Grace KOPOIAN, Jerry Mee and Harry D. Callicotte, Respondents, v. GEORGE W. MILLER & COMPANY, INC., Appellant.
No. WD 47800
Missouri Court of Appeals, Western District
March 14, 1995
As Modified May 30, 1995. Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 1995. Application to Transfer Denied July 25, 1995.
To establish ineffective assistance of counsel, a movant must show that his attorney failed to conform his representation to the degree of skill, care and diligence of a reasonably competent attorney under similar circumstances, and that movant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Furthermore, to prevail on a claim of ineffective assistance of counsel due to counsel‘s failure to call a witness to testify, the movant must show that the witness would have testified if called and that the witness‘s testimony would have aided the movant‘s defense. Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). If counsel believes that the witness‘s testimony would not unqualifiedly support the defense, the decision of whether to call the witness is a matter of trial strategy that will not support a finding of ineffective assistance of counsel. Eldridge v. State, 592 S.W.2d 738, 741 (Mo. banc 1979).
Johnson first claims that he asked trial counsel to call Linda Morant as a witness whose testimony would support his defense. This claim, however, is refuted by the record. During sentencing proceedings, trial counsel was examined by the court pursuant to
Johnson also claims that trial counsel was ineffective for failing to call Leander Price as a witness to contradict the statements of police officers who testified for the State. The record refutes this claim as well. When trial counsel was examined on this issue, he stated that Price was in the Department of Corrections at the time of trial. As a convicted criminal, therefore, Price‘s testimony could have done more harm than good—if the jury questioned Price‘s credibility, it also may have questioned the credibility of Johnson‘s entire theory of defense. This was sufficient to allow the motion court to find that a reasonably competent counsel would refuse to call Price to the stand for reasons of trial strategy and thus defeat an ineffective assistance of counsel claim. We conclude that the court did not err in denying Johnson an evidentiary hearing on trial counsel‘s failure to call Leander Price.
Finally, Johnson arguеs that the definition of “reasonable doubt” in MAI-CR3d 302.04 improperly and unconstitutionally lowers the State‘s burden of proof. Because this issue was not preserved, he requests plain error review. This Court has consistently and repeatedly held that this instruction is constitutional. See State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995).
The judgments are affirmed.
All concur.
Ronald J. Stites, Kansas City, for respondents.
Before SMART, P.J., and KENNEDY and ULRICH, JJ.
SMART, Presiding Judge.
This appeal of a negligence action arose out of a robbery and assault which left three people badly injured in the early morning hours of December 7, 1986. Defendant George W. Miller & Co., the owner of townhouse apartments in Kansas City, appeals a verdict in favor of tenants for breach of a landlord‘s duty to provide security against criminal assaults. The case involves the issue of whether Missouri has abrogated the rule that landlords generally have no duty to provide tenants with security against criminal acts in the absence of “special circumstances” giving rise to that duty. Defendant contends on appeal that plaintiffs failed to make a submissible case of liability. Judgment reversed.
Defendant George W. Miller & Co., Inc. (“Miller“) owns some townhouse duplexes in mid-town Kansas City. At the time of the assault in question, Plaintiff Grace Kopoian resided in one of Miller‘s duplexes at 4505 Washington. Her son, H.D. Callicotte, and her friend, Jerry Mee, resided with her. At about 1:30 a.m. on December 7, 1986, Callicotte, a law student, returned home from a late night of studying for examinations.
It was raining as Mr. Callicotte parked his car on the street near the townhouse. Mr. Callicotte then hurried in the rain to the porch of his townhouse, carrying his books. He opened the screen door with his left hand and propped the screen door against his right shoulder while unlocking the townhouse door with his right hand. As he unlocked the door, Mr. Callicotte received a sudden and forceful blow to the back of the head.
The assault at 4505 Washington shared some characteristics with a similar incident which occurred earlier the same night in another area of town. In that case, a family named Breeding had returned home from an outing and pulled in their driveway. Mr. Breeding went to the porch to unlock the door so that he could then return to the car and help bring in the young children, who were sleeping. While Mr. Breeding was on his well-lighted porch, Releford came running across the property with his baseball bat poised for attack. Mrs. Breeding observed Releford and screamed to her husband, alerting him to Releford‘s impending attack. Mr. Breeding turned and dived at Releford. Although Breeding was larger than Releford, Releford prevailed. Breeding said that rather than try to run from Releford and risk getting hit from behind with the fat part of the bat, he tried to just keep “going at” Releford to try to knock the bat out of his hands. He was hit several times in the arms and hands. Releford then hit him solidly in the head, knocking him unconscious. Releford rolled the victim over, extracted his wallet, and rаn away. About an hour later, Releford perpetrated the attack at Ms. Kopoian‘s residence.
In this case, Kopoian, Mee and Callicotte sued the Defendant Miller, their landlord, on a theory of premises liability. Plaintiffs submitted their case on three allegedly dangerous conditions in the premises: a defective porch light, a shrub on the north side of the porch that allegedly had been allowed to grow too tall, and the absence of a deadbolt lock on the door to the townhouse.2 Plaintiffs contended that Miller retained control over the porch light, the shrub, and the installation of door locks. The conditions alleged, argued plaintiffs, were dangerous in that they created a reasonably foreseeable risk of danger of criminal assault, and were a joint and concurring cause, along with Releford‘s actions, of plaintiffs’ injuries. The theories related to the bush and the light were that their condition may have prevented Callicotte from seeing Releford as the attacker approached, and that they therefore may have denied Callicotte an opportunity to overcome Releford. The theory related to the lock was that if the door had been fitted with a deadbolt lock it would have taken Callicotte longer to get the door unlocked, with the result that the attack would have occurred оnly on the porch and would not have moved to the interior of the apartment. This, they say, would have protected Mr.
Mr. Mee, a victim of very serious injuries, took his own life while the case was pending. Ms. Kopoian was named personal representative for Mr. Mee, and she was substituted as the named plaintiff for Mr. Mee on April 23, 1991. The case was tried in February, 1993. At the conclusion of jury deliberations, the jurors found in favor of each plaintiff and awarded Ms. Kopoian $150,000.00 in damages, the estate of Jerry Mee $400,000.00 in damages, and Mr. Callicotte $75,000.00. Defendant‘s motion for judgment notwithstanding the verdict was denied. Defendant did not file a motion for new trial. This appeal follows.
Defendant raises several issues on appeal. First, defendant contends that the court erred in failing to direct a verdict for the defendant for the reason that no evidence was introduced which could give rise to a duty on the part of defendant to protect plaintiffs from the random criminal attacks of a person such as Releford. Defendant also complains that plaintiffs failed to show that the conditions complained of were causally related to the injuries sustained by plaintiffs.3 We have concerns about both causation and duty in this case, but because duty is the more fundamental issue, for the court we devote our analysis to that issue.
Duty to Provide Security
The verdict directing instruction submitted to the jury the issue of whether, by virtue of the state of the bush near the front door (taller than two feet) and of the porch light (defective) and of the door (lacking a deadbolt), the premises were not reasonably safe. Thus, the jury was asked to decide whether a legal duty existed by judging whether the premises were “reasonably safe.”
Traditionally, landlords have been under no duty to provide security for tenants from the criminal activities of third persons. An exception to this rule exists, however, in the case where a duty has been found to have arisen from particular circumstances, such as the landlord‘s knowledge of previous violent crimes on the landlord‘s premises. Advance Rental Centers, Inc. v. Brown, 729 S.W.2d 644 (Mo.App.1987). Other special circumstances giving rise to a duty may consist of those that exist when the misfeasance of the landlord creates a circumstance of extraordinary danger or enhances the risk of the tenant‘s victimization beyond the risk of crime victimization generally. Annotation, Private Person‘s Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619 (1966). It is held that outside of special circumstances, there is no duty to provide security guards, bars on windows, or exterior lighting, as a precaution against crime. Id. A study of the landlord‘s duty to light common areas, for instance, reveals that historically, the landlord has had no general duty to illuminate common areas. Weinel v. Hesse, 174 S.W.2d 903 (Mo.App.1943). A duty to illuminate common areas may arise out of the fact that illumination is necessary to prevent injury where there is a physical defect in the premises, such as a broken step. Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752 (1936). It has also been held that, where a landlord voluntarily assumes a duty of providing lighting in common areas, the duty must be performed with reasonable care. Sherman v. Bobrecker, 322 S.W.2d 898 (Mo.1959) (landlord liable when tenant fell over child‘s bicycle in dark lobby of building). These cases have not, however, previously been applied to the prevention of crime. Generally, the courts have declined to hold that a landlord has a general duty to illuminate common areas for security purposes. See, e.g., Stanley v. Town Square Coop., 203 Mich.App. 143, 512 N.W.2d 51 (1993) (association not liable for injuries to visitor assaulted in poorly lit, unfenced parking lot); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994) (landlord not liable to tenant raped in apartment who contended landlord failed to pro-
The plaintiffs’ position in this case, reduced to its essence, is that the landlord‘s duty to provide security in a given case can be whatever the jury reasonably decides it should be, based upon evidence that the area under the landlord‘s control is not reasonably safe. Plaintiffs argue, in effect, that under present Missouri law, it is possible for a tenant victimized by crime to plead a cause of action by pleading that his injuries were caused or contributed to by the fact that something under the landlord‘s control was an unsafe condition. The landlord‘s negligence could consist of the failure to put bars on the windows, the failure to install an electric alarm system, the failure to provide a security guard, or the failure to promptly replace a burned-out bulb on the porch light. Liability may be found, they argue, as long as it appears in retrospect that such conditions were not reasonably safe. The plaintiffs tried this case as though one may make a submissible case against a landlord by presenting the testimony of a security consultant setting forth the view that some security feature likely would have had some impact in deterring or avoiding a criminal assault, and that the landlord should reasonably have provided this security feature. This approach assumes a special relationship between landlord and tenant based merely on the landlord-tenant status, as though there is something inherent in the relationship which requires that the landlord take general responsibility for security.
Some courts have been willing, in fact, to go this direction, imposing a generalized duty to provide security on landlords. E.g., Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980) (adopting view that the landlord‘s implied warranty of habitability obligates the landlord to furnish “reasonable safeguards” for the protection of tenants from criminal activity); Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 485 (D.C.Cir.1970) (treating a landlord as obligated “to provide those protective measures which are within his reasonable capacity“). The practical effect of adopting the notion that the landlord has a general duty to provide security is to make the issue of duty a jury issue rather than an issue of law for the court. Plaintiffs, accordingly, desire that the court treat the issue of duty as an issue of fact for the jury.4
In Missouri, however, a landlord‘s duty of security to a tenant remains a matter of law. Aaron v. Havens, 758 S.W.2d 446, 447 (Mo. banc 1988); Advance Rental Centers, Inc. v. Brown, 729 S.W.2d 644, 646 (Mo.App.1987) (“In the final analysis the matter [of duty] is one of policy“; citing Meadows v. Friedman R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983)). Other courts also find the issue of duty to be a matter of law. E.g., Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994); Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 156 (Minn.App.1993); C.S. v. Sophir, 220 Neb. 51, 368 N.W.2d 444 (1985); Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103, 104 (1993); Whittaker v. Saraceno, 418 Mass. 196, 635 N.E.2d 1185, 1187 (1994). “[Duty] is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.” W. Page Keeton, Prosser and Keeton on Torts 236 (5th ed. 1984).
An analysis of the issue of duty begins with an examination of the source of the duty. We could look first to the question of
In cases where there is no statutory duty imposed with regard to the particular allegation of dangerous condition, we must look to the case law to see if the law has recognized a duty. This brings us to the decision of the Missouri Supreme Court in Aaron v. Havens, 758 S.W.2d at 446, relied upon by plaintiffs. In Aaron, a landlord installed a fire escape which was allegedly installed in such a way as to unreasonably and dangerously allow easy access to the fire escape by people on the ground. The result was that an intruder allegedly gained easy access to a tenant‘s apartment. It was held in Aaron that such an action by the landlord may by itself (without any showing of prior criminal assaults on the premises) constitute a breach of a duty to a tenant. In Aaron, the court rejected the argument of the landlord that it was necessary for plaintiff to plead and prove that there had been prior criminal assaults on the premises. The court noted that the landlord was aware of a prior unlawful entry to the apartment by a burglar who entered from the balcony. The court said the danger was from “unauthorized entry.” “If a burglar may enter, so may a rapist.”5 Id. at 448. Aaron is a case in which the active negligence of the landlord had created for the tenant a substantially enhanced risk of harm from criminal activities. Aaron did not involve the failure to install bars on the windows or the failure to
replace a burned-out light bulb. Nor, as the opinion notes, did Aaron involve an “entry hall” or an “area surrounding” the apartment. Id. at 448, n. 3. It involved active negligence in which the landlord allegedly actually created risks which would not otherwise have existed by causing the fire escape to be constructed in such a way to make the tenant more vulnerable to attack from a person unlawfully entering the apartment than she would have been otherwise.
Plaintiffs nevertheless interpret Aaron as changing previous rules so substantially that as a result of Aaron, they argue, landlords have a generalized duty to make common premises safe from generally foreseeable dangers, such as the threat of crime. We submit, however, that Aaron cannot reasonably be understood as creating a submissible case against a landlord any time a criminal assault occurs after an attackеr gained access through a common area under the control of the landlord. The petition in Aaron would not, apparently, have been found to state a cause of action if, instead of involving an easily accessible fire escape, the case had involved only a broken window latch. Liability would apply in a window latch case only if there were some special circumstances causing the landlord to have a security duty with regard to the window latch. We derive this from the following statement in Aaron, 758 S.W.2d at 448, where the court discussed the allegation of liability based upon the failure to provide a lock on the window: “[t]he charges about the window lock provoke the inquiry as to whether the landlord has a duty to the tenant to repair the lock and whether the tenant could make the repairs herself.” Also, we note that, as to allegations in the petition concerning an alleged failure to lock the door to a six foot fence around the back yard, the court stated it was not “prepared to endorse an abstract proposition that a landlord is required to provide gates or fences to keep intruders out of the yard....” As a result, we read Aaron as holding that the landlord‘s allegedly reckless enhancement of the ordinary risks of criminal assault consti-
In Stubbs v. Panek, 829 S.W.2d 544 (Mo.App.1992), a case decided by this court since Aaron, a landlord was held liable for the abduction of a child by a third party of a child at night while the family members slept. The criminals gained silent access through a defective door lock. In Stubbs, it was alleged that the lack of a functioning lock was a dangerous condition under the landlord‘s control. There was evidence that the tenant had repeatedly asked the landlord to install a functioning lock, with no success, and that the tenant was specifically forbidden by the landlord to repair the door to make it more secure. The landlord‘s alleged indifference to the tenant‘s security concerns was, without question, unconscionable. The landlord‘s recalcitrance continued for a period of time, setting the stage for an unlawful entry by persons apparently having notice of the condition of the lock. As a result, the tenants’ daughter was abducted, sexually assaulted and murdered. This court reversed a trial court summary judgment ruling in favor of the defendant, holding that plaintiffs had made a submissible case. In Stubbs, the landlord‘s duty could be found to arise from special circumstances—the obvious special vulnerability of the tenant combined with the landlord‘s obstinate refusal to allow the tenant to repair the lock. See Braitman v. Overlook Terrace Corp., 68 N.J. 368, 346 A.2d 76, 83-84 (1975) (where the court found in a defective lock case that there was an “enhanced risk” due to the defective lock). Moreover, the criminal act perpetrated was exactly the kind of crime feared by the tenant—and foreseeable to the landlord—an unlawful entrance by persons aware of the defective lock who gained entrance precisely because of the defective lock. Stubbs is a decision involving a duty based on sound policy considerations. If locks have any purpose at all beyond security, we are not aware of such purpose. It is certainly no surprise to landlords that they have a legal duty to respond to the tenant‘s request for the provision of a functioning door lock. And thе duty relates specifically to the foreseeability of a silent, unlawful entry. Any landlord taking the approach of the landlord in Stubbs should know that it is engaged in a serious flirtation with liability. The duty arises not out of the mere fact that there is a landlord-tenant relationship, but out of the common sense of the special circumstances that the landlord kept exclusive control of this security matter, and unreasonably left the tenant exposed to the danger of a silent, unlawful entry.
Miller‘s Duty Analyzed
a. The Porch Light
In the case at hand, the testimony shows that there was a defect in the operation of the light from Ms. Kopoian‘s apartment. Apparently, the problem with the light was that it could be turned off from the neighboring apartment without the knowledge of the occupants of Ms. Kopoian‘s apartment. Unless the switch was on in the neighbor‘s apartment, the switch in Ms. Kopoian‘s apartment was ineffectual to activate the light. The evidence tended to show that the light was not on at the time of the assault, although Ms. Kopoian had turned the switch on. The plaintiffs testified that it was not until after the fateful night of December 7, 1986, that they discovered why the light did not always function properly. Ms. Kopoian admitted in portions of her deposition received at trial that she did not even know
A: I told John about the light not working, and John—the next time I talked to him, I asked him about the light, and John said he had tried to fix it.
Q: And did he indicate whether or not he had been successful?
A: No, he said he had not been successful.
Mr. Callicotte offered no testimony as to any further comments he may have made to Mr. Howard concerning the light. The record provides us no information as to the date of this discussion between Mr. Callicotte and the maintenance man—as to whether it was two days before the attack on Mr. Callicotte, or three months before.7 There was no testimony to the effect that Callicotte expressed concern about the safety aspects of the malfunctioning light (as opposed to the concerns related to convenience),8 or that Callicotte asked that the light repair be followed up after Mr. Howard‘s initial effort.
Ms. Kopoian‘s testimony indicated that the porch light switch controlled by Mr. Lawson, her neighbor, was turned on practically every night, illuminating the porch until well into
the early morning hours. The fact that Mr. Lawson сame home early on the night of the attack, and turned off his light switch, happened to be, according to Ms. Kopoian, “a first.” Mr. Howard, the maintenance man, and the property manager, both denied any memory of ever being informed before the night of the attack that there was any problem with the light. But even assuming, by disregarding all contrary testimony and viewing the evidence in the light most favorable to the verdict, that the evidence allows an inference that the landlord had notice that the light was defective, we cannot find evidence that the landlord had notice that any security problem existed with regard to the likelihood of an attack on the porch such as occurred in this case. There was evidence that the landlord knew that exterior lighting was desirable, both for security and convenience, and had considered installing more exterior lighting.9 However, such evidence does not establish a duty on the part of the landlord to ensure the effective functioning of the porch light for security purposes as against this kind of attack.
If there had been a duty in this case to guard against this kind of attack, such a duty would have required, at a minimum, an armed security guard keeping surveillance. A better porch light is, for all practical purposes, irrelevant to an attack of this kind. There was no contention at trial that the lack of lighting on the porch caused Callicotte to take longer to enter the apartment than he otherwise would have. And Callicotte evidently noticed no delay in attempting to enter, because when he was interviewed by the police after the assault, he informed them
b. The Height of the Bush
Plaintiffs’ submission as to the bush was based on the argument that the height of the bush near the front door was a dangerous condition which contributed to cause the injuries to plaintiffs. Plaintiffs contend that the bush may have obscured Callicotte‘s view and hindered his ability to get the jump on Releford. If Callicotte had seen Releford sooner, goes the argument, Callicotte would have overcome Releford and the injuries would have been avoided. Plaintiffs offered expert testimony аt trial that such bushes ideally should be no taller than two feet high. The testimony was that at the time of the assault the top of the bush was between four and five feet above the ground. The suggestion was that the bush hindered Callicotte‘s view of Releford as Releford approached while Callicotte was unlocking the door to the apartment. Staying with the issue of duty, however, we again examine the source of the alleged duty. Duty is not determined by the jury on the basis of the testimony of a security expert, although security experts may be helpful to the courts in determining the scope of duty.13
Under our analysis, the bush theory of liability suffers the same fate as the defective light theory of liability in this case—there is no special circumstance, either related to the bush or otherwise, creating a duty to provide security against a random assault such as this one. There was no evidence of any prior assaults, random or otherwise, on the premises, much less any assaults facilitated by overgrown bushes. Also, a glance at any of the photographs of the porch received at trial reveals that the bush could not be said to constitute an “invitation” to muggers in such a way as to substantially enhance the risk of
c. The Lack of the Deadbolt Lock
Plaintiffs also submitted on a theory that a dangerous condition existed because there was no deadbolt lock on the door. Plaintiffs contend that if there had been a deadbolt on the door, Callicotte would not have succeeded in opening the door at the moment he was struck on the head. Thus, they argue, the assault would have been contained on the porch and would not have entered into the apartment. This, they say, would have saved Kopoian and Mee from injury. Plaintiffs presented evidence that they had asked the property manager for a deadbolt, but that the manager failed to have one installed within a reasonable time. Unlike Callicotte‘s concern about having more lighting in order to be able to locate his cat more easily, plaintiffs’ concerns about a deadbolt were obviously related to security—they wished to try to hinder burglars from gaining access to the apartment. The difference between this case and Stubbs, however, argues defendant Miller, is that in this case the lock was functional. Further, Miller argues, the nature of the lock had nothing to do with the kind of attack on Callicotte which occurred in this case. Releford‘s attack could not reasonably be considered to be related to the circumstances of the lock. The deadbolt, of course, is a burglary protection device. It is not designed to keep out of the apartment a
hapless tenant who is being assaulted on the porch. The evidence suggests that Releford, in his berserk mania, had no interest in gaining access to the interior of the apartment, because, once inside, his focus remained on getting Callicotte‘s wallet. It was apparently merely coincidental that Callicotte was struck from behind just as he unlocked the door.15 Releford did not gain access by virtue of a defective lock. If this case had involved an assault by a burglar who had silently gained access to the house through a defective lock, plaintiffs would have made a submissible case under Stubbs. However, we are persuaded by defendant‘s arguments that plaintiffs have failed to show that the landlord had a security duty to provide a deadbolt lock which encompassed the duty to prevent random assaults like the one perpetrated by Releford in this case.
Duty and Proximate Cause
In order to impose liability on the landlord, it is necessary that there be some fault attributable to the landlord for the criminal assault. There must be evidence that the landlord‘s negligence caused a condition of danger consisting of something greater than “that presented out on the street and in the neighborhood generally.” Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 169 (Minn.1989). Crime is a possibility and a threat at all times and in practically every place. Meadows, 655 S.W.2d at 721. In Aaron, the landlord allegedly created a condition (an easily accessible fire escape) which would uniquely attract criminal activity and increase the vulnerability of the tenant. Similarly, in Stubbs, the landlord‘s unreasonable refusal to repair the lock and to allow the tenant to repair the lock created a circumstance of special vulnerability for the tenant, requiring that the tenant sleep in a house to which silent access could be gained especially easy. Locks may not keep people out, but they generally make it more difficult for burglars to gain access efficiently and
In this case, by contrast, the evidence did not show that the risk of being attacked by Releford was increased by any action or failure of the landlord. As was stated in Stanley v. Town Square Coop., 512 N.W.2d at 55:
The risk of being criminally assaulted in the middle of the night in a poorly lit, unfenced parking lot in the Detroit metropolitan area is real and certainly can be anticipated. However, that risk is as obvious and apparent to an invitee as it is to the landowner. In short, the danger to which invitees are exposed by a parking lot is the same danger to which they are exposed in the community at large. The landlord has done nothing to create a condition conducive to criminal assaults.
In Erickson, 447 N.W.2d at 169, the court noted the victim‘s lack of ability in that case to claim that the landlord offered a “particular focus or unique opportunity for criminals and their criminal activities.” “In approaching the problem, the authorities have generally recognized that the duty is not determined by the foreseeability of a criminal act, but upon whether a duty exists to take measures to guard against it.” Meadows, 655 S.W.2d at 721. In other words, it is not the foreseeability of crime in general, but the existence of special circumstances, which gives rise to the duty to provide security.
We agree with defendant Miller that, even viewing the evidence in the light most favor-able to the verdict, plaintiffs could not be said to have made a submissible case that any special circumstances created a duty on the part of the landlord to protect against a criminal assault such as the one perpetrated by Releford.
While duty and causation both involve foreseeability, duty is an issue of law, and causation is generally a matter for the jury. Juries are not instructed in, nor do they engage in, consideration of the policy matters and the precedent which go into the concept of duty. W. Page Keeton, Prosser and Keeton on Torts 236 (5th ed. 1984). With joint and several liability (so that the landlord can be made to pay the entire damage verdict even if the landlord was found one percent at fault and the criminal ninety-nine percent at fault), and with the cost of compensating muggings, rapes, and murders being extremely high, the issue of duty is full of social and economic consequences. Because the threat of crime is ever present, and because a landlord can almost always do more to provide security for tenants, it is not difficult to find in any case in which an assault has occurred that more security guards and more locked gates and more barred windows would have prevented the assault. If the landlord‘s liability can be premised on a nebulous responsibility arising out of the general foreseeability of crime, landlords will, in effect, stand in the position of guarantors of the safety and security of the person and property of tenants.
Conclusion
There is no comfort in reversing this judgment, which would have provided compensation to injured victims of a vicious assault. Plaintiffs, however, simply have not shown in this case the existence of a duty on the part of Miller to protect the plaintiffs from the particular attack which occurred in this case. The trial court erred in denying defendant‘s motion for a directed verdict. For the foregoing reasons, the judgment is in all respects reversed.
ULRICH, J., concurs.
KENNEDY, J., dissents.
I cannot think my colleagues have come out right in this case. I dissent.
As an appendix hereto, I attach my own opinion, which my colleagues did not accept. It explains my thinking about the case. I would affirm the judgments.
If, however, the plaintiffs’ judgments are to be reversed, we should remand to the trial court to allow proof of the prevalence of crime in the vicinity such as to place the landlord upon notice of the danger of criminal assaults—notice which the majority opinion says was absent. Thе following evidence was offered by plaintiffs and excluded by the trial court. If admitted, it would have shown the landlord‘s notice of the prevalence of crime in the immediate vicinity of this assault:
1. In addition to the subject row townhomes, defendant controlled or owned two other townhouse properties on Broadway one-half block away, where a burglary had occurred, and a large apartment complex one-half block south at the foot of Washington, where Mee and Kopoian originally lived, in which there had been four robberies, three burglaries, and an assault prior to the incident at issue, and also owned another large apartment building one block west.
2. Directly adjacent to these properties or in the area immediately surrounding them, 10 robberies, 11 burglaries, and 8 assaults occurred, all within the three years preceding this attack. As early as 1981, tenants in the Miller Apartment complex one-half block away had served management with a petition demanding better lighting, locks and deadbolt locks because of “robbers, muggers and the like.” Adequate night lighting was specifically demanded. A letter to the property manager from tenants demanding better locks was offered. In 1982, defendant contracted with off-duty police officers for foot patrol at its building one-half block way.
3. A property management survey performed in May, 1984 on a Millеr property just around the corner from plaintiffs’ townhouse stated “a number of break-ins and muggings have occurred in the month of May ... the police have been contacted yet the problem still exists.” The foot patrol mentioned above recommended in late 1984 to Lilly Womack, the resident manager, that Miller increase lighting and trim bushes one-half block away from the Releford assault because it was so dark.
4. Another document suggested that foot patrol was at one time hired for the townhouses in which plaintiffs lived. A flier from the Westport-Plaza Homes Association was delivered to the resident manager‘s address, asking for help because assaults in the area were up 225%. Plaintiffs’ expert Cole authenticated the crime reports and his report was offered.
5. Grace Kopoian‘s deposition testimony that she spoke with the resident manager and maintenance man on the subject of increasing crime, as well as her testimony regarding the witnessing and reporting of an assault one-half block away were excluded. Her testimony that the maintenance man reported a burglary around the corner was excluded. Testimony that defendant hired a private guard service the day after the incident was offered to tie into their 1984 acknowledgement that calling the police was doing nothing.
6. An Offer of Proof was made regarding a conversation between the resident manager and Jackie Cook, which occurred in the 1984-1985 time frame in which Ms. Womack indicated they were aware of the burglary from the Cooks’ garage and another one across the street, and that they had hired a security company who would be going around at night watching the premises.
7. Plaintiff offered the testimony of the neighbor across the street, Eldon Cook, that, in response to his report of a burglary, the resident manager had told him a security service had been hired and they had shined a light in his window in 1985. His testimony was also offered to prove there had been a burglary up the street and the wheels stolen from a car by the townhouses.
8. Plaintiffs offered testimony from the president of Westport Plaza Neighborhood
In Moss v. National Super Markets, 781 S.W.2d 784, 786 (Mo. banc 1989), the Supreme Court reversed a judgment for plaintiff, on the ground plaintiff had failed to make a submissible case. It remanded the case to allow the plaintiff to present evidence which plaintiff had not offered at trial. Plaintiffs’ position in this case is stronger than the plaintiff‘s position in Moss, because here the plaintiffs offered the evidence at trial, and it was excluded. The following language in Moss is applicable to this case: “Numerous cases hold that an appellate court should reverse a plaintiff‘s verdict without remand only if persuaded that the plaintiff could not make a submissible case on retrial. The preference is for reversal and remand.... Here, ... the plaintiff was the respondent on appeal. She was not obliged to anticipate reversal, or to raise conditional points....”
I would affirm. But if the plaintiffs’ judgment is to be reversed, it should be remanded for a new trial on the issue of liability only.
APPENDIX TO DISSENT
Defendant George W. Miller & Company, Inc., appeals from judgments against it upon jury verdicts in favor of the respective plaintiffs, growing out of a criminal assault at the townhome residence occupied by the plaintiffs as defendant‘s tenants. The verdicts and judgments were: for plaintiff Callicotte, $75,000; for plaintiff Grace Kopoian, $150,000; and for the estate of Jerry Mee, $400,000.
Plaintiff Harry Callicotte and his mother (plaintiff Grace Kopoian) and her fiancee (plaintiff Jerry Mee) lived together in a townhouse at 4507 Washington in Kansas City. The townhouse was one of ten located in a row along the east side of Washington Street. The townhomes were owned by defendant George W. Miller & Co., which also owned ten townhomes across Washington Street, on the west side of the street. Plaintiffs’ unit and 4505 Washington shared a single front porch, from which entry was made into both by their respective front doors.
Callicotte, a law student, was returning home in his car at 1:30 a.m. on December 7. He parked his car at the curb in front of the house. It was raining. Carrying a stack of books in his arms, he got out of his car and hurried to the door of his house. As he was standing on the small porch, or stoop, unlocking the single lock on the door, a robber came up behind him and struck him on the head with a baseball bat.
Callicotte fell against the front door, which sprang open. He fell inside the entryway of the house. The robber struck him again inside the hall, breaking his arms raised to defend against the attack with the bat.
Callicotte‘s mother, plaintiff Grace Kopoian, and her fiancee, Jerry Mee, who were inside the house, came to Callicotte‘s aid. The robber attacked them, too, with the baseball bat, injuring both of them. He stole Callicotte‘s wallet and fled.
The robber was apprehended and he confessed. He had been seeking money for crack cocaine. He had followed plaintiff Callicotte to his home. As Callicotte arrived home, the robber parked his car in a driveway down the street and north of plaintiffs’ residence, his lights off. Armed with a baseball bat, he came across the narrow (from sidewalk to porch) lawn in front of plaintiffs’ residencе and overtook Callicotte on his porch.
Plaintiff Jerry Mee, after he had filed suit on December 4, 1990, committed suicide on February 6, 1991. Plaintiff Kopoian was appointed by the probate court as Mee‘s personal representative, and she was substituted for Mee as a plaintiff.
Upon trial of the case, the submissions of negligence, on behalf of Callicotte, were “either, the bush near the porch was taller than
It should be noted at this point that the porch and the lawn, where the bush was located, were common areas, under the control of the landlord. The condition of the light, and the absence of the deadbolt, were also under the control of the landlord. Repairs to the premises were the duty of the landlord.
Had defendant filed a motion for a new trial, and on appeal had asked for reversal and remand for a new trial, it would be our duty to examine whether the evidence supported each of the three submissions. MAI 1.02, Committee Comment (1991). If one or more of the submissions were supported by the evidence, we still would remand for a new trial if we found any one or more of the three were unsupported by the evidence. See, e.g., Bostic by Bostic v. Bill Dillard Shows, 828 S.W.2d 922, 927 (Mo.App.1992). Defendant, however, did not file a motion for a new trial, but only a motion for judgment notwithstanding the verdict. On appeal it has asked for outright reversal, not for remand for a new trial. We will not reverse outright if any one of the three submissions was supported by the evidence.
We have determined, as we explain hereinafter, that the defective light submission was supported by the evidence, and we do not consider the absence of deadbolt submission or the overheight bush submission.
SUBMISSIBILITY
Miller attacks the submissibility of plaintiffs’ case at three points. It says, first, that Miller had no duty to protect plaintiffs from criminal attacks of third persons. It says, second, if Miller did have such a duty, Miller‘s acts and omissions, charged by plaintiffs to have been negligent, did not fall below the standard of reasonable care. It says, third, that any such acts or omissions, if negligent, were not the proximate cause of plaintiffs’ injuries.
Defendant‘s argument is that one is liable for another‘s injuries at the hands of a third-party criminal only in two instances. One such instance is where there is a special relationship between the defendant and plaintiff, in which plaintiff has relied upon the defendant to provide safety. Faheen v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App.1987). Such relationships include innkeeper-guest, school-student, and employer-employee. Keenan v. Miriam Found., 784 S.W.2d 298, 302 (Mo.App.1990). The relationship of landlord-tenant is no such relationship, Miller says, citing Advance Rental Ctrs. v. Brown, 729 S.W.2d 644, 646 (Mo.App.1987). The other situation where defendant may be liable for injuries suffered at the hands of a third-party criminal, says Miller, is where there have been other crimes which would place the landlord on notice that the tenant was in danger of a violent criminal attack. In order to place the landlord on notice of the danger of violent criminal attacks, according to Miller‘s argument, the other crimes must have been violent, numerous, recent, on the premises, and of a similar nature to the attack upon the plaintiff. It cites Faheen, 734 S.W.2d at 273-74; and Conroy v. Solon Gershman, Inc., 767 S.W.2d 381 (Mo.App.1989). Plaintiffs, Miller says, show neither a special relationship between themselves and Miller, nor the other crimes which would place Miller upon notice of plaintiffs’ danger from a criminal‘s violent attack.
Our case is ruled, however, by Aaron v. Havens, 758 S.W.2d 446 (Mo.1988) and by Stubbs v. Panek, 829 S.W.2d 544 (Mo.App.1992). In those cases, the respective landlords made the same arguments as Miller makes in the present case. Our Supreme Court in Aaron rejected the landlord‘s formulaic approach in that case. To quote from the opinion: “The owner of an apartment building has a recognized duty to use due care to make common premises safe, as against foreseeable risks....” Aaron, 758 S.W.2d at 447-48.
DEFECTIVE PORCH LIGHT1
There was evidence which supported the submission of the defective light as a ground of negligence. The porch was common to plaintiffs’ residence and the adjoining residence, in the same building, occupied by Dan Lawson. There was a light on the porch, but it was not on at 1:30 a.m. on December 7, 1986, when Callicotte was attacked and robbed. The light was controlled by switches in plaintiffs’ residence and the other residence. The light could be turned on from plaintiffs’ residence, but it could be overridden by the switch in the other residence. On the evening before the assault, Mrs. Kopoian had turned on the porch light, but Mr. Lawson had turned it off later. The light was off and the porch was dark when Callicotte came home and was assaulted.
Callicotte before the assault had asked that the light be fixed. Miller‘s maintenance man had tried to fix it, but he told Callicotte he was unable to do so because of the wiring. There is no evidence that Miller called an electrician to fix the light, although Miller had an electrician “on call,” and electrical repairs were given priority treatment.
There was evidence that Miller was aware of the importance of lighting as a security measure, as evidenced by additional lighting which it had installed behind the buildings, and which it had considered but had not done because of wiring problems. The importance of lighting had also been discussed in a property managеment course which had been attended by Miller‘s property manager.
Plaintiffs’ experts testified to the need for adequate lighting as a security measure. They testified that lighting had the dual effect of deterring crime, and also giving the victim an opportunity to see the approach of an attacker and to defend himself or to flee. The jury could believe from the evidence that Miller was negligent in failing to repair the light, so that the porch light could be controlled by the occupants of plaintiffs’ residence.
The jury could also believe from the evidence that, if the porch and the surrounding area had been lighted, Callicotte would have seen the approach of the robber in time to defend himself. Callicotte was young and strong, and schooled in hand-to-hand combat, and could very likely have overpowered the robber. The darkness gave the robber the advantage of surprise. Callicotte saw only a shadow over his left shoulder in the instant before he was struck on the head with a baseball bat.
OTHER CRIMES
Defendant argues that there was no proof of other similar crimes on the premises, and that, in the absence of such proof, it had no duty to its tenants to take the security measures which plaintiffs say were lacking. The occurrence of other crimes bears upon the foreseeability of criminal attacks, and landlord‘s duty to take reаsonable preventive measures.
The plaintiffs showed only one other crime. This was in April, 1986, when a burglar came through a back window, while the occupant was sleeping, and stole her handgun. This occurred in another of the Washington Gardens townhomes, and the jury could infer that Miller had notice thereof. Plaintiffs offered to prove a number of other crimes in the general vicinity (the Plaza-Westport
On the issue of notice, we have the evidence of the single unauthorized entry which was allowed to be proved. We have evidence of security measures and precautions which Miller had taken, indicative of its awareness of the danger of criminal conduct. There is evidence that security was a matter of discussion at property management forums. These two items of proof simply add suppоrt to the dictum in Meadows v. Friedman R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983): “In a practical sense, crime (violent or non-violent) is regrettably foreseeable in today‘s society any place, any time.” Miller can hardly be heard to say that in a mid-city urban area, where it had a number of rental units, and where security precautions had been a matter of concern both to residents and to Miller personnel, it was unaware of the prevalence of crime.
The heightened awareness of crime, on the part of landlord and tenant alike, increased the foreseeability of plaintiffs’ injuries. It placed upon the landlord a more urgent duty to take such protective measures as were within the area of his responsibility. This area of responsibility, as we have noted, included the common areas, and included the repairs and maintenance over which he had retained control. The precautions required of the landlord by the standard of reasonableness may vary from one place to another, but that is for the jury to resolve, under proper instructions. We are not dealing here with the violent crimes exception, noted
in Faheen, to the general rule that landlords are not liable for assaults upon their tenants by third persons. Proof of other violent crimes is not essential in a case like the present one, according to the holding of Aaron.
PROXIMATE CAUSE
Allowing for present purposes that it was negligent in the particulars submitted, Miller argues that such negligence was not the proximate cause of plaintiffs’ injuries. It is speculation, Miller argues, to say that its negligent acts and omissions, if they were in fact negligent, were “substantial factors”2 in the injuries to the plaintiffs. If Miller had cut down the bush to 24 inches in height, if it had fixed the light, the robber‘s assault would still have probably occurred in the same way. And if it had installed the deadbolt, the time it took Callicotte to unlock the second lock would make him more vulnerable to attack on the porch. The safety of the people inside would have been purchased at the cost of increased risk to the person outside.
As we are taught in Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852 (Mo. banc 1993), there is the threshold requirement that the proof show prima facie that the injury would not have happened “but for” the negligence of the defendant. As Judge Thomas said in Callahan: “Some lawyers and judges have come to look upon the ‘but for’ test as a particularly onerous and difficult test for causation. Nothing could be further from the truth. ‘But for’ is an absolute minimum for causation because it is merely causation in fact. Any attempt to find liability absent actual causation is an attempt to connect the defendant with an inquiry or event that the defendant had nothing to do with. Mere logic and common sense dictates there be some causal relationship between the defendant‘s conduct and the injury or event for which damages аre sought.” We take it that Callahan did not do away with the “substantial factor” test; that case simply shows that both criteria are
The evidence in this case survives both tests. The jury could have believed in this case, that, “but for” the defendant‘s negligence in failing to repair the light, the assailant would have had the opportunity to defend himself against the attack, or to flee. (There was evidence to the contrary, which was argued to the jury. The jury rejected that position. The question before us, of course, is only whether there was evidence to support the jury‘s verdict.) They could have believed that defendant‘s negligence in failing to repair the light was a “substantial factor” in the plaintiffs’ injuries.
The following language (untouched by the overruling decision of Callahan) from Jackson v. Ray Kruse Construction Co., Inc., 708 S.W.2d 664, 667 (Mo. banc 1986), is appropriate here:
“This case would be characterized by Professor Wright as one of ‘doubtful’ causation, akin to a case involving a public swimming pool in which a child drowns while the lifeguard is absent. It is extremely difficult to prove that the drowning would not have occurred if the lifeguard had been present, but it would certainly be reasonable for a jury to conclude that the presence of a lifeguard would make the chances of rescue ‘more likely than not.’ Professоr Wright argues that no more should be required and his view has substantial support. There are obvious difficulties in this case in setting up a counterfactual situation which definitively projects the sequence of events under the assumption that a safety bump had been in place. Striving for certainty is a tour de force. The jury must deal in terms of probabilities.” Id. at 667.
Proximate cause is assessed by viewing the event after the fact. Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App.1991). If after the fact, the injuries are rationally traceable to the act of negligence, the jury may find the proximate cause link between the negligence and the injury, even though the injury might have occurred in an unexpected and an unforeseen way. Id. at 876.
We hold that the evidence made a submissible case of proximate causation.
MEE‘S PERSONAL INJURIES vs. WRONGFUL DEATH
Defendant George Miller & Co., as another reason it should have judgment against the Jerry Mee estate claim, says that, since Mee‘s personal representative claimed that Mee‘s death resulted from the injuries, Mee‘s cause of action did not survive to the personal representative under
If a person sustains injuries resulting in his death, the claim must be presented as a wrongful death claim under
Miller‘s position is that there was an issue whether Mee‘s death by suicide resulted from his injuries. That being the case, Miller says, it was incumbent upon the personal representative, in order to establish the survival of Mee‘s personal injuries claims, to plead, prove and submit to the jury the ques-
The judgments are affirmed.
NOTE: THE FOREGOING IS NOT THE OPINION OF THE COURT, BUT IS AN APPENDIX TO A DISSENT.
Gary BLACKWELL, Employee/Respondent, v. PURITAN-BENNETT CORPORATION and Hartford Insurance Company, Employer/Insurer/Appellants.
No. 66574.
Missouri Court of Appeals, Eastern District, Division Five.
March 31, 1995.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 1995. Application to Transfer Denied July 25, 1995.