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Missouri Supreme Court Reverses Trial Court, Finding Plaintiff Failed to Present Submissible Negligence Claim Under the "Known Third Person" Exception to the Third-Party Criminal Act Rule.

ABSTRACT: The Missouri Supreme Court has explained the boundaries of the “Known Third Person” exception to the general rule that businesses have no duty to protect invitees from the criminal acts of third persons.

The Missouri Supreme Court, in Harner v. Mercy Hospital Joplin, has clarified the evidence necessary to establish the “Known Third Person” exception to the general rule in Missouri that businesses have no duty to protect invitees from the criminal acts of third persons. Mercy appealed a trial court judgment after a verdict was entered for Steven Harner on his negligence claim alleging Mercy breached its duty to protect him from the criminal acts of a third person.  Harner was shot by Kayla Liska after Harner found her inside his unlocked vehicle parked in the Mercy parking lot.  Before the altercation, Liska had been in the lot for approximately 90 minutes.  She had twice approached another individual, but these encounters had not been reported to Mercy.  Liska also entered another unlocked vehicle and, when confronted by the vehicle owners (the Wooldridges), Liska exited the car and stole a case of medication.  The Wooldridges reported being robbed to Mercy security which, in turn, reported the incident to the police department.  The Wooldridges reported a “theft” to police, but confirmed Liska did not have a weapon, and did not yell at, threaten, or make any physical contact with them.  The police officer testified that no evidence “suggested Liska posed a threat to anyone at Mercy.” 

While the Wooldridges were inside the hospital speaking with security and police, Liska entered Harner’s vehicle.  The Mercy security dispatcher testified she failed to review surveillance video, as requested by police, and that such footage captured Liska exiting the Wooldridge vehicle and entering Harner’s vehicle.  The jury awarded damages of $1,500,000 to Harner for negligence, after assessing 75% fault to Mercy. 

Mercy asserted on appeal that the trial court erred in overruling its motion for judgment notwithstanding the verdict, contending that Harner presented insufficient evidence that Mercy owed a duty to protect Harner from Liska’s criminal act.  The Supreme Court explained Missouri precedent that businesses generally have no duty to protect invitees from the criminal acts of unknown third persons because such activities are rarely foreseeable.  A limited “known third person” exception to the general rule may apply, however, when a business “knows, or has reason to know, that a third party is harming or is about to harm an entrant.”  The Supreme Court clarified that this exception only applies 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.”  The Court summarized that the business must know or have reason to know “a specific third person is both (1) on its premises and (2) dangerous.” 

The Supreme Court explained that the issue on appeal boiled down to whether Mercy knew Liska was dangerous prior to the shooting such that a duty of care arose.  Viewing the evidence in the light most favorable to the verdict, the Court concluded that there existed no evidence that Liska had conducted herself in a dangerous or threatening manner.  The Court found that there was no evidence from which Mercy could have known Liska would become violent, as she had not engaged in any verbal or physical altercations on Mercy's premises.  There was no evidence Liska had or would likely use a gun prior to her use of Harner's unsecured and loaded pistol, which she found inside his unlocked vehicle.  From the Wooldridge report, Mercy merely knew Liska had, without force, entered an unlocked vehicle and fled as soon as she was encountered, taking medications from the vehicle.  The Supreme Court concluded it was not foreseeable under the facts and circumstances of the case that Liska would become violent or dangerous.  Conceding Liska had committed the crimes of breaking into vehicles and stealing property, the Court held that “not every crime renders it reasonably foreseeable that a person is dangerous” and that “the exception's focus on foreseeability would be lost if having knowledge of any previous criminal act of a known third person is sufficient to incur liability for any subsequent dangerous and criminal acts that person commits.”  The Court held that Liska’s actions prior to the shooting did not trigger the known third person exception to the general rule that businesses have no duty to protect invitees from the criminal acts of third parties.  The verdict for Plaintiff was reversed and the case was remanded to the trial court. 

To achieve the same result as Mercy Hospital, business owners and security providers need to understand the general law of negligence in the context of third-party criminal activities.  In the case of crimes committed by known third persons, particular attention should be paid to evidence of the person’s dangerousness and the character of the person’s prior criminal conduct.  As the Supreme Court clarified in Harner, not all criminal activity is alike, and a person’s commission of prior crimes does not necessarily render the person foreseeably dangerous.