Appellants, David and Susan Hudson, (“appellants”), appeal the judgment of the Circuit Court of the City of St. Louis granting motions for summary judgment in favor of the respondents, Riverport Performance Arts Centre, Joint Venture, Contemporary Investment Corp ., Sverdr-up/MDRC Joint Venture; McDonnell Douglas Realty Co., Contemporary Productions, Inc., (сollectively, “Riverport”), and BMW Entertainment Services, Inc., (“BMW”), denying the appellants’ motion for leave to file a third amendment by interlineation. We affirm.
On July 26, 1996, appellants filed suit to recover for injuries sustained from an assault from an unknown third party while attending a concert at Riverport Amphitheater during a Lynyrd Skynyrd and Doobie Brоthers Concert and for loss of consortium. There was evidence that Mr. Hudson was struck in the face with a whiskey bottle by a “long-haired gentleman” after an argument arose over a blanket. In his deposition, Mr. Hudson testified that two or three minutes prior to the assault, he and the “long-haired” gentleman had exchanged some words. The long-haired gentleman then walked away, and Mr. Hudson, “just assumed it was over.” Then the “long-haired” gentleman approached Mr. Hudson the second time and in “just a few seconds” he struck Mr. Hudson with a bottle. The “long-haired” gentleman then faded into the crowd. Mr. Hudson was immediately escorted by his friends to seek medical treatment, аnd Mrs. Hudson went to get security.
Riverport had entered into a contract with BMW to provide security. On the night in question, BMW had employed 90 security personnel, 14 of which were patrolling the lawn area in which appellants were seated. Mrs. Hudson testified, two or three security personnel were standing approximately twenty feet from them, but were unaware of the attack until she ran to them for help. Additional security personnel were at the entrance of the amphitheater conducting pat-down searches, checking bags and blankets, etc. Bottles are not allowed on the premises of the amphitheater and are confiscated if found.
BMW filed a motion for summary judgment arguing appellants failed to offer any evidence that BMW would fall within a recognized exception to the general rule, there is no duty to protect a business invitee from criminal acts of unknown third persons. Riverport adopted BMW’s motion for summary judgment that the trial cоurt treated as a joint motion for summary judgment. On August 19, 1999, the eve of a summary judgment hearing, the appellants filed their motion for leave to a file a third amendment to petition. Through said motion, appellants sought to add a claim “...the search conducted by the Defendants was negligent in faffing to discover a glass bottle of аlcohol on the perpetrators that engaged in a fight at the performance on the Defendant Riverport’s premises, by which Plaintiff, David Hudson, was struck, resulting in the injuries he sustained...” The trial court sustained the motions for summary judgment stating the appellants failed to show Riverport or BMW owed a duty to protect them, an inviteе, from criminal acts of unknown third persons. The trial court denied appellants’ proposed amendment; finding it lacked merit and appeared to be asserted
Appellate review of a motion for summary judgment is essentially de novo.
ITT Commercial Finance v. Mid-Am. Marine,
Appellants raise two points on appeal. 2 Appellants argue the trial court erred: 1) in sustaining the motions for summary judgment and in ruling appellants failed to adduce evidence that this case fell within a recognized exception to the general rule, there is no duty to protect a business invitee from criminal aсts of unknown third persons, giving rise to an assumed duty; and 2) in denying appellants’ motion for leave to file a third amendment to petition by interlineation alleging the pat-down searches were conducted in a negligent manner failing to discover the existence of a bottle on the person of assailant who struck Mr. Hudson.
In their first point, appellants argue the trial court erred in granting summary judgment, because the appellants introduced sufficient facts to establish BMW and Riverport assumed a duty to protect appellants and were negligent by failing to provide enough, adequate security to prevent an attack by a third person. In an action for negligence, plaintiffs must allege facts which, if proven, would show: “1) the existence of a duty on the part of the defendant to protect the plaintiff from injury, 2) failure of the defendant to perform that duty, and 3) injury to the plaintiff resulting from such failure.”
Meadows v. Friedman R.R. Salvage Warehouse,
Under Missouri law, the general rule is there is no duty to protect a business invitee from criminal acts of unknown third persons.
Id.
at 721. However, a duty may be imposed by common law if there is a “special relationship” or if “special facts and circumstances” exist.
3
Faheen by Hebron v. City Parking Corp.,
Since, appellants do not allege a “special relationship” existed between themselves and Riverport and BMW, we will not address the issue. Appellants do allege they elicited sufficient evidence, by deposition and documents, to bring this case within the “special facts and circumstances” exception. We disagree. Appellants have failed to show Riverport or BMW had any knowledge the “long-haired” gentleman who assaulted Mr. Hudson was violent or, prior to this incident, acted in a manner as to indicate danger. In fact, in his deposition, Mr. Hudson indicated just the opposite. He testified that two or three minutes before the assault, he and the “long-haired” gentleman had exchanged some words. The long-haired gentleman then walked away, and Mr. Hudson, “just assumed it was over.” Further, Mr. Hudson testified he was not even sure if anyone in his group noticed this exchange, and personally, he did not feel the need to inform the security personnel. When the “long-haired” gentleman approached Mr. Hudson the second time, Mr. Hudson testified “just a few seconds” had lapsed between the time he approached Mr. Hudson and struck him. This indicates that not only was there not sufficient time to put Riverport and BMW on notice of the “long-haired” gentleman’s violent propensities, but there was insufficient time for the security personnel standing twenty feet away to prevent the attack. Therefore, appellants failed to establish that this case falls within the first situation that the “special facts and circumstances” exception can be applied.
Appellants allege as ticket holders, they were encouraged to come on the premises. By introducing fifty-five police reports from 1992 to 1996, appellant tried to establish that numerous similar prior fights had occurred at Riverport to put them and BMW on notice. Out of fifty-five police reports, fifty-two of them were documented assaults. Only fourteen of the assaults actually occurred on the lawn area, the same location appellants were located; twenty-four occurred in other areas inside the premises оf Riverport; and, fourteen occurred in the parking lot. Of the fifty-two assaults, only one involved a glass bottle, and it occurred in the parking lot. After excluding all of the incidents that occurred outside of Amphitheater, there is evidence that thirty-eight assaults occurred at Riverport within a five-year time span. Out of these аssaults, most appeared to be fistfights, elbowing, pushing, kicking, and pulling hair; none of these assaults involved a bottle or other similar object. These assaults are not sufficiently similar in nature to the incident in this case or numerous to put Riverport or BMW on notice. Therefore, appellants have failed altogether to establish this case falls within the “special facts and circumstances” exception.
Appellants also contend the trial court erred in granting summary judgment and finding no duty existed, because appellants were third-party beneficiaries of the contract between BMW and Riverport. Appellants specifically rely on language in the contract requiring BMW to use their “best efforts” to insure the safety and welfare of patrons. Appellants cite no case law that supports their contentions. In fact, the case they do cite,
Wood v. Centermark Properties, Inc.,
In this case, appellants failed to elicit any evidence or point to specific language in the contract to show BMW or Riverport intended to confer a direct benefit on them. Therefore, they have faded to overcome the strong presumрtion parties contract for themselves, and to establish a duty on the part of Riverport or BMW.
In their second point on appeal, appellants allege the trial court erred in denying their motion for leave to file a third amendment to the petition by inter-lineation, alleging the pat-down searches were conducted in a negligent manner, failing to discover the existence of a bottle on the person of assadant who struck Mr. Hudson.
Rule 55.33(a) provides leave to amend “shall be freely given where justice so requires.” Trial courts have broad discretion in granting leave to amend and only clearly erroneous dеcisions can be reversed.
Wheelehan v. Dueker,
In determining whether the trial court erred in denying the motion to amend, it is important to determine whether the proposed amendment could have cured the inadequacies of thе appellants’ pleading in light of BMW and Riverport’s motions for summary judgment. Appellants alleged: “...the search conducted by the Defendants was negligent in failing to discover a glass bottle of alcohol on the perpetrators that engaged in a fight at the performance on the Defendant-Riverport’s premisеs, by which Plaintiff, David Hudson, was struck, resulting in the injuries he sustained ...”
Appellants’ proposed amendment and brief on appeal fail to articulate facts and cite to case law that supports their contention BMW and Riverport negligently conducted their searches. As already stated, to establish negligence onе must first establish a duty. Further, the general rule is there is no duty to protect a business invitee from criminal acts of unknown third persons. However, one may voluntarily assume a duty to protect the safety of an invitee.
See, Keenan v. Miriam Foundation,
Appellants failed to plead or elicit in their depositions whether there was an express assurance of safety made to the patrons of Riverport; and even if such an assurance was made, whether the appellants relied on such. Appellants’ claim of a negligent search, as pleaded, lacked merit. Consequently, the trial court did not abuse its discretion in denying their motion for amendment. Further, there is evidence the factual circumstances surrounding the claim for a negligent search, that Mr. Hudson was hit with a bottle on the premises after a pat-down search was conducted at the entrance of the amphithеater, was evident early on in the case. For this reason, the court found the appellants had ample time to plead such a claim and did so on the eve of a summary judgment hearing only to avoid the dispositive motions. We find the trial court decision not to grant leave to amend was not clearly erroneous. The court properly considered both the impact on appellants if the motion was denied, and reasons for the moving party’s failure to include the matter in the original proceedings.
Based on the foregoing, we affirm the grant of the motion for summary judgment in favor of BMW and Riverport and find the trial court was nоt clearly erroneous in denying the appellants’ motion for leave to file a third amendment by interlineation.
Notes
. Additional facts pertinent to address the issues may be added as necessary.
. We remind attorneys when drafting their points relied on to review the dictates of
Thummel v. King,
. Appéllants also argue on appeal, this case falls within the "public use" doctrine exception, citing,
e.g., Roth v. Zukowski,
.This exception is also commonly referred to as the "violent crimes” exception.
See, e.g., Wood v. Centermark Properties, Inc. .,