The flag: Protection from known third party criminal acts, arbitration agreement, and more

W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.

BUSINESSES HAVE NO DUTY TO PROTECT INVITEES FROM CRIMINAL ACTS OF UNKNOWN THIRD PARTIES 
Harner v. Mercy Hospital Joplin, 679 S.W.3d 480 (Mo. banc 2023). 

An individual broke into Steven Harner’s vehicle and, using his gun, shot and injured him in the Mercy Hospital Joplin parking lot after visiting his daughter in the emergency room. Since Mercy Hospital Joplin’s security was aware of an individual breaking into vehicles in the hospital parking lot, Harner sued the hospital for negligence, alleging it breached its duty to protect him from criminal acts of a known third party on hospital property. A jury attributed 75% fault to Mercy Hospital Joplin and 25% to Harner, and the circuit court entered judgment in accordance with the jury verdict. Mercy argued the circuit court erred in overruling its motion for judgment notwithstanding the verdict because Harner failed to make a submissible case on his negligence claim under the known third person exception to the general rule that businesses have no duty to protect invitees from the criminal acts of third parties. In Harner v. Mercy Hospital Joplin,¹ the Supreme Court of Missouri reversed the verdict and held that Harner failed to make a submissible case because Mercy owed no duties to Harner under the known third person exception. 

Generally, businesses have no duty to protect invitees from the criminal acts of unknown third persons because such activities are rarely foreseeable.² There are limited exceptions to the general rule, however, when special facts and circumstances render injury foreseeable in a given case, such as if a business “knows, or has reason to know, that a third party is harming or is about to harm an entrant.”³ 

Under the known third person exception, a “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.”⁴ The Court has explained the known third person exception “concerns when a business knows or has reason to know a specific third person is both (1) on its premises and (2) dangerous[.]"⁵

The Court found that the actions of the shooter 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. “Prior to the shooting, there was no evidence from which Mercy could have known [the shooter] would become violent, as she had not engaged in any verbal or physical altercations on Mercy’s premises,” the Court ruled.⁶ 

SERVICE OF SUMMONS ON OFFICE MANAGER DID NOT GIVE COURT JURISDICTION 
Hood v. Hale Fireworks, LLC, 2024 WL 937489 (Mo. App. S.D. March 5, 2024).

Hood sued Hale Fireworks, LLC after sustaining injuries when he tripped and fell over a pallet on Hale Fireworks’ property. Following entry of default judgment against Hale Fireworks, the circuit court granted Hale Fireworks’ motion to set aside default judgment. Hood appealed the decision, claiming the court erred in granting the motion to set aside default judgment because the court lacked personal jurisdiction over Hale Fireworks due to improper service of process. The Missouri Court of Appeals-Southern District affirmed in Hood v. Hale Fireworks, LLC.⁷ 

“Unless a defendant is served with process, or summoned, in a manner and form authorized by statute, the court is without authority to proceed.”⁸ “Service of process is a predicate to the trial court’s jurisdiction to adjudicate the rights of the defendant, and when the requirements for manner of service are not met, the court lacks power to adjudicate.”⁹ 

The requirements for service of process on a limited liability company outlined in § 347.033 were not met, the court found. “Here, Plaintiff agrees that Process Server delivered the summons and petition to Office Manager, not to Registered Agent, the individual that Defendant designated as its registered agent with the Missouri Secretary of State.”¹⁰ “Based upon the undisputed facts, we cannot conclude that the circuit court erred as a matter of law in ruling that it did not acquire personal jurisdiction over Defendant and the default judgment entered against Defendant was thereby void.”¹¹

TRIAL COURT RULING ON MOTION IN LIMINE IS PRELIMINARY AND SUBJECT TO CHANGE 
Cottonaro v. Express Medical Transportation, Inc., 2024 WL 1057068 (Mo. App W.D. March 12, 2024). 

In Cottonaro v. Express Medical Transportation, Inc.,¹² Express Medical Transportation, Inc. appealed a judgment finding it negligent and awarding Rose Cottonaro compensation and punitive damages. Express asserted the trial court erred in admitting evidence of three “other similar incidents” (OSIs) involving Express because those incidents were not substantially similar to Cottonaro’s incident in that the OSIs involved different drivers, vehicles, and specific means of alleged injury. Because Express failed to properly preserve this point, the Missouri Court of Appeals-Western District affirmed the trial court’s judgment.¹³

"The trial court’s ruling on a motion in limine is a preliminary ruling on the admissibility of evidence and is subject to change throughout the course of trial.¹⁴ Thus, ‘to properly preserve for appeal the admission of evidence complained of in a motion in limine, the party challenging the evidence must also object at trial.’¹⁵ Moreover, ‘[t]he failure to object at the trial on the same basis as that asserted on appeal fails to preserve that issue for appellate review.’¹⁶ 

‘Express could have objected on the basis of either lack of similarity or relevance each time Cottonaro presented OSI evidence, or Express could have objected to the initial presentation of such evidence and requested a continuing objection, but Express did neither.’¹⁷ ‘Under Missouri law, objections must be made at the earliest opportunity, and failure to object constitutes waiver of the claim on appeal.’¹⁸ Thus, Express’s claim of error in admitting the OSI evidence is not preserved for the appellate court’s review."

When an issue isn’t properly preserved for appellate review, the court may only review for plain error.¹⁹ Since Express did not ask the Missouri Court of Appeals to consider its argument for plain error, it did “not provide us [the court] any reason to do so.”²⁰ 

ARBITRATION AGREEMENT IN SIGNED RELEASE WAS ONLY VALID FOR THE DAY IT WAS SIGNED 
Karlin v. UATP Springfield, LLC, 2024 WL 1501287 (Mo. App. S.D. Feb. 20, 2024). 

UATP Springfield, LLC d/b/a Urban Air Springfield appealed the trial court’s denial of its motion to compel arbitration in a negligence action Presley Karlin brought after suffering injuries at Urban Air’s facility. Urban Air contends the trial court erred in denying arbitration because Karlin was bound by an enforceable arbitration clause. The Missouri Court of Appeals-Southern District found no valid enforceable agreement to arbitrate and, therefore, affirmed the trial court’s interlocutory order.²¹ 

Urban Air argued the release containing the arbitration clause Karlin’s mother signed in November 2020 remained in effect at the time of Karlin’s visit on March 28, 2021, when he was injured, “as there was no indication the release was only valid for one day and it contained no term of duration.”²² 

Before a party may be compelled to arbitrate, a court must first determine whether a valid enforceable agreement to arbitrate was formed between the parties, as an agreement to arbitrate is a contract subject to state contract laws and rules of interpretation.²³ The threshold issue before the Missouri Court of Appeals was whether a binding arbitration agreement existed: Was the release containing the arbitration agreement and signed in November 2020 binding on Karlin for all subsequent visits, including his visit on March 28, 2021? The court determined it was not.²⁴

"The cardinal rule in the interpretation of a contract under Missouri law is to ascertain the intent of the parties and to give effect to the intent. When an agreement does not provide the length of time it shall be effective and binding on the parties, the intent of the parties as to the agreement’s duration is determined from the ‘surrounding circumstances and by application of a reasonable construction of the agreement as a whole; and the duration of a contract may be implied from the nature of the contract or from the circumstances surrounding it.’²⁵ 

"[T]he intent of the parties in this case is to allow entry into Urban Air’s facility on the date the release is signed in exchange for a participant’s agreement to waive a jury trial and arbitrate any claims arising out of activities within its facility on the date the release is signed …Therefore, we determine the duration of the release signed by Karlin’s mother was one day, November 14, 2020. As such, there was no valid release containing an arbitration agreement enforceable against Karlin on the date of his alleged injuries at Urban Air."²⁶

Endnotes

1 679 S.W.3d 480 (Mo. banc 2023).

2 L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr., 75 S.W.3d 247, 257 (Mo. banc 2002).

3 Harner, 679 S.W.3d at 484. (quoting Wieland v. Owner-Operator Servs., Inc., 540 SW.3d 845, 848 (Mo. banc 2018)).

4 Id.

5 Id.

6 Harner, 679 S.W.3d at 485.

7 2024 WL 937489 (Mo. App. S.D. March 5, 2024).

8 Manzella v. Dorsey, 258 S.W. 3d 501, 504 (Mo. App. E.D. 2008).

9 Id.

10 Id. at 2.

11 Id.

12 2024 WL 1057068 (Mo. App W.D. March 12, 2024).

13 Id.

14 Id. at 4 (quoting Church v. CNH Indus. Am. LLC, 671 S.W.3d 829, 842 n.4 (Mo. App. W.D. 2023) (quoting Gaal v. BJC Health Sys., 597 S.W.3d 277, 290 
(Mo. E.D. 2019)).

15 Id.

16 Id. at 4 (quoting Thomas v. Harley-Davidson Motor Co. Grp., LLC, 571 S.W.3d 126, 135 (Mo. W.D. 2019)).

17 Id. at 5.

18 Id., (quoting Church, 671 S.W.3d at 841).

19 Washington v. Sioux Chief Mfg. Co., Inc., 622 S.W.3d 60, 76 (Mo. App. W.D. 2022).

20 Id. at 6 (quoting Church, 671 S.W.3d at 842).

21 Karlin v. UATP Springfield, LLC, 2024 WL 1501287 (Mo. App. S.D. Feb. 20, 2024).

22 Id. at 3.

23 Brown v. GoJet Airlines, LLC, 677 S.W.3d 514, 519 (Mo. banc 2023); Keeling v. Preferred Poultry Supply, LLC, 62 S.W.3d 672, 677 (Mo. App. S.D. 2021); Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006); see Rister v. NHC Healthcare – Osage Beach, LLC, 674 S.W.3d 794, 797 (Mo. App. S.D. 2023).

24 Karlin, 2024 WL 1501287 at 4.

25 Id. (citing J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973); Ditto, Inc. v. Davids, 457 S.W.3d 1, 10 (Mo. App. W.D. 2014)
(quoting Union Pac. R. Co. v. Kansas City Transit Co., 401 S.W.2d 528, 534 (Mo. App. W.D. 1966)) (internal citations omitted).

26 Karlin, 2024 WL 1501287 at 5.