# Madden v. C & K Barbecue Carryout, Inc.

> Supreme Court of Missouri · September 13, 1988 · 758 S.W.2d 59

URL: https://www.frixlaw.com/law-library/cases/9652792

## Case

- **Full name:** Opal MADDEN, Plaintiff-Appellant, v. C & K BARBECUE CARRYOUT, INC., and Ozzie Carr, Defendants-Respondents; James DECKER, Et Al., Plaintiffs-Appellants, v. GRAMEX CORPORATION, Et Al., Defendants-Respondents
- **Court:** Supreme Court of Missouri
- **Decided:** September 13, 1988
- **Citations:** 758 S.W.2d 59; 1988 Mo. LEXIS 81; 1988 WL 94096
- **Precedential status:** Published
- **Opinion:** Dissent by Donnelly
- **Judges:** Billings, Blackmar, Donnelly, Higgins, Rendlen, Robertson, Welliver
- **Cited by:** 76 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9652792

## How later opinions describe it (automated extraction)

- stating that “[t]he touchstone for the creation of a duty is foreseeability,” and “[a] duty [to protect invitees from the criminal acts of unknown third parties] arises out of circumstances in which there is a reasonably foreseeable likelihood that particular acts or omissions…
- observing allegations of armed robbery, purse snatching, and multiple thefts “might not be sufficient to establish a duty of care,” but holding additional armed robberies, assaults, and flourishing over three years sufficient to establish duty
- holding six strong armed robberies, six armed robberies, one assault, and one purse snatching were sufficient

## Opinion text

DONNELLY, Judge,
dissenting.
In my view, the majority errs when it holds that owners of property may be found liable for criminal acts of unknown third persons. To borrow from Holmes:
I assume that common-sense is opposed to making one man pay for another man’s wrong, unless he actually has brought the wrong to pass according to the ordinary canons of legal responsibility, — unless, that is to say, he has induced the immediate wrong-doer to do acts of which the wrong, or, at least, wrong, was the natural consequence under the circumstances known to the defendant.
Holmes, Agency, 5 Harv.L.Rev. 1, 14 (1891).
In 1977, H.L.A. Hart portrayed the extremes in American jurisprudence as “the Nightmare and the Noble Dream.” The Nightmare is when, “in spite of pretensions to the contrary, judges make the law which they apply to litigants and are not impartial, objective declarers of existing law.” The Noble Dream is when the expectation of litigants is “that judges should apply to their cases existing law and not make new law for them * * Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 Ga. L.Rev. 969, 971, 973, 978 (1977).
In Kelly v. Benas, 217 Mo. 1, 9 , 116 S.W. 557, 559 (1909), this Court declared “that there must be a duty raised by the law and breached by the defendant before an action for negligence lies.”
Today, “the Court recognizes that business owners may be under a duty to protect their invitees from the criminal attacks of unknown third persons depending upon the facts and circumstances of a given case.” It must be conceded that the Court implants a duty on the part of business owners not heretofore raised by the law. In my view, the Court thereby makes the law and departs from the judicial process. See Mo. Const, art. II, § 1. But, of course, this has been going on for some time. See Jackson v. Ray Kruse Construction Company, Inc., 708 S.W.2d 664, 671, 672 (Mo. banc 1986) (Donnelly, J., dissenting). In such circumstance the questions are: Is it right? Is it good?
Historically, Missouri public policy has been to seek to prevent crime through utilization of public police forces financed by tax money. Today the Court opts for crime prevention in business localities through utilization of private police forces financed by consumers through higher prices.
I do not know which is right and good. But I am not disconsolate. I do not believe that the people expect judges to decide such questions of public policy. They are for the General Assembly.
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9652792. Public record. Not legal advice.