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Court focuses on procedure in premises liability case.

Byline: Jessica Shumaker

Amie Wielands ex-boyfriend shot her in the head in the parking lot of the trucking company where she worked in suburban Kansas City Did her employer have an obligation to protect her on its property? The Missouri Supreme Court took up that question last fall as it examined the duties of Missouri businesses to protect people on their property from criminal acts by third parties. In a split 5-2 ruling Feb. 13, however, the majority of the court instead focused its attention on procedural aspects of the case but did not address that central question. The ruling affirmed a $3.25 million jury verdict for Wieland in her suit against her former employer, Owner-Operator Services Inc., a Grain Valley truck-insurance provider. Wieland sued the company for negligence after her abusive ex-boyfriend, Alan Lovelace, hid in her car and waited for her to leave at the end of her work day. He then shot her in the parking lot and fled, sparking a cross-country manhunt that ended when he committed suicide in California to avoid arrest. Wieland, then 33, survived the shooting in November 2012 but suffered permanent damage as a result of her injuries. At trial, the Oak Grove woman testified that before the shooting, she notified the company through its human resources manager that she was concerned about Lovelace and scared for her safety. Her attorneys argued the company had established a domestic-violence policy to protect its employees. They said Wielands report should have prompted human resources to ask for Lovelaces photo and description to share with the company's security team, enable Wieland to park in a lot closer to the office and provide her with escorts to her vehicle. Wieland alleged the company failed to follow that policy. At trial the company denied that it had a strict policy. Judge W. Brent Powell wrote the majority opinion, with Chief Justice Zel Fischer, George W. Draper III, Paul C. Wilson and Laura Denvir Stith concurring. Judge Mary R. Russell wrote the dissenting opinion, with Judge Patricia Breckenridge concurring. While businesses in Missouri generally have no duty to protect those on their properties from criminal acts of third parties, Powell said the Supreme Court has recognized two exceptions:

when a business knows, or has reason to know, that a specific person is harming or is about to harm a person on its property when the nature of a defendants business or past experience provides a basis for reasonable anticipation on the defendants part that the criminal activity of a third party might put those on the business property at risk On appeal, the company argued Jackson County Circuit Judge Jack Grate erred in allowing the use of a verdict director a jury instruction outlining the elements of Wielands claim because its language was based on the first exception. The company claimed Wielands evidence focused only on precautions the company could have taken before Lovelace entered the parking lot. Under the first exception, they argued, the company had no responsibility until after he entered the parking lot. Powell wrote the company did not raise that specific challenge during an instructions conference with Grate or in its motion for a new trial, which meant the challenge was not properly preserved for the Supreme Courts review. Even if the point had been preserved, Powell wrote that it was a meritless argument, and that the company and the dissenting judges mistakenly compared the evidence submitted at trial to the exceptions rather than to the language of the verdict director. Although Wielands evidence may not have supported a hypothetical verdict director flawlessly stating the substantive law for the first exception, Wielands evidence supported the verdict director actually submitted to the jury, Powell wrote. In the dissent opinion, Russell said she would reverse the judgment and send the case back for a new trial. She disagreed with the majoritys position that the company failed to preserve its challenge of the verdict director. She said it should not have been submitted to the jury. Russell wrote that under the first exception, the company had no duty to take precautions because its duty did not arise until after Lovelace entered the property and presented a known danger. She said the trial judge erred in allowing the jury to consider whether the company could have known of Lovelaces presence before he entered the property because the language of the verdict director was misleading and confusing. By submitting this verdict director, the trial court permitted the jury to impermissibly speculate about what Employer could have known before Lovelace entered the property and enter a verdict based upon inadequate evidence, she wrote. Edwin Smith, an attorney with Polsinelli in St. Joseph, represented Owner-Operator. He said his client is considering a motion for rehearing by the court and declined to comment further. Wielands attorney, Scott Bethune of Davis, Bethune & Jones in Kansas City, could not be reached for comment. A week after the ruling, the Missouri Senate on Wednesday gave first-round approval to the Business Premises Safety Act, which addresses questions of business liability. The bill needs a second approval before moving to the House of Representatives for consideration. Under the act, a business would have a duty to guard against criminal acts on its property only when it knows or has reason to know such acts are being committed or are likely to be committed in a particular area of the property, and there is enough time to prevent injury. It also provides new arguments businesses can raise in their defense. The case is Wieland v. Owner-Operated Services Inc., SC962.

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Publication:Missouri Lawyers Media
Date:Feb 22, 2018
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