On July 5, 2018, Governor Parson signed Senate Bill 608, which not only modifies provisions regarding the liability of property owners when criminal conduct occurs on their property, but also creates the Business Premises Safety Act.
With regard to general principles of civil liability due to criminal liability, Senate Bill 608 repealed part of Section 537.349, RSMo, which provided that a person or business is not liable for the injury or death of a trespasser when the trespasser is substantially impaired by alcohol or the illegal influence of a controlled substance, unless the person or business acted with negligence or willful and wanton misconduct. Under the new law, a person or business may only be held liable if their willful and wanton misconduct was the proximate cause of the injury or death of the trespasser. Negligence is no longer a basis for liability in this context.
The signing of Senate Bill 608 created The Business Premises Safety Act. The Act creates safeguards to businesses when unpreventable and unpredictable third-party crimes occur on the business premises. Under the Act, a business only has to a duty to guard against criminal acts or harmful acts occurring on the business’ premises when the business knows or has reason to know that such acts are being committed or are reasonably likely to be committed in a particular area of the business, and sufficient time exists to prevent such crime or injury. Further, businesses will not be liable if the business has implemented reasonable security measures; when the claimant was a trespasser under the influence of alcohol or a controlled substance, or committing or attempting to commit a felony; or the criminal acts or harmful acts occurred while the business was closed to the public.
The Act appears to codify Missouri common law which creates a duty when a person, known to be violent, is present on the premises, or an individual is present who has conducted himself in a manner that indicates that he or she is a danger and sufficient time exists to prevent injury. (e.g. Wieland v. Ownner-Operator Services, Inc., 540 S.W.3d 845, 848 (Mo. banc 2018), reh’g denied (Apr. 3, 2018). In Wieland, the Missouri Supreme Court recognized that, “[a] duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable.” Id. However, the Court noted “two ‘special facts and circumstances’ exceptions to the rule that businesses generally have no duty to protect invitees from criminal acts of third persons.” Id. (quoting L.A.C ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002)). “‘Under the first exception, ‘the 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.’” Id. at 849 (quoting L.A.C., 75 S.W.3d at 257)) (Emphasis added). No duty arises until after that specific person has entered on the business’ premises. Id. The second exception to the general no-duty rule “is when the nature of defendant’s business or past experience provides a basis for the reasonable anticipation on defendant’s part that the criminal activity of third persons might put entrants at risk. Id. at 848. “In contrast, the second exception “recognizes ‘a duty [on the part of business owners] to protect their invitees from the criminal attacks of unknown third persons’ under certain special circumstances.’” Id. at 849 (quoting L.A.C., 75 S.W.3d at 257)) (Emphasis added). Specifically, “the business is tasked with taking ‘precautionary actions to protect its business invitees against the criminal activities of unknown third parties.’” Id. (quoting L.A.C., 75 S.W.3d at 258)).
Prior to the Act, Missouri Courts relied on the Restatement (Second) Torts for guidance. Additionally, the Act codifies the aforementioned affirmative defenses, which Missouri case law did not specifically address.