Aziz ex rel. Brown v. Jack in the Box, Eastern Division, LP
2015 Mo. App. LEXIS 854
Mo. Ct. App.2015Background
- Jack in the Box operated a 24-hour restaurant with drive‑thru only overnight; written policies recognized loitering/disruptive behavior as creating immediate danger but employees received no formal training and no on‑site security was present.
- An outside security service (Westee) monitored cameras and could be contacted via a panic button/red phone; employees did not use these measures on the night in question.
- A group of ~9 youths (the Lane group) arrived before 5:00 a.m., loitered, played loud music, danced on cars, and obstructed the drive‑thru for 30–60 minutes; employees largely took no action.
- At ~5:13 a.m. plaintiff arrived as a potential customer; he was engaged by members of the Lane group and, after a brief altercation, was beaten, robbed, and left with catastrophic brain injuries. Police arrived after a 911 call at ~5:27 a.m.
- Jury awarded $25 million in damages, apportioning 82% fault to Jack in the Box. Trial court denied defendant’s motion for JNOV and new trial; defendant appealed arguing no duty, lack of invitee status, insufficient submissibility, and erroneous exclusion of impeachment evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jack in the Box owed a duty to protect plaintiff from third‑party criminal acts under the special facts/circumstances exception | The store’s 24‑hour operation, written policies recognizing loitering risk, electronic monitoring, and prolonged disruptive conduct made the attack foreseeable and gave sufficient time to prevent injury | No duty: either no foreseeability of this specific attack or insufficient time to prevent injury once plaintiff arrived | Duty existed under the special facts/circumstances exception; foreseeability and prior prolonged disruption provided sufficient time to act (point denied) |
| Whether plaintiff was an invitee at time of attack | Plaintiff was a prospective customer entering premises; invitee status applies even if he had not completed a purchase | Plaintiff lost invitee status by engaging with the Lane group | Plaintiff was an invitee as a prospective customer in the parking/drive‑thru area (point denied) |
| Whether plaintiff presented substantial evidence to support verdict‑directing instruction (submissibility) | Evidence of duty, breach (failure to disperse/call for help), and proximate causation supported submission | Instruction was defective because it referred to danger to “Plaintiff” specifically and plaintiff was on premises briefly | Instruction was not fatally defective; ordinary reading includes persons in plaintiff’s position and there was substantial evidence on duty, breach, and causation (point denied) |
| Whether exclusion of Dr. Jamry’s fraud conviction (impeachment) required a new trial | Plaintiff relied on Jamry’s opinions; conviction was admissible under §491.050 to impeach credibility and plaintiff opened the door | Exclusion was within trial court discretion and any error was harmless because defendant presented no contrary medical or life‑care evidence | No abuse of discretion; exclusion (even if erroneous) was not prejudicial because defendant offered no rebuttal evidence (point denied) |
Key Cases Cited
- Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. 1988) (establishes foreseeability‑based special facts/circumstances duty for business owners)
- Richardson v. Quik‑Trip Corp., 81 S.W.3d 54 (Mo. Ct. App. 2002) (applies Madden; 24‑hour operation, known crime risks, and store policies can create duty)
- L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247 (Mo. 2002) (discusses when proprietor’s duty to protect invitees from third‑party crime is triggered)
- Hudson v. Riverport Performance Arts Centre, 37 S.W.3d 261 (Mo. Ct. App. 2000) (explains limits of general no‑duty rule and special facts exception)
- Wilkins v. Allied Stores of Mo., 308 S.W.2d 623 (Mo. 1958) (prospective customer equals invitee)
- Hellmann v. Droege’s Super Market, Inc., 943 S.W.2d 655 (Mo. Ct. App. 1997) (business duty extends to customers traversing parking area)
- Moe v. Blue Springs Truck Lines, Inc., 426 S.W.2d 1 (Mo. 1968) (reversible error occurs when exclusion of prior conviction prejudices a party where credibility on a material fact is contested)
- Kopoian v. George W. Miller & Co., Inc., 901 S.W.2d 63 (Mo. Ct. App. 1995) (duty is a legal question for the court)
- Davolt v. Highland, 119 S.W.3d 118 (Mo. Ct. App. 2003) (standard for reviewing submissibility/JNOV)
- Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454 (Mo. banc 2006) (appellate review gives plaintiff benefit of reasonable inferences when reviewing submissibility)