not know if Lovelace would show up to her workplace. When Wieland left work that day, she encountered Lovelace lying in wait inside her vehicle parked in the employee parking lot. As Wieland attempted to walk away from Lovelace, he shot her in the back of the head.
Wieland survived the attack and filed a petition alleging negligence against Owner-Operator, contending the business breached its duty of care to protect her against the criminal act of a third person on its premises. At trial, Wieland offered evidence of Owner-Operator's internal safety protocol in place when an employee reports concerns of a potential threat from a known person. In addition to the actions taken after Wieland expressed concern about her safety, Owner-Operator's internal protocol included other precautions Owner-Operator did not undertake, such as offering Wieland a parking space in the visitor's parking lot (which was by the front entrance of the building and in view of the receptionist desk) and offering an escort to Wieland's vehicle by a member of the volunteer safety team. There was also evidence establishing Owner-Operator had security cameras surveilling the employee parking lot, but those cameras were not actively monitored, even after Wieland's reported concerns. The security cameras recorded Lovelace entering the employee parking lot and Wieland's vehicle approximately one hour before he attacked Wieland.
In making her case to the jury, Wieland primarily argued Owner-Operator failed to take reasonable precautions
The jury found in Wieland's favor and awarded her $3,250,000 in damages. The circuit court entered judgment in accordance with the jury's verdict. Owner-Operator then filed a motion for new trial, which the circuit court overruled. Owner-Operator appealed and, after opinion by the court of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.
In any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant's breach proximately caused the plaintiff's injury. L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002). "The touchstone for the creation of a duty is foreseeability." Id. (internal quotations omitted). "A duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable." Id. However, this Court has recognized "two `special facts and circumstances' exceptions to the rule that businesses generally have no duty to protect invitees from criminal acts of third persons." Id. This appeal concerns the differences between these exceptions and Owner-Operator's allegation of error regarding the distinctions between these exceptions.
In recognizing the two exceptions to the "no duty" rule, this Court essentially adopted the rule established by § 344, comment f, of the Restatement (Second) of Torts. See Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988). That rule provides:
Restatement (Second) of Torts § 344 cmt. f (emphasis added).
As further explained:
The Law of Premises Liability § 11.03[1], 11-6 (emphasis added) (internal footnotes omitted).
Notably, the Restatement's rule is phrased in terms of "knows or has reason to know." Restatement (Second) of Torts § 344, cmt. f. Unlike "should know" or "could know," "reason to know" creates no duty of care on the part of the business to preemptively discover the facts in question; rather, "reason to know" means a duty of care arises only after the business has information from which a reasonable actor would infer those facts. See Restatement (Second) of Torts § 12 cmt. a.
Accordingly, this Court has explained, "Under the first exception, `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.'" L.A.C., 75 S.W.3d at 257. Because the first exception concerns when a business knows or has reason to know a specific third person is both (1) on its premises and (2) dangerous, no duty of care arises until
In contrast, the second exception "recognizes `a duty [on the part of business owners] to protect their invitees from the criminal attacks of
While Owner-Operator notes the distinctions between the two exceptions to the "no duty" rule, it does not allege in its first point on appeal that the verdict director failed to properly submit the elements of the first exception, as it argued in the circuit court. In its first point on appeal, Owner-Operator argues the circuit court erred in submitting the verdict director but alleges this error occurred because the submission was based on the first exception,
Owner-Operator is correct that "[a]ny issue submitted to the jury in an
During the instructions conference and in its motion for new trial, Owner-Operator argued the language of the verdict director misstated the substantive law for the first exception because it imposed a duty of care on Owner-Operator before Lovelace entered the premises. But, on appeal, Owner-Operator has changed its argument. Owner-Operator no longer claims the language used in the verdict director was incorrect. To the contrary, Owner-Operator expressly abandons any challenge to the language of the verdict director. Instead, Owner-Operator argues in its first point Wieland failed to present substantial evidence to support the verdict director based on the
Even if Owner-Operator's first point had been preserved for appeal, its argument is meritless. Owner-Operator and the dissent mistakenly compare the evidence submitted at trial to the substantive law rather than to the language of the verdict director. Owner-Operator and the dissent argue there was no substantial evidence to support the verdict director because Wieland's evidence focused only on precautions Owner-Operator could have taken before Lovelace entered the parking lot and, pursuant to the substantive law of the first exception, Owner-Operator had no duty of care until after Lovelace entered the parking lot. This reasoning would be appropriate if Owner-Operator were arguing Wieland's
op. at 857 (emphasis in original).
The "error" identified by the dissent is not that the verdict director submitted to the jury was not supported by substantial evidence as argued by Owner-Operator, but rather that
Owner-Operator even differentiates these two distinct challenges. In the midst of making a substantial-evidence challenge in its first point, Owner-Operator expressly
Owner-Operator's two remaining and preserved points on appeal both relate to Wieland's arguments to the jury. In its second point, Owner-Operator argues the circuit court erred in allowing Wieland to argue to the jury that Owner-Operator was negligent in failing to take precautions before Lovelace entered the parking lot because this misstated the law as instructed in the verdict director. A party may not, in arguing to the jury, misstate "the law
The relevant language in the verdict director simply stated "that defendant knew or by using ordinary care could have known that Alan Lovelace was in its parking lot." This express language of the verdict director was not so narrow as to specify Owner-Operator had no duty of care until after Lovelace entered the parking lot. Nor did this language clearly instruct the jury not to consider Owner-Operator's failure to take precautions that could have led to the discovery of Lovelace in the parking lot. As such, Wieland's trial argument — that the jury should consider precautions Owner-Operator did not undertake pursuant to its protocol before Lovelace entered the parking lot — did not misstate the law as it was stated in the verdict director. Whether the verdict director misstated the substantive law or otherwise misled the jury is a separate and distinct issue not raised by Owner-Operator on appeal. Point II is denied.
Similarly, in its third point on appeal, Owner-Operator argues the circuit
The phrase "by using ordinary care could have known" necessarily imposed a duty of care on Owner-Operator to discover Lovelace's presence. See Restatement (Second) of Torts § 12 cmt. a. Otherwise, it would be irrelevant whether Owner-Operator could have discovered Lovelace's presence "by using ordinary care" because Owner-Operator would not be tasked with using ordinary care absent a duty of care being imposed. See id. Because the verdict director imposed this additional duty to use ordinary care to discover Lovelace's presence (and without specifying whether that duty arose before or after Lovelace entered the parking lot), Wieland's trial argument did not misstate the law as it was stated in the verdict director. And, as with Owner-Operator's second point, whether the verdict director misstated the substantive law in imposing this additional duty is a separate and distinct issue not raised by Owner-Operator on appeal. Point III is denied.
The circuit court's judgment is affirmed.
Fischer, C.J., Draper, Wilson and Stith, JJ., concur.
Russell, J., dissents in separate opinion filed.
Breckenridge, J., concurs in opinion of Russell, J.
Mary R. Russell, Judge, dissenting.
I respectfully dissent. Although the majority opinion states the law correctly, I disagree with its conclusion that Owner-Operator ("Employer") did not preserve its substantial evidence argument for appellate review. Because Employer advanced exactly the same theory of error in its motion for new trial and its appellate brief and properly objected to the verdict director at the instructions conference, its claim that the verdict director was not supported by substantial evidence was properly preserved for appeal. Further, it was error for the circuit court to submit Amie Wieland's ("Employee") verdict director to the jury, as it was not supported by substantial evidence. Actually, Employer did not know of any present danger to Employee until after she had been shot. For these reasons, I would reverse the circuit court's judgment and remand the case for a new trial.
The majority opinion asserts Employer did not preserve on appeal its claim that the verdict director was unsupported by substantial evidence. This is not true. It has been long-established that an issue is preserved for appellate review if it is based on the same theory as presented at trial. Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 188-89 (Mo. banc 2009); Welch v. McNeely, 269 S.W.2d 871, 875 (Mo. 1954) (enforcing "the long-established and
The majority opinion attempts to manufacture a distinction that is without a difference. This parsing of words is inconsequential because Employer advanced the same theory on appeal to this Court as it did in its motion for new trial. Throughout the proceedings, Employer consistently asserted, whether due to its incorrect wording or the sheer lack of evidentiary support, that the verdict director was not supported by substantial evidence. Legal writing is not an exacting science, and this Court does not require a party to use identical argument language throughout the proceedings. Though the arguments in the motion for new trial and appellate briefs are admittedly worded differently, they advance the same substantive theory.
In its appellate brief, Employer asserted the evidence adduced at trial was insufficient to give Employee's verdict director, which submitted a recovery theory under the known-person exception.
Similarly, in its motion for a new trial, Employer also made a substantial evidence argument. First, it asserted that Employee's verdict director did not accurately state the law on either the known-person exception or the unknown-person exception. It raised instructional error as to both theories. "Since it is not clear from the record on which theory of recovery [Employee's] claim was being submitted... [Employer] asserts instructional error as to both." L.F. 110. Employer asserted in its motion that the verdict director was worded incorrectly and allowed the jury to consider Employer's actions before Lovelace entered the premises, which had the effect of allowing the jury to "find a causal link ... based upon circumstances other than those that existed at the time Lovelace entered the parking lot...." L.F. 115-16 (emphasis added). Further, the verdict director "allowed the jury to impermissibly speculate what [Employer] could have known had it taken security precautions [before Lovelace arrived]." L.F. 116 (emphasis added). Employer argued that the effect of the verdict director was to allow the jury to reach a verdict based upon speculation and conjecture. In other words, it argued the verdict director was unsupported by evidence, as was argued in Employer's appellate brief.
This Court has a substantial interest in judicial efficiency and ensuring arguments are properly preserved, but it has an equally important interest in ensuring that verdicts are supported by substantial evidence
Further, Employer made the requisite objection to Employee's proffered verdict director during the instructions conference as required by Rule 70.03. Under this rule, a party must state "distinctly the matter objected to and the grounds of the objection." Rule 70.03. Employer urged the trial court to submit an alternate verdict director expressly limiting the jury to consider only what steps Employer could have taken after it knew of Lovelace's presence on the parking lot. Employer argued:
Tr. 1204-05 (emphasis added). Employer also sufficiently stated the grounds for its objection — that the verdict director failed to comport with the known-person exception by asking "the jury to consider things that are outside the scope" of the exception. Tr. 1192-93. Employer made clear that Employee's instruction, which failed to limit the evidence to be considered under the known-person exception, improperly allowed evidence of what Employer knew or could have known before Lovelace entered the property. Employer clearly objected by stating, "we object to their proposed instruction." Tr. 1208. Because the issue is properly before this Court, its merits should be addressed.
"Any issue submitted to the jury in an instruction must be supported by substantial evidence `from which the jury could reasonably find such issue.'" Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010). "Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case." Id. The verdict director submitted by Employee was intended to be based on the known-person exception. For this exception to apply, the claimant must establish (1) the business owner knew of the third party's presence, (2) the business owner knew the third party presented danger, and (3) there was sufficient time for the business owner to protect its invitees. L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002). Under this exception, a business owner has a duty to protect its invitees from foreseeable dangers brought by a known third party after that known party has entered the business property. No duty exists before the dangerous person has entered the business premises.
Both parties agree the applicable duty of care in this case is based upon what Employer knew or could have known after Lovelace entered the property (the known-person exception). Because the verdict director did not instruct the jury to only consider evidence after Lovelace arrived, it failed to properly instruct on this exception. The verdict director required a finding
The majority opinion posits that Employer's argument — that the verdict director was not supported by substantial evidence — is appropriate only if making a submissibility-of-the-claim-argument, but not if making a submissibility-of-the-instruction argument. Employer did not file a motion for a judgment notwithstanding the verdict as required to make a submissibility-of-the-claim argument. Sanders v. Ahmed, 364 S.W.3d 195, 207-08 (Mo. banc 2012). It did, however, make the requisite objections at the instruction conference and in its motion for new trial and appellate brief to preserve a submissibility-of-the-instruction argument.
The majority opinion classifies a submissibility-of-the-instruction challenge as an argument that an instruction should not be given because substantial evidence does not support an issue as provided by that instruction. op. at 850-51, n. 3. Despite the verdict director incorrectly instructing the jury, the majority opinion compares the mistaken verdict director language to the evidence adduced at trial and finds there was substantial evidence to support it. In effect, the majority opinion holds that even though the verdict director is contrary to Missouri law, the Court is constrained in its analysis to considering only whether the evidence adduced at trial, relevant or not, supports this incorrect verdict director. Here, though the verdict director did not properly instruct the jury on the substantive law of the known-person exception, the majority opinion elects to disregard this error in favor of evaluating the evidence under an incorrect legal standard.
The majority opinion cites to Hayes to support the proposition that this Court must compare the evidence to the language of the verdict director and, in so doing, disregard the verdict director's incorrect recitation of the elements of a claim. That is a misstatement of Hayes. Though Hayes does suggest the verdict director language should be compared to the evidence adduced at trial, unlike in this case, there was no dispute in Hayes that the proffered jury instruction correctly stated the law. 313 S.W.3d at 649.
The majority opinion also relies on State ex rel. Missouri Highway and Transportation Commission v. Our Savior Lutheran Church, 922 S.W.2d 816 (Mo. App. E.D. 1996), to further its argument that the evidence may only be compared to "the law as submitted in the court's instructions." 922 S.W.2d at 819. But Our Savior Lutheran Church also does not bind this Court to the verdict director's incorrect language. The court of appeals found a closing statement's misrepresentation of the law, which was immediately corrected, did not result in prejudice to the opposing party due to repeated iterations of the correct law throughout the trial, including jury instructions accurately stating the law. Id. Indeed, the majority opinion's chosen authority does not guide this Court to analyze a substantial evidence argument using a verdict director that clearly includes issues that are not correct elements of the submitted claim.
The verdict director, erroneously written, cannot invalidate the law governing this case. The only relevant evidence at trial — and the only evidence that may be considered here — is evidence of whether Employer knew or could have known of Lovelace's presence after he entered the property. There was no evidence Employer knew or could have known Lovelace was on its property before Employee was shot.
Employee nevertheless argues Employer breached its ordinary duty of care by neglecting to enforce its precautionary internal protocols, and the evidence she presented involved these omissions. But these measures were steps that could have been taken before Lovelace entered the property. Under the known-person exception, Employer was under no duty to take precautionary measures, as its duty did not arise until after Lovelace entered the property and his danger was known. The Law of Premises Liability § 11.03[1], 11-6. This evidence cannot be considered, and, accordingly, it is not evidence that is "probative of the issues and from which the jury can decide the case."
Employer, having no legal duty to take precautionary measures set out in its protocol, was unaware of Lovelace's presence when he entered the parking lot. And because it had no such duty, it was error to allow the jury to consider whether Employer
For these reasons, I would reverse the circuit court's judgment and remand for a new trial.