Newspapers and television report daily about violent crimes that victimize innocent people. This article provides general information on a landowner or occupier's duty to protect a business invitee from violent crimes and some thoughts on handling these cases.

Under Missouri law an owner or occupier of land may be liable to a business invitee for the criminal attacks of an unknown third person in circumstances where it is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988). This doctrine is known as the "violent crimes" exception to the general rule governing premises liability.

Owners or occupiers of land also may be liable to a business invitee for criminal attacks of unknown third persons when they have assumed the duty to protect invitees from such attacks. Keenan v. Miriam Foundation, 784 S.W.2d 298, 302-305 (Mo. App. E.D. 1990). In Keenan, the occupier of the premises hired employees who had as part of their duties the protection of business invitees, but these employees left plaintiff alone for five to ten minutes and she was robbed and shot.

When investigating a violent crime case on behalf of a plaintiff or advising a business owner on the risk of liability, it is essential to learn the history of prior violent crimes for the property, as well as the neighborhood. Many police departments maintain computer records that contain detailed information for every street address within their jurisdiction. These records include dates, types and numbers of crimes for every address, and dates and reasons for every dispatch of a police officer to an address. Police incident reports frequently can be obtained for any crime for which an investigation was conducted. While these reports will have certain information redacted, they may provide useful details about the crime. If prior crime has been infrequent and non-violent, a court may find that the first instance of injury to a business invitee was not foreseeable and, therefore, the landowner or occupier had no duty to protect against its occurrence.

In addition to police records, other sources on prior criminal activity include newspapers, former employees, and other businesses in the neighborhood. Surveying neighborhood businesses often reveals that locally owned ones have implemented more extensive security measures than nahonal franchises. Consider obtaining an aerial photograph of the neighborhood and marking it to display data on the location of criminal activity and the security measures implemented by each business.

Depending on the frequency and nature of the crime occurring on business property, there are many security measures that may be taken by a landowner or occupier. One of these is to hire security guards. The primary purpose of security guards is to deter crime by their visible presence. This is an accepted security doctrine and has been the subject of expert testimony. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984). Where expert testimony establishes that the presence of appropriate personnel would have deterred criminal activity, a jury may find the absence of such personnel was the proximate cause of the plaintiff's injury. Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Cob. 1987); Nallan V. Helmsley-Spear, Inc., 407 N.E.2d 451 (N.Y. App. 1980).

Even though a business has hired security guards, liability may still arise if the security guards performed their duties in a negligent manner. Such negligence was the basis of liability in Keenan and Harris, supra. Other cases which discuss potential liability because of security guard negligence are A.M. Centennial Ins. v. Wells Fargo Alarm, 504 N.E.2d 742 (111. App. 1986), Erickson v. Curtis Inv. Co., 447 N.W.2d 165 (Minn. 1989), and Professional Sports v. Gillette Security, 766 F.2d 91 (Ariz. App. 1988).

Many times the victim of a violent crime will be an employee. Ordinarily, an employee's claim will be limited to worker's compensation. However, if the business is a franchise, discovery may show that a franchisor exerts control over security procedures. A franchisor's control of security measures may expose it to liability for injury to the franchisee's employees as a result of a violent crime. Martin v. McDonald's Corporation, 572 N.E.2d 1073(111. App. 1991).

As long as violent crime continues to flourish, landowners and occupiers may face liability for injury to business invitees if they do not implement appropriate security measures. Dave Morris has handled a number of cases in which a business invitee was injured by an act of violence and has obtained substantial settlements on behalf of his clients.

  Mike Hoffman, our Director of Administration, has been elected President of the Greater Kansas City Area Chapter of Legal Administrators (KCALA) for 1993. The KCALA has approximately 80 members, who meet once a month for a luncheon and program. Membership is open to administrators in private practice as well as those working in corporate law departments. Administrators come from law firms with as few as three attorneys, up to large firms with 150-175 attorneys.

  The KCALA is a member of the National Association of Legal Administrators. This group is an 8,000 member organization consisting of administrators from the United States, Canada, Australia, New Zealand and England.

  As Director of Administration, Mike Hoffman performs a variety of tasks for our firm. These include supervising the staff, recommending office equipment purchases, preparing financial reports, and managing daily office activities. In addition, Mike frequently is handed challenging projects, such as finding the ultimate paper shredder or reprogramming the phone system. Whether the task requires running complex spreadsheet software or grabbing a hammer and screwdriver to fix a broken file cabinet, Mike is always ready to solve the problem.

  The firm congratulates Mike Hoffman on his election as President of KCALA for 1993.

  We frequently are requested to investigate and evaluate claims for failure to diagnose breast cancer. These cases require a careful review of the medical records to learn what information was recorded about the size and location of the tumor, measurement of estrogen and progesterone receptors, histologic type, involvement of auxillary nodes, DNA index, and clinical staging, which are the primary prognostic factors discussed in the medical literature. Our next step is to consult general treatises such as Cancer: Principles and Practice of Oncology, by DeVita, et al., and Cancer Treatment by Haskell, to determine if the prognosis for our client appears to be significantly worse because of the delay in diagnosis.

  Unless our client has been followed at a breast cancer detection clinic, many times we find that the characteristics of the breast mass have not been well documented by the examining doctor. We ask the client to give us a detailed description of the mass at the time of each examination, including location, size, fixed or moveable, and whether it was hard or soft. We also question the client about all conversations with doctors to learn what information was provided about the history of the mass.

  Dave Morris recently settled a breast cancer lawsuit pending in Jackson County, Missouri. We claimed the defendant general practitioner was negligent in waiting approximately one year before a biopsy was performed. Although mammograms were ordered by the defendant, they were not diagnostic because of the density of the breasts. The radiologist advised the defendant to rely on his clinical judgment. Despite the increase in size of the mass reported by our client, the defendant continued to diagnose it as fibrocystic disease. The defense argued that the delay made little, if any, difference in prognosis. The lawsuit was settled for $265,000.

• Handling the Problem of the Undefended Phantom Under the Kansas Comparative Negligence Statute
  
• Mike Hoffman Elected President of KCALA
  
• Home Health Care Lawsuit Settled
  
• Claim for Nonpecuniary Loss Waived in Head-On Collision Settlement
  
• Breast Cancer Litigation Issues
  
• Trial by Fyre: Adventures of Jack Fyre - Litigator
  

  It is often difficult for plaintiffs' counsel to decide which potentially responsible parties to join as defendants, and which to leave out. It is always risky not to sue any potentially responsible party because of the "phantom defendant" provisions available to the defense under Kansas law. K.S.A. 60-258a (1991 Supp.) These provisions allow the defendant to ask for a comparison by the jury of the fault of so-called "parties" who are not served, joined or represented in the action, i.e., phantoms. The defendant in every case has an incentive to invoke the comparative negligence statute, because any percentage of fault assigned to such phantom defendants becomes a proportional reduction in the amount of the verdict recoverable against the defendant. To compound plaintiffs' problems, phantom defendants are routinely undefended. So, if for strategic reasons the plaintiff does not take up the defense, the percentage of fault assigned to phantom defendants is likely to be inflated.   Why would a plaintiff choose to omit any potentially responsible party from the suit? What strategies can be employed to take advantage of the phantom defendant situation? A plaintiff might not want to initially join a potentially responsible party because of a close relationship, lack of insurance coverage, immunity of the third party (as in the case of an employer or a governmental entity), a stronger and more appealing theory of liability against a primary defendant, or an honest belief that all parties who should legitimately be sued have been joined in the case.   When the comparative negligence statute is invoked with regard to phantoms, consider joining such parties in the action through a motion for leave to amend the petition to add a "conditional claim" against the phantom party. The plaintiff in this situation should simply adopt the defendant's allegations of fault as the basis for joining the new defendant "conditionally," the condition being the defendant's successful prosecution of the defendant's allegations of fault. In other words, the plaintiff should make no affirmative allegations of fault against the phantom defendant. The new defendant is joined "conditionally" solely for the protection of the plaintiff's interest in full recovery in the event a percentage of fault is assessed by the jury against the joined party. Having initiated the allegation of fault, the defendant is hardly in a position to complain about this maneuver. The plaintiff may consider an offer to withdraw the conditional allegations if the defendant will withdraw the affirmative allegations of fault and take the phantom out of the jury's consideration all together.   There are many advantages to the conditional claim. First, the burden of proof will clearly fall on the defendant as the party making the affirmative allegation of fault. Second, it is always helpful to the plaintiff if the defendant is casting blame about. Third, many avenues for advantageous argument are opened to plaintiff when the defendant points the finger of fault. Fourth, the otherwise undefended phantom is now represented and might be induced to help with the plaintiff's claim against the original defendant. Fifth, additional insurance coverage may be available. Sixth, it is possible to enter into a settlement with the phantom defendant before trial without risking reference during the evidence or argument to the fact that the plaintiff ever made a claim against the phantom, or accepted any money from the phantom in settlement (See Lytle v. Stearns, 250 Kan. 783, 830 P.2d 1197 (1992)). Finally, any money accepted in settlement against the phantom is not a credit against the ulhmate liability of the real defendant.   Caveats: (1) file your case early so that this strategy can be played out before the statute of limitations bars joinder of the phantom defendant, and (2) get an early deadline for the defendant to assert any allegations of comparative fault. This can be done with interrogatories directed toward any general allegations of comparative fault, followed up by a request to the court to impose a deadline made during the scheduling conference, or at the pretrial conference.

  Dave Morris recently settled a lawsuit against Kimberly Quality Care, Inc., which claimed negligent home health care caused the death of a Johnson County, Kansas woman. Although medical services for a patient at home may be identical to those delivered in a hospital, the organization of a home health care provider and its procedures for delivering services may be quite different from a hospital.

  In Fishman v. Kimberly Quality Care, Inc., we claimed that the home health care nurse failed to follow the proper procedure when replacing the tracheostomy tube for the decedent, who had been a ventilator-dependent home health care patient for approximately two years. We also claimed the nurse had not been properly trained and supervised.

  When conducting discovery on a home health negligence claim, plaintiff should request production of all procedure manuals, records of the patient's care and evaluation, and all communications with the health insurer. In addition, documents establishing procedures for training and supervision should be requested because they may show nursing skills were not tested. Also, for any negligent nurse, request all portions of the personnel file that have as their subject evaluations, training, and hours worked. Such documents may disclose reprimands, lack of testing, or excessive hours of work.

  If evidence suggests there has been negligent training or supervision, then a nurse with supervisory experience in the home health care field should be retained as an expert. Such an expert can explain how home health care providers operate and the standards customarily applied to their services.

  The decedent in our case was ventilator-dependent, and the wrongful death claim was subject to current Kansas damage caps. We obtained a settlement of $350,000 for the surviving spouse and two adult children.

  On May 3, 1991, a 44-year old stockbroker was killed in a vehicular collision at the intersection of Shawnee Mission Parkway and Mission Road in Fairway, Kansas. Vic Bergman and John Farisi represented all the heirs at law, including the surviving wife and her two children, ages 4 and 6, and the two children from the decedent's first marriage, ages 18 and 21.

  The incident occurred when the driver of a commercial van, who was employed by a local heating and cooling contractor, lost control, veered across the center line and collided head-on with the decedent's car, resulting in almost instant death. The action initially was brought against the driver of the van and his employer, who claimed in their defense that another car, traveling immediately ahead of the van, abruptly slowed down to turn into a driveway without giving any prior indication or signal. They claimed this negligent maneuver forced the van to swerve to the left to avoid a rear-ender, causing the van to go out of control, resulting in the collision.

  On the basis of the defendants' allegations, the driver of the car that made the alleged abrupt slowing and turning maneuver was served with process and joined in the case by an amended petition as a "conditional defendant." An early separate settlement was reached with this defendant for his policy limits of $100,000. The case then proceeded against the van driver and his employer, and two weeks before trial settlement was reached with them for policy limits of $1.5 million, for a total settlement of $1.6 million.

  The case was brought under the pecuniary loss provisions of the Kansas Wrongful Death Statute, with the claim for nonpecuniary loss waived. (See SJBM Newsletter, Vol. 1, No. 2, October 1992, p. 4, for rationale.) There was no claim for conscious pain and suffering of the decedent. The plaintiffs' economist projected roughly one million dollars in potential future financial contributions by decedent to his heirs after deduction for personal consumption and reduction to present value; the defense economist projected roughly $600,000 of such damages. The remainder of the settlement was paid in recognition of the intangible elements of pecuniary loss claim under the survival statute recoverable under Kansas law.