# 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/9652793

## 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 Welliver
- **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/9652793

## 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

WELLIVER, Judge,
dissenting.
I respectfully dissent and concur in the dissent of Donnelly, J.
On April 26, 1983, this Court tested the water on making Missouri citizens liable in *67 damages for injuries inflicted by criminals to persons on their property. Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881 (Mo. banc 1983). Virginia D. recovered damages for rape by an assailant in a hotel restroom. While the majority indicated that they were only enlarging “inkeeper’s liability,” the recovery was awarded, not to a guest of the hotel, but to a patron of Mrs. Hulling’s restaurant, one of the building tenants.
Today, all of the Missouri business community is clearly and unequivocally saddled with liability for criminal acts committed against persons on the property of the business. Every person in Missouri is going to find the cost of guards, security systems, and higher liability insurance premiums added to the cost of the groceries and products sold by the business establishments. All of this in addition to the taxes we pay to have the finest Highway Patrol, city and county police forces possible. As was suggested by Donnelly, J., if there be social policy or reason for making this change, it should be done by the legislature, not by the courts. No better words can be found to describe what the majority does today than the words which my brother Robertson directed at me when he felt that by an opinion I had invaded the province of the legislature.
We have come the full circle. In doing so we prove the truth that the fruit of judicial trespass into areas properly reserved for the legislative branch of government is not a blessing, but a curse.
Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491, 496 (Mo. banc 1986) (footnote omitted).
What greater curse can be cast upon Missouri property owners than that juries be permitted to assess against them damages for the acts of criminals committed against other persons on their property.
I would affirm the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9652793. Public record. Not legal advice.