When most people hear the words “premises liability,” they think of a wet grocery-store floor, an icy sidewalk, or a pothole in a parking lot.
But some premises liability cases involve something far more serious.
People can suffer catastrophic injuries—or lose their lives—because those responsible for a property failed to address a known or reasonably foreseeable danger. And sometimes that danger is not a broken stairway or defective railing.
Sometimes it is a violent crime.
Missouri courts have wrestled for decades with a difficult question: When can a business or property owner bear civil responsibility when a customer, tenant, or visitor is attacked by a criminal?
One of Missouri's most important cases on that question began with a Christmas shopping trip.
A Christmas Shopping Trip That Ended in Murder
On December 14, 1982, Gary and Donna Decker went Christmas shopping at a shopping center in north St. Louis County.
They never made it home.
After returning to their automobile in the shopping-center parking lot, the Deckers were abducted by two men. Both were subsequently murdered. Donna Decker was sexually assaulted before she was killed. Their bodies were left in a vacant field in East St. Louis.
Their surviving family members brought wrongful-death claims against businesses associated with the shopping center.
The family's claim was not that the businesses committed the murders. The question was whether those responsible for the premises knew enough about previous criminal activity to make a serious attack reasonably foreseeable—and, if so, whether reasonable security measures could have made a difference.
The family alleged failures to provide adequate security and warn customers about the danger. The evidence concerning the property included previous criminal incidents such as armed robberies, assaults, and purse snatchings.
The trial court granted summary judgment against the Deckers' family.
The Missouri Supreme Court reversed.
Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. banc 1988).
The decision established an important principle in Missouri premises-liability law: although a business is not an insurer against criminal conduct, circumstances can exist in which prior criminal activity creates a duty to take reasonable precautions to protect customers from foreseeable criminal attacks.
The Criminal Act Does Not Always End the Inquiry.
When someone is assaulted or killed, the most obvious person responsible is the criminal who committed the act.
But in a civil case, that may not be the end of the inquiry.
Consider two very different situations.
In the first, a completely unexpected crime occurs at a property with no meaningful history of similar trouble and no warning that an attack was likely.
In the second, a violent attack occurs at a property where management has received repeated warnings about robberies, assaults, broken locks, inadequate access controls, or other serious security problems.
The law does not necessarily treat those situations the same way.
In catastrophic-injury and wrongful-death litigation, a crucial question is often not simply what happened, but what was known before it happened.
A 12-Year-Old Girl at a Kansas City Shopping Mall
Fourteen years after Madden, the Missouri Supreme Court confronted another terrible case involving criminal violence on commercial property.
In L.A.C. v. Ward Parkway Shopping Center Co., 75 S.W.3d 247 (Mo. banc 2002), a 12-year-old girl alleged that she was raped at Ward Parkway Shopping Center in Kansas City.
She sued the mall's owners, operators and managers, as well as the company hired to provide security.
The defendants obtained summary judgment in the trial court.
The Missouri Supreme Court reversed.
The Court concluded that the evidence permitted a finding that the type of violent crime involved was sufficiently foreseeable to create a duty on the part of the owners and managers to exercise reasonable care to protect their business invitees. The case also presented separate issues concerning the obligations of the company hired to provide security.
Importantly, the Court did not say that every business experiencing prior crime must hire a certain number of security guards, install a particular camera system, or guarantee that another crime will never occur.
Businesses are not guarantors of their customers' safety.
The issue is whether reasonable precautions were required under the particular circumstances.
That distinction is critical.
Missouri's Business Premises Safety Act
In 2018, the Missouri legislature addressed the subject directly through the Business Premises Safety Act, §§ 537.785 and 537.787, RSMo.
For businesses covered by the Act, Missouri law generally provides that a business has no duty to guard against criminal or harmful acts unless it knows or has reason to know that such acts are occurring or are reasonably likely to occur in a particular area of the premises and sufficient time exists to prevent the crime or injury.
The statute also provides businesses with specified affirmative defenses, including circumstances in which reasonable security measures were implemented.
Missouri defines “reasonable security measures” by reference to what a reasonable owner in the particular industry would implement, taking into account the condition of the premises and the cost of the precautions.
The Act also contains important limitations. Its definition of “business,” for example, excludes commercial residential and lodging operations.
The details matter because these cases are intensely fact-specific.
The occurrence of a crime on someone's property does not, standing alone, establish civil liability.
But neither does the fact that an intentional criminal committed the immediate act necessarily insulate everyone else from responsibility.
A $3 Million St. Louis Jury Verdict
A more recent St. Louis County case illustrates the stakes.
The litigation arose from the 2016 shooting death of 26-year-old Jose Garcia Jr. at an apartment complex.
Garcia's parents sued entities associated with the apartment property. According to published reports concerning the case, the plaintiffs presented evidence involving the property's exterior doors and alleged that management knew locks sometimes were broken or defeated. The parties also disputed the significance of previous criminal activity at the property.
The defense argued that the property owners were not responsible for the conduct that resulted in Garcia's death and challenged whether previous criminal activity made the shooting sufficiently foreseeable.
The jury nevertheless returned a verdict for Garcia's parents.
Published reports described an award of $100,000 in compensatory damages, with 70% of fault attributed to Garcia, together with a $3 million punitive-damages award. The resulting reported judgment was approximately $3.03 million.
A jury verdict in one case does not determine the outcome of another. Nor should the Garcia verdict be read as establishing a general rule for apartment owners.
What it does demonstrate is that a homicide committed by a criminal can also raise serious questions about the conduct of those responsible for the property where the crime occurred.
What Should Be Investigated After a Serious Attack?
Serious inadequate-security cases often require an investigation that goes far beyond the police report documenting the crime.
The central question may be:
What did the people responsible for this property know before someone was seriously injured or killed?
Depending upon the circumstances, that investigation may include prior police calls and incident reports; previous robberies, assaults or shootings; complaints from tenants, customers and employees; broken gates, locks and access-control systems; surveillance cameras and preserved video; lighting conditions; security-company contracts; maintenance records; internal communications; previous security assessments; and decisions concerning security staffing.
Evidence like this can help answer the questions that ultimately matter:
Was the danger reasonably foreseeable?
Who knew about it?
When did they know?
What reasonable precautions were available?
And could those precautions have prevented or reduced the risk of the catastrophic injury or death that followed?
In a serious case, those questions should be investigated promptly. Video can be overwritten. Electronic records can disappear. Physical conditions change. Employees leave. Memories fade.
The evidence that explains why a tragedy occurred may not remain available forever.
Premises Liability Is Not Just About Slip-and-Fall Cases
The phrase “premises liability” covers an enormous range of circumstances.
A wrongful-death case arising from a murder may involve premises-liability principles. So may a catastrophic electrocution. A devastating fire may involve inadequate exits, alarms, or code violations. A violent assault may involve a broken access door that management allegedly knew had repeatedly been defeated.
The legal label does not adequately convey the seriousness of these cases.
They are catastrophic-injury and wrongful-death cases.
And determining responsibility frequently requires reconstructing what happened long before the final event: prior incidents, warnings, maintenance problems, security failures, corporate decisions, and opportunities to prevent the harm.
When Someone Else Commits the Crime
There is an understandable reaction after a violent attack:
The criminal did it. How can the property owner possibly be responsible?
Sometimes that is exactly right. The criminal may be the only person legally responsible.
But Missouri law recognizes that the analysis does not necessarily stop there.
Depending upon the property and the law applicable to it, when those responsible for a premises know or have reason to know of a serious danger, they may have an obligation to take reasonable measures to protect people lawfully using the property.
The Decker case demonstrates why that distinction matters.
Gary and Donna Decker went Christmas shopping.
They walked back toward their car.
They never came home.
The men who abducted and murdered them were responsible for those terrible crimes. But the Missouri Supreme Court concluded that evidence concerning what had previously occurred at the shopping center created a legitimate question about whether others also bore civil responsibility.
That remains the larger lesson.
When a preventable danger ends in catastrophic injury or death, the investigation should not necessarily stop with the person who caused the immediate harm. It should also ask who knew about the danger, who had the ability and responsibility to address it, and whether reasonable action could have prevented the tragedy.
Cosgrove Simpson
Cosgrove Simpson is available to represent clients in serious civil litigation, including catastrophic personal-injury and wrongful-death matters. Cases involving violent crime, inadequate security and dangerous property conditions are highly fact-specific and require careful evaluation of the evidence and applicable law.
Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Past cases and results do not guarantee or predict the outcome of any other matter. Missouri law governing premises liability, wrongful death and third-party criminal conduct depends upon the facts and law applicable to each individual case.