The Missouri Supreme Court 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 person because such activities are rarely foreseeable. In Harner v. Mercy Hospital Joplin, the Supreme Court explained that the limited “known third person” 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.”
Harner involves a negligence claim alleging Mercy Hospital breached its duty to protect Plaintiff from the criminal acts of Kayla Liska, who shot Harner after he found Liska inside his unlocked vehicle in the Mercy parking lot. Whether or not Mercy could be liable for the criminal acts of Liska really boiled down to whether they knew Liska was dangerous prior to the shooting such that a duty of care arose.
The Missouri Supreme Court ultimately concluded it was not foreseeable under the facts of the case that Liska would become violent or dangerous. Although 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.”
When it comes to a business owner’s duty to protect its invitees, it is important to understand the general rule, exceptions, and nuances associated with third-party criminal activities. If the case involves a known third person, defendants should pay particular attention 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.