Earley v. Dunn, No. ED 110514, 2023 WL 2576645, at *1 (Mo. Ct. App. Mar. 21, 2023)
In 2018, the Missouri Legislatures passed a bill codifying the legal principle that a “business” does not have a duty to protect against third party criminal acts unless certain conditions are met. This statute only applies to businesses, and causes of action that arise after 2018, but otherwise preempts the common law that has developed in this area since the Missouri Supreme Court recognized this cause of action in Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881, 886–87 (Mo. 1983).
At common law, the general rule is that there is no duty to protect against the criminal acts of third parties because such events are rarely foreseeable. However, there are two exceptions to the general rule, those being “when either a “special relationship” or “special facts and circumstances” exist, such that “an act or omission exposes someone to an unreasonable risk of harm through the conduct of another.”
The Earley case involves only the question of whether a “special relationship” existed between Plaintiff Earley, the employee and her employer, Defendant Dunn. The Plaintiff argued and the Court agreed that many Missouri Courts had delineated the relationships that create duty included “…those of innkeeper-guest, common carrier-passenger, school-student, and sometimes employer-employee.” Dunn had suffered a stroke and Earley was hired to provide in-home care. One evening Dunn’s grandson showed up drunk and sexually assaulted Earley. Earley then brought suit against Dunn alleging that she has a duty to protect her and had breached that duty.
In what had to be a somewhat embarrassing admission, the author of the opinion, Judge John Torbitzky, explained that while several Missouri cases have proclaimed special relationships can include an employer-employee relationship, Missouri has never actually recognized the employer-employee relationship as being “special.” Judge Torbitzky elaborated, writing:
We have found no Missouri case holding that the employer-employee relationship should be considered a special relationship justifying departure from the general “no duty” rule. There exists no case law in this jurisdiction in which a court conducted an analysis on the issue. We have also been unable to locate any cases in which our courts have actually applied the special relationship exception to an employer. Instead, the concept appears to have come into our jurisprudence simply by being included, without elaboration, in a list of the types of relationships that can fit within the special relationship exception.
Finding no special relationship existed between Plaintiff Earley and Defendant Dunn, the Court affirmed the trial court’s entry of summary judgment in favor of Dunn.