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How a Business can be Sued for the Criminal Acts of a Non-Employee

Posted on by Matt Hamilton

How Can a Business be Sued for Criminal Acts by a Non-Employee?

Pedestrian Hit by a Car in a Parking Lot

It is Saturday night. Robert owns a local coffee shop.  This coffee shop is a building and a parking lot next to a crowded street.  Young people like to congregate and socialize in its parking lot Saturday nights.

Bob’s Coffee Shop tolerates the people hanging out in its parking lot.  Perhaps Bob remembers when he was young.  Perhaps it increases his customer base.  Perhaps Bob is simply busy with the running of the business and tolerates their presence, having fun on his coffee shop property.

The kids like to stand around and socialize.  Others “hot rod” through the parking lot.  They speed; they play chicken; some even drive drunk.

One Saturday night is particularly busy.  There are a number of people hanging out in the parking lot.  Others are showing off driving through, speeding, drinking, and driving.  A young girl gets hit by one of the drivers.  Can the victim hire an auto accident lawyer to sue Bob for failing to kick the drivers or pedestrians out of his parking lot?

The General Rule; the Owner Cannot be Sued.

The general legal rule is that business owners do not have a duty to protect their invitees from the criminal acts of third parties. See Posecai v. Wal-Mart Stores, 752 So.2d 762 (La. 1999); Sturbridge Partners, Ltd., et al. v. Walker, 267 Ga. 785, (1997).

Owners do not generally have a duty protect their people on their property from the negligence of others who do not work for them or represent them.  Burnett v. Stagner Hotel Court, Inc., 821 F.Supp. 678, 682 (N.D. Ga. 1993). There is an exception.

The “special facts and circumstances” exception that creates business liability.

A business owner can be liable to a victim on his property even when the perpetrator had nothing to do with the business owner.

The special facts and circumstances exception applies with the following test:

  1. Is the perpetrator a third party? (Not the business itself or one of its agents)
  2. Is the perpetrator known to be violent? Did the person behave in a way that indicated danger was on the premises?
  3. Did the business owner have sufficient time to prevent an injury?

Ali Aziz v. Jack in the Box, 477 S.W.3d 98 (Mo. App. 2015).

Foreseeability is the Key

Foreseeability

Our Supreme Court has spoken about this issue.  The “touchstone for the creation of a duty is foreseeability.”  Madden v. C & K Barbeque Carry-out, Inc., 758 S.W.2d 59, 62 (Mo. 1988).  It’s all about the facts of the situation. Is there a foreseeable likelihood that failing to act will cause harm?  Then you likely have a duty.

Can the business owner anticipate that acting in the way that he does will cause injury?  Then there is duty.  In Aziz, there was a fight in a parking lot and Jack in the Box was held $20.5 million dollars liable for the resulting harm.

In another case, an innocent victim was raped in a gas station parking lot by an unknown person.  The court and the jury found the circumstances created a dangerous situation for the victim that the gas station owners could have fixed.  Instead, the owners did nothing and she suffered great harm.  Richardson v. QuikTrip Corp., 81 S.W.3d 54 (Mo.App. W.D. 2002).

Do We Actually Need To Know About The Threat?

Actual notice of a specific threat is not a requirement to be held liable for accident injuries on property.  There is only the requirement that someone (a third party; not connected with the business) acts in a way that indicates a danger on the business owner’s property and that also there is sufficient time to prevent that injury.

Does The Danger Always Have To Be To The Actual Victim?

The law refers to these people as “invitees.”  These are people who come to the property because the business invites the public generally.  They may also come with a specific expectation of some benefit by being on the business owner’s property.  We are talking more about customers and less about burglars.

The anticipated risk of injury does not have to be to the actual victim that winds up getting hurt.  The victim merely needs to be in the class of people or the type-of-person who is put at risk.

Referring to our example of Bob’s Coffee Shop, the crowd generally was at risk for being hit by an automobile and creating a pedestrian auto accident.  It is not necessary for the victim to have been there a long time or acted in a particular way.  This is more about a duty of care to prevent an injury by a known danger or a danger that could have been revealed by an adequate inspection.  The victim does not need to actually enter the business.  They do not actually have to complete a transaction. Aziz, 477 S.W.3d 98.

Conclusion

Pedestrian auto accidents are some of the most harmful events caused by cars.  The victims do not have the benefit of the protection of seat-belts and roll cages or airbags.  Business owners need to be mindful of all types of injury on their premises and not merely turn a blind eye because they are not the direct perpetrator.  If they do, they may find themselves with a personal injury lawsuit and claim against them.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

Bibliography:

Jessica Agnelly, Court Analyzes Business Owner’s Duty Owed to Invitees from Criminal Acts of Third Parties, Mo. Trial Atty., 16 (Winter 2016).  https://www.matanet.org/

Sean Martin & Allison Carr, Are You as Guilty as the Criminal? Liability for Criminal Acts of Third Parties and Employees, FDCC Winter Meeting (2014).  http://www.thefederation.org/documents/01.Are%20You%20as%20Guilty.pdf

 

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Posted on by Matt Hamilton

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Amputation cases, especially where a prosthetic is needed, present unique legal problems.  The amputee may presume the cost of future medical treatment is a certainty.  This is far from the truth.  A number of problems may rob the accident victim of their ability to pay for future prosthetic costs and other medical treatment.  This article teaches ways to overcome medical physician testimony problems.

Treating physicians often tell an amputee victims that the accident was certainly the cause of their injury. The Doctors will say they will “back them up” with whatever help they may need.  Once the lawsuit starts, and insurance companies ask questions, the doctors retreat.  Their testimony can even be harmful.  The primary method is the doctor appearing to support the patient; but in reality the Doctor’s testimony harms their patient’s legal needs.

Physician Failure to Understand the Legal Standard

The problem is the standard to get testimony into evidence in court.  Courts have requirements called “foundation.”  A witness may “say” something; but if what the witness says does not have a foundation, the jury or judge will not consider (or even hear) it.

Mixing “Certainty” up with “Reasonable Medical Certainty”

With physicians, this is the “reasonable medical certainty” standard.  For example, in Missouri, the Supreme Court ordered in cases like Swartz v. Gail Webb Transportation Corporation, 215 S.W. 3d 127, 130 (Mo. banc 2007), admissible evidence must be “to a reasonable degree of medical certainty.” This means it must be “more likely than not” or greater than 50% likely.

Herein lies the problem.  Physicians will quaff that they cannot say with absolute certainty or cannot be accurate in predicting what a patient will suffer or need in the future and therefore cannot say with certainty.  This will mean their testimony does not get into evidence and the amputee victim loses.

Dr. Jonas Rappeport, MD, wrote a lengthy article about physician uncertainty and legal testimony in 1985.  Reasonable Medical Certainty, Bull. Am. Acad. of Psychiatric Law, Vol. 13, No. 1, 1985.  In that article, Dr. Rappeport called the American legal standard a “legal fiction” and void of any practical meaning for physicians.  In essence, if a doctor cannot meet this legal standard, he is saying nothing at all.

Passive Qualifying Words

A second problem is physicians that give opinions, saying words like “might,” or “possibly,” or “could.”  Again, these are not opinions to “a reasonable degree of medical certainty” and may be excluded by a trial judge.  A Missouri court as early as 1965 addressed this.

The Court in Bertram, v. Wunning, 385 S.W. 2d 803 (Mo. App. 1965) considered the standard.  Herein, the court indicated that expressions like could, might, or possibly are common instances of language used by experts in the field.  The court recognized that as long as the physician indicates his opinions are to a reasonable degree of medical certainty, even though the physician may use qualifying language, the testimony is admissible.  Thus, the first problem with physician uncertainty is overcome.

The Uncertain Future of the Patient

A second problem is the uncertainty of future medical treatment or repercussions.  Doctors helping amputation victims cannot see the future.  Future treatment or negative outcomes may be dependent upon events that do not occur.  This second problem is physicians saying this may not occur unless one or two or three other events happen.  Therefore, they give the opinion they cannot say to a reasonable degree of certainty because they do not know the certainty of these future events.  This challenge can also be overcome.

Events that May Only Occur if Something Else Happens

The Missouri Supreme Court in the case of Bynote v. National Supermarkets, Incorporated, 891 S.W. 2d 117, 124-25 (Mo. banc 1995) addressed this issue.  The court ruled that evidence of future treatments and even its costs may be admitted before a trial court or jury.  The evidence can “come in” even when the medical treatment would be dependent upon the outcome of other events, such as more conservative medical treatment.

In Bynote, the court considered a victim that would only need the additional treatment, if they later began suffering a locked back.  Surgery was possible but not recommended by the treating physician.  Still, it was admissible as a possible future consequence.

The Missouri Supreme Court in the case of Breeding v. Dotson Trailer Repair, 679 S.W. 2d 281, 283 (Mo. banc 1984) considered a case where the patient did not want the surgery.  In Breeding, the accident victim testified they did not want surgery.  Furthermore, the victim’s physician indicated surgery would only be needed if and only if conservative treatment failed.  Still, since surgery was a possibility given future events, it was admitted.

This was later expanded in the case of Emery v. Wal-Mart Stores Incorporated, 976 S.W.2d 439 (Mo. App. 1998).

These are two ways in which uncertain physician testimony can be admitted so that an amputee can receive compensation for future treatment, even when it is uncertain or dependent upon other factors.

Look to other materials on our page for Amputation Lawyers and personal injury claims.

Author:

Matt Hamilton

  • Trial Lawyer
  • Juris Doctor

 

How to Sue for Malicious Prosecution (You Got Wrongfully Sued)

Posted on by Matt Hamilton

How To Sue For Malicious Prosecution For A Civil (Not Criminal) Lawsuit.

You get sued.  They claim to be the “victim,” but you are the real victim.  You are being sued based on a falsehood … for their improper motives.  Can you strike back for justice?

Victims often ask lawyers whether they can sue for malicious prosecution.  Situations arise when a victim has been sued wrongfully.  They have stress.  They have legal expenses.  Other costs come in.  The wrongful lawsuit damages their reputation.  It may even be damage their credit rating.

Some victims merely want emotional support.  They want someone to tell them they are right, the person that sued them is wrong, and provide sympathy.  That is certainly the expected role of family, and friends.  It is a whole other matter entirely to counter – sue the person and attempt to win money from them.

The Benefits of Malicious Prosecution Suits

Malicious prosecution lawsuits have three main benefits:

  1. Compensation for out of pocket and other expenses.
  2. Deter or prevent the wrongdoer from wrongfully suing others in the future.
  3. Deter other similar wrongdoers from creating victims.

The same legal analysis must be completed regardless of whether you are a victim or an attorney.  This article explains the process in a civil setting.  Look to our companion article on criminal cases.

The Technical Legal Test to Win at Malicious Prosecution

The traditional elements of a lawsuit for malicious prosecution are as follows:

  1. The commencement or prosecution of a proceeding against the victim;
  2. “Legal Causation” by the present defendant;
  3. The lawsuit’s termination in favor of the present plaintiff;
  4. The absence of probable cause for the proceeding;
  5. The presence of malice;
  6. Damage to the victim.

State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc 2014);

Bonzo v. Kroger Grocery and Baking Co., 125 S.W.2d 75 (Mo. 1939);

Higgins v. Knickmeyer-Fleer Realty and Investment Co., 74 S.W.2d 805,812 (Mo. 1934).

This is the traditional law for malicious prosecution.  Is it confusing you?  There is an easier analysis.

The Easier to Understand Test for Malicious Prosecution

The Missouri Approved Instructions for a jury trial present a straightforward analysis for evaluating potential malicious prosecution cases.  It is meant for ordinary people to understand and will be easier for you.

The test for malicious prosecution is as follows:

  • First, did the wrongdoer instigate or continue a judicial proceeding (a lawsuit) against the victim (you) that the victim won?
  • Second, in doing that, did the wrongdoer acted maliciously and without reasonable grounds?
  • Third, was the victim damaged?

Paraphrase of M.A.I. 23.07 (2000 Rev.).

What Does “Maliciously” mean?

You may have noticed some technical terms.  They are important.  The first term is “maliciously.”  In a civil setting, maliciously means intentionally doing a wrongful act without just cause or excuse.  It does not necessarily mean hatred, spite, or ill will.  M.A.I. 16.01 (1) (1996 new); see also Sanders v. Daniel Intern Corp., 682 S.W.2d 803 (Mo. banc 1984); and Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (Mo. banc 1986).

What Is Reasonable Grounds?

Reasonable grounds is also needed for your analysis of whether you have a malicious prosecution case.  Luckily, reasonable grounds is defined.  “Reasonable grounds” means the existence of facts which would cause an ordinarily careful person to believe plaintiff (the victim) was guilty of the offense charged.  See Palcher v. JC Nichols Co., 783 S.W.2d 166 (Mo. App. 1990).

Our Law Dislikes Malicious Prosecution Cases

Malicious prosecution cases are not favored in the law.  Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979).  Because of this, you as the victim must be prepared to provide “strict and clear proof” of each of the elements of malicious prosecution.  Id.

Probable Cause Weighs In Too!

The second element of malicious prosecution requiring reasonable grounds is closely related to probable cause.  You should plan on addressing the probable cause elements as part of your malicious prosecution case.

The Missouri Supreme Court has set out a definition for probable cause in civil cases.  It is as follows:

  1. The person’s beliefs in the facts alleged,
  2. Based upon sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus
  3. A reasonable belief that under the facts the claim may be valid under the applicable law.

Holly v. Caulfield, 49 S.W.3d 747, 750-51 (Mo. App. 2001).

The Easy to Understand Test for Probable Cause

Basically, you need to ask yourself the following questions:

  • Did the person who sued you believe the facts they were alleging?
  • Would any reasonable person believe those facts?
  • Did the law allow a lawsuit against you; under those facts, assuming they were true?

Can I Get Punitive Damages To Punish?

Punitive damages are called “exemplary damages” and are not favored by the courts, much like malicious prosecution cases.  To get punishment damages in a malicious prosecution case, “the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper Judication of the claim on which they are based.”  Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (6, 7) (Mo. banc 1986).  Remember that punitive damages require a separate determination by the court by “clear and convincing evidence,” which is a higher standard.  Remember, who you are suing must have acted with a conscious disregard for your rights.  I encourage you look to my article on punitive damages to see the specific elements of that cause of action.

Conclusion

Malicious prosecution cases are complex and have many legal requirements, as you can see.  This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit.

Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money.  Secondly, we see malicious prosecution lawsuits when it is an actual person who is just suing to “get at” somebody.  I wish you luck in your analysis and hope any victims can receive just compensation based upon our analysis.

Matt Hamilton

  • Juris Doctor
  • Trial Attorney

 

More Relevant Articles:

  1. Dudley McCarter, Malicious Prosecution Suits Are Not Favored, 72 J. Mo. Bar 296 (2016).