Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845

Background

Employee Amie Wieland told Employer Owner-Operator she feared her ex-boyfriend Alan Lovelace and provided a description and photo; Employer disseminated the description to reception and its volunteer safety team but did not offer a visitor parking spot or escort and did not actively monitor parking-lot cameras.
Lovelace obtained an ex parte protection order against Wieland; the order was dismissed after he failed to appear at a hearing Wieland attended.
After returning to work the day the case was dismissed, Wieland encountered Lovelace hiding in her car in the employee lot and he shot her; she survived.
Wieland sued Owner-Operator for negligence, alleging the employer breached a duty to protect her from the criminal act of a third person on its premises.
The verdict director given to the jury tracked a known-person/foreseeability theory but used language allowing the jury to consider whether Employer "knew or by using ordinary care could have known" Lovelace was in the parking lot (without temporally limiting that duty to after Lovelace’s entry); the jury awarded Wieland $3,250,000.
Owner-Operator appealed, arguing (1) the verdict director was unsupported by substantial evidence and (2) Wieland’s trial arguments misstated the law as instructed; the Supreme Court of Missouri affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Submissibility of the actual verdict director	Wieland argued evidence of Employer’s failure to follow internal safety protocol (unoffered escort, parking, unmonitored cameras) supported the verdict director given to the jury.	Owner-Operator argued the director was unsupported by substantial evidence because, under the known-person exception, no duty arose until after Lovelace entered the lot and Wieland’s evidence focused on precautions before entry.	Court held Owner-Operator failed to preserve this precise substantial-evidence challenge on appeal; even if preserved, the evidence supported the language of the director actually given, so Point I denied.
Whether Wieland’s closing arguments misstated the law as submitted	Wieland argued the jury could consider Employer’s failure to take precautions (including before Lovelace’s arrival) because the verdict director asked whether Employer "knew or by using ordinary care could have known" of Lovelace’s presence.	Owner-Operator argued Wieland’s arguments misstated the law because the jury should have been limited to evaluating what Employer knew after Lovelace entered (per the known-person exception).	Court held Wieland’s arguments did not misstate the law as submitted because the verdict director’s language permitted consideration of what Employer could have known; Point II denied.
Whether Wieland’s arguments improperly expanded the single duty in the verdict director (notify police)	Wieland argued Employer breached a duty to discover Lovelace’s presence (not just notify police) because the director asked whether Employer "by using ordinary care could have known".	Owner-Operator argued the director only submitted a duty to notify law enforcement and Wieland improperly argued other duties.	Court held the phrase "could have known" necessarily imposed a discovery duty under the instruction, so Wieland’s arguments matched the instruction; Point III denied.
Preservation and scope of appellate review of instructional error	Wieland did not have to prove whether the director precisely tracked the substantive law; Employer must preserve and brief specific challenges.	Owner-Operator contended its instruction-related objections preserved the substantial-evidence challenge and the director was legally improper.	Court emphasized preservation rules: Owner-Operator abandoned a direct challenge to the director’s wording on appeal and cannot revive it; review was limited to the issues preserved.

Key Cases Cited

L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247 (Mo. banc 2002) (articulates two exceptions to no-duty rule for third-party criminal acts: known-person and prior-incident/unknown-person).
Hayes v. Price, 313 S.W.3d 645 (Mo. banc 2010) (any issue submitted must be supported by substantial evidence).
Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. banc 1988) (adopts Restatement §344 comment f rule on duty to police premises).
Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc 2012) (distinguishes submissibility-of-the-claim and submissibility-of-the-instruction arguments and preservation rules).
Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623 (Mo. banc 2013) (preservation requirements for instruction-related appellate review).
Hervey v. Mo. Dept. of Corr., 379 S.W.3d 156 (Mo. banc 2012) (reversible error where verdict director omitted an essential element).