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Date: 06-07-2024

Case Style:

Steven Harner v. Mercy Hospital Joplin

Case Number: 17NW-CV-1622

Judge: John LePage

Court: 40th Judicial District Circuit Court, Newton County, Missouri

Plaintiff's Attorney: Joseph Patrick Winget

Defendant's Attorney: Scott Edward Bellm, Jeffrey Todd Davis, Rodney Earl Loomer


Springfield, Missouri personal Injury lawyers represent the Plaintiff who sued on a premises liability theory.

Harner sued Mercy in negligence relating to injuries Harner sustained in December 2015 when he was shot by Kaylea Liska (“Liska”) in Mercy’s parking lot while visiting his daughter at Mercy’s Emergency Department. Mercy moved for summary judgment, arguing it owed no duty to protect Harner from the criminal acts of a third party. The trial court denied summary judgment. The case was tried to a jury over five days beginning July 19, 2021. Mercy moved for directed verdict at the close of Harner’s case and at the close of all of the evidence, and the trial court denied both motions. On July 23, 2021, the jury returned a verdict for Harner and awarded damages of $2,000,000, which the trial court reduced to $1,500,000 based on the jury assessing Harner 25% of the fault. On July 27, 2021, the trial court entered Judgment in accord with the jury verdict. Mercy moved for JNOV, and alternatively, a new trial, which the trial court denied after Mercy and Harner submitted briefing and the trial court heard argument. Mercy timely appealed.

* * *

“This court is constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court.” YAM Cap. III, LLC v. GS Hosp., LLC, 648 S.W.3d 878, 890 (Mo.App. 2022) (quoting Kinder v. Mo. Dep’t of Corr., 43 S.W.3d 369, 374 (Mo.App. 2001) (citing Mo. Const. art. V, section 2 (1945)). “In any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant’s breach proximately caused the plaintiff’s injury.” Wieland v. Owner-OperatorServs., Inc., 540 S.W.3d 845, 848 (Mo. banc 2018) (citingL.A.C. ex rel. D.C. v. Ward ParkwayShopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002)). “The touchstone for the creation of a duty is foreseeability.” Id.

“A duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable.” 848 (quoting L.A.C., 75 S.W.3d at 257). “However, this Court has recognized ‘two ‘special facts and circumstances’ exceptions to the rule that businesses generally have no duty to protect invitees from criminal acts of third persons.’” Id.In Wieland, the Supreme Court of Missouri explained the Known Third Person exception: In recognizing the two exceptions to the “no duty” rule, this Court essentially adopted the rule established by § 344, comment f, of the Restatement (Second) of Torts.See Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo.banc 1988). That rule provides: Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, there is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. [. . .]

11 Restatement (Second) of Torts § 344 cmt. f (emphasis added).

As further explained:The [rule] underscores two rather different situations in which the duty may arise.

The first is when the defendant knows, or has reason to know, that a third party is harming or is about to harm an entrant. At this point the defendant may be able to protect the entrant only by warning him, summoning the police or utilizing already available security measures. [. . .]The Law of Premises Liability § 11.03[1], 11-6 (emphasis added) (internal footnotes omitted). Id. at 848-49.

In Wieland, the Supreme Court of Missouri also explained: Accordingly, this Court has explained, “Under the first exception, ‘the duty may arise 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.’” L.A.C., 75 S.W.3d at 257. Because the first exception concerns when a business knows or has reason to know a specific third person is both (1) on its premises and (2) dangerous, no duty of care arises until after that specific person has entered the business’s premises. See id. at 257, 263; Restatement (Second) of Torts § 344 cmt. f and § 12 cmt. a; The Law of Premises Liability § 11.03[1], 11-6.

In contrast, the second exception “recognizes ‘a duty [on the part of business owners] to protect their invitees from the criminal attacks of unknown third persons’ under certain special circumstances.” L.A.C., 75 S.W.3d at 257 (emphasis added). Because the second exception concerns when a business knows or has reason to know of dangerous persons in general frequenting its premises, a duty of care arises without regard to any specific person entering the business’s premises.See id. at 257–58; Restatement (Second) of Torts § 344 cmt. f and § 12 cmt. a; The Law of Premises Liability § 11.03[1], 11-6.

In other words, with the second exception, the business is tasked with taking “precautionary actions to protect its business invitees against the criminal activities of unknown third parties.”L.A.C., 75 S.W.3d at 258.

Outcome: Affirmed

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