Opinion
No. 24037 and 24160
November 26, 2001
Appeal From Circuit Court of Greene County, Hon. Henry W. Westbrooke, Jr.
Monte P. Clithero and Warren E. Harris, for Appellant.
Lincoln J. Knauer, Douglas R. Richmond and Michael L. Matula, for Respondent.
Opinion
This is a personal injury case, grounded in negligence principles, in which John Letsinger ("Plaintiff") seeks reversal of summary judgments rendered in favor of two defendants, Drury College ("Drury") and Beta Iota House Corporation ("Beta Iota"). Plaintiff was injured when another Defendant, Joe Lee Daniel ("Daniel"), entered a fraternity house located on Drury's campus and shot Plaintiff. The summary judgments are reversed and the cause is remanded for further proceedings.
When we refer to Drury and Beta Iota collectively, we call them "Defendants."
STANDARD OF REVIEW
A motion for summary judgment will be granted if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Rule 73.04(c)(3). On appeal from a summary judgment, this court reviews the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). This court does not defer to the trial court's judgment granting summary judgment because our review is de novo. Id. at 376[14]. Moreover, "[t]he key to a summary judgment is the undisputed right to a judgment as a matter of law; not simply the absence of a fact question." Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo.App. 1995).
FACTS
Drury owned real estate in Springfield, Missouri, upon which was located a building used as the Kappa Alpha fraternity house ("K.A. house"). Plaintiff, who had enrolled as a student at Drury for the summer semester of 1997, moved into the K.A. house in mid-May 1997 and was living there on May 31, 1997, when Daniel (who was not a student at Drury) entered through the front door and shot Plaintiff.
The background of the shooting incident follows. Earlier that night, a telephone call came to the K.A. house regarding some girls who had been visiting there. Plaintiff, who had only briefly met the girls, spoke with the caller and ultimately told that person to either shut up or come over and fight. Plaintiff became upset when the caller used the phrase "put a cap in your ass[,]" which Plaintiff understood was a reference to shooting a gun. After the conversation, Plaintiff became nervous about what was going to happen and as a consequence, Plaintiff tried to close and lock the front door of the K.A. house. He found, however, that although "the door could be closed completely, [it] would not latch and would pop open after [Plaintiff] let [it] go."
After trying to lock the door, Plaintiff went to the "interior landing of the K.A. house and stood on the first set of stairs for approximately ten minutes." While in that location, Plaintiff saw the front door open and two men enter the K.A. house. Plaintiff then took a couple of steps toward the men and asked," What's up?" Thereon, Daniel (whom Plaintiff did not know and had never seen before) pulled a gun from behind his back, uttered an oath, and shot Plaintiff.
Plaintiff's petition, which sounded in negligence, alleged, inter alia, that pursuant to an agreement between Drury and Beta Iota, Drury had the duty to "properly maintain and repair" the K.A. house, "including, but not limited to, the front door, and to insure that basic security of its occupants and integrity of the building were maintained." Plaintiff alleged Drury breached that duty and such breach was the proximate cause of his injuries. Additionally, Plaintiff alleged "Beta Iota, as lessee [of Drury], had a duty to properly maintain and repair the building and insure the basic security of its occupants . . . if . . . Drury . . . failed to do so." He further alleged Beta Iota breached such duty, and its breach was also a proximate cause of his injury.
The agreement between Defendants mentioned in Plaintiff's petition was dated April 4, 1968. Drury and Beta Iota recited in the contract that their goal was "to improve the housing facilities for male students of Drury College and particularly for members of Kappa Alpha Order." To achieve this goal, Beta Iota was to convey the K.A. real estate to Drury and raise $28,000 for Drury's use in building a fraternity house on the subject property. In turn, Drury was to provide $112,000 in construction funds and build the K.A. house. When completed, Drury was to lease the K.A. structure to Beta Iota for a thirty-year term. The occupancy provision provided, inter alia, that "members of Kappa Alpha Order shall have first opportunity for occupancy thereof, subject to the policy of Drury College as to the approval of occupants of fraternity houses." The "room rental" for each occupant was to be "determined by [Beta Iota] and approved by the fiscal officer of [Drury]." Further, the rent was to be set sufficiently high to pay the following: (1) Beta Iota's annual obligation on Drury's $112,000 advance of construction funds, (2) the K.A. house's utility bills and insurance costs, (3) "all maintenance, repairs and capital improvements made upon the premises during the term of this lease, with respect to all of which the decision of [Drury] shall be final[,]" and (4) any taxes imposed on Drury because of its ownership of the K.A. house and receipt of rentals therefrom. Under the contract, Drury was empowered to collect room rentals directly from the K.A. house occupants.
Within the Drury/Beta Iota contract there was a maintenance paragraph which provided:
"9. Maintenance: [Drury] agrees to maintain the premises in a good state of repair, interior and exterior, within the limits of the reserve maintained for such purposes and within the discretion of [Drury] as to the need for repair, maintenance expenses and capital improvements, except that [Beta Iota] is required to make any repairs, including glass breakage, which may be necessary because of damage resulting from gross negligence, or wilful, intentional or malicious acts."
Another paragraph provided that "[Drury] and the authorized representatives of [Drury] shall have the right to enter the leased premises at all reasonable times to examine the condition thereof, but . . . not . . . in a manner to interfere unreasonably with the occupation by [Beta Iota]."
After extensive discovery, Drury and Beta Iota filed motions for summary judgments which the trial court sustained. The judgments thus entered expressly found "no just reason for delay." This appeal by Plaintiff followed. Additional facts are given as necessary to analyze the points raised by this appeal.
DISCUSSION AND DECISION
In a negligence case, a plaintiff must establish (1) the existence of a duty on the part of a defendant to protect plaintiff from injury, (2) failure by defendant to perform that duty, and (3) the defendant's failure proximately caused injury to plaintiff. Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 155 (Mo.banc 2000). "Whether a duty exists is purely a question of law." Id. at 155[2] (citing Aaron v. Havens, 758 S.W.2d 446, 447 (Mo.banc 1988)).
Here, Defendants urged the trial court to enter summary judgments for them on the theory that there existed undisputed material facts which showed Defendants had no duty to protect Plaintiff from this type of harm, i.e., an intentional criminal act by Daniel. Defendants also argued that even if they had a duty to maintain and repair the K.A. house, Plaintiff could not show that a breach of such duty proximately caused Plaintiff's injuries. The trial court, in entering the judgments, did not disclose which one or more of these arguments it accepted; consequently, the issues implicated on appeal are those of duty and proximate cause.
Plaintiff concedes that as a rule a defendant has no duty to protect another person from a deliberate criminal attack by a third person. Stubbs v. Panek, 829 S.W.2d 544, 546 (Mo.App. 1994). However, an exception to this general rule attends when: (1) a landlord-tenant relationship exists between two parties; and (2) "other 'special circumstance[s]' [are present] warranting, as a matter of policy, the shift of responsibility for the tenant's security from the tenant to the landlord." Vittengl v. Fox, 967 S.W.2d 269, 275 (Mo.App. 1998). In the landlord-tenant exception analysis, "it is not the foreseeability of crime in general, but the existence of special circumstances, which gives rise to the duty [in a landlord] to provide security" for the tenant. Kopoian v. George W. Miller Co., Inc., 901 S.W.2d 63, 74 (Mo.App. 1995). "Special circumstances" in this context means evidence which shows the risk of being attacked was increased by some action or failure of the landlord; that the landlord's action or inaction presented the criminals with a "'particular focus or unique opportunity for . . . their criminal activities.'" Id. at 74[13] (citation omitted).
Plaintiff's Points I and IV urge this court to reverse the summary judgments based on his view that genuine issues of material facts remain which must be resolved in order to determine whether Drury, or Beta Iota, or both, owed a duty of security to Plaintiff based on the landlord-tenant exception. Here, unlike most cases, there are disputes about whether a landlord-tenant relationship existed, and if so, who was a tenant and who was a landlord.
In general terms, the relation of landlord and tenant is that which "arises from a contract by which one person occupies the real estate of another with his permission and in subordination to his rights[.]" Marden v. Radford, 84 S.W.2d 947, 954 (Mo.App. 1935). The essentials of a landlord-tenant relationship are: (1) a reversion in the landlord; (2) the creation of an estate in the tenant either at will or for a term less than that which the landlord holds; (3) the transfer of exclusive possession and control of the premises, or a portion thereof, to the tenant; and (4) a contract, either express or implied, between the parties. Hill v. Eads, 970 S.W.2d 882, 883 (Mo.App. 1998); Friend v. GEM International, Inc., 476 S.W.2d 134, 137-38 (Mo.App 1971).
This record contains no written contract or other evidence of an express agreement between Plaintiff and Drury, or between Plaintiff and Beta Iota, which clearly defines the relationship between the respective parties. Stated otherwise, nothing is before us from which we might find, as a matter of law, whether the character of Plaintiff's occupancy was that of tenant, or lodger, or licensee, or something else. However, as explained below, that is not fatal to Plaintiff's case.
A landlord-tenant relationship may arise by either express or implied contract, Marro v. Daniels, 914 S.W.2d 16, 18 (Mo.App. 1995), and "upon slight evidence." Delay v. Douglas, 164 S.W.2d 154, 156[5] (Mo.App. 1942). Whether the relationship created by the hirer of rooms in the house of another be that of tenant, lodger, guest, licensee, or otherwise, depends upon the contract of hiring, gathered from its terms and interpreted in the light of surrounding circumstances. Marden, 84 S.W.2d at 955[8]. Moreover, the character of such relationship is ordinarily a mixed question of law and fact to be determined by the jury under proper instructions of the court. Id. See also Environmental Waste Mgmt. Inc. v. Indus. Excav. Equip., 981 S.W.2d 607, 611 (Mo.App. 1998) (holding interpretation of an oral contract, or one partly in writing, is for jury). Here, the record is replete with conflicting and contradictory evidence that must be resolved to decide if a landlord-tenant relationship existed, and if so, who was the landlord. As an example, there was conflicting evidence about who collected rent from K.A. house occupants. Plaintiff's affidavit recited he was to "pay $60 to the fraternity to live in the [K.A.] house during the summer semester." Contrarily, Drury employees Parker and Sweeney testified the "fraternity" set the room rate for K.A. house occupants, but Drury billed and collected the rent from each occupant. Moreover, the Drury-Beta Iota lease provided for Drury to collect rent from K.A. house occupants. Contradictory evidence also existed about who made occupancy decisions for the K.A. house. The Drury/Beta Iota contract provides that Drury's "policy" governs the approval of K.A. house occupants. Testimony that Drury would not allow non-K.A. students or K.A. freshman to live in the K.A. house was consistent with the contract language. On the other hand, there was evidence that if Drury received more applications from persons who wanted to live in the K.A. house than there were spaces, it was the "fraternity officer" and alumni advisers who decided that occupancy question. Additional confusion regarding ultimate control over occupancy arises from evidence that K.A. alumni advisors decided whether K.A. members could live in the K.A. house during summer months.
Under certain circumstances, courts will presume a landlord-tenant relationship exists. See Marden , 84 S.W.2d at 955[9]. Marden involved an occupant paying rent to another for a kitchenette apartment and contains an excellent analysis on the subject of this type of relationship.
Yet another example was the conflicting and contradictory evidence regarding what documents existed relating to K.A. house occupants. Drury employee Sweeney, who had supervisory authority over student housing, testified Drury provided two forms for students to sign regarding residency in a fraternity house. The first simply required the student to indicate where he or she wanted to live, i.e., on or off campus. The second form required those who opted for fraternity housing to designate which fraternity they chose. At one point, Sweeney referred to these forms as merely "applications" which were part of the student registration process, and at another time referred to a "one page-contract" prepared by Drury that was filled out "prior to moving in that's really a part of the registration process." On the other hand, Sweeney had general knowledge of the fact that many of the fraternities on Drury's campus made their own contracts with the occupants of their houses regarding policies, fees, periods of residency, and related matters. Sweeney was unsure whether such a contract existed for K.A. house occupants. This and other evidence in the record shows there are material issues of fact about whether a landlord-tenant relationship existed for K.A. house occupants, and if so, who was the landlord.
We turn now to the question of the duty, if any, owed by Defendants to Plaintiff, assuming arguendo, that a landlord-tenant relationship is found to exist with either or both Defendants. Plaintiff's first and fourth points maintain the trial court erred in entering summary judgment for Defendants because there were genuine disputes about material facts which, when resolved, would determine whether Drury, Beta Iota, or both, owed a duty to Plaintiff. To support his argument, Plaintiff relies heavily upon Aaron, 758 S.W.2d 446 and Stubbs, 829 S.W.2d 544.
In Aaron, the plaintiff was assaulted in her apartment by a man who gained access via a fire escape. The plaintiff alleged in her petition that the landlord knew or should have known the fire escape was in such a dangerous condition that a criminal intruder could gain easy access to her apartment. The Aaron court found the fire escape was part of the common premises under the landlord's control and held "[t]here is no logical reason why a dangerous condition of common premises, proximately causing injury on private premises, could not be the occasion for liability." 758 S.W.2d at 447. The Aaron court's holding was based on the landlord-tenant relationship, the landlord's control of the dangerous common premises, and the danger of unauthorized entry from common premises into private premises. Id. Specifically, Aaron applied the rule that "the owner of an apartment building has a recognized duty to use care to make common premises safe, as against foreseeable risks." Id. at 447[2] (emphasis supplied). Aaron also stands for the proposition that courts are to determine foreseeability from all the circumstances of the case, without strictly adhering to the requirement that the landlord have knowledge of prior violent crimes on the premises. See Kopoian, 901 S.W.2d at 70.
In Stubbs, a child was abducted at night from a rented house while her parents slept. The criminals gained silent access to the house through a door with a defective lock. The child's parents sued the landlord and alleged the landlord was negligent in his responsibility to maintain the door and lock. A summary judgment favorable to the landlord was reversed on appeal. There was evidence of a gap between the jamb and the door wide enough for a person's finger to fit; the gap made it possible to unlock the door with a comb, credit card, or common screwdriver; the tenants were told they could not repair the door on their own; and the tenants were specifically not allowed to put a deadbolt or chain lock on the door to make it more secure. Based on this evidence, the court found a submissible case was made, thus implicitly finding the landlord had a duty to exercise ordinary care to keep a door lock over which he retained control in a reasonably safe condition. 829 S.W.2d at 546.
In Kopoian, 901 S.W.2d at 69, 70, the western district analyzed the Aarons and Stubbs decisions as follows:
"[W]e read Aaron as holding that the landlord's allegedly reckless enhancement of the ordinary risks of criminal assault constituted a special circumstance upon which liability could be based."
. . . .
"Stubbs is a decision involving a duty based on sound policy considerations. If locks have any purpose at all beyond security, we are not aware of such purpose. It is certainly no surprise to landlords that they have a legal duty to respond to the tenant's request for the provision of a functioning door lock. And the duty relates specifically to the foreseeability of a silent, unlawful entry. Any landlord taking the approach of the landlord in Stubbs should know that it is engaged in a serious flirtation with liability."
(Emphasis supplied.)
Here, there is evidence the door through which Daniels entered the K.A. house, and the lock thereon, had malfunctioned several times before May 31, 1997, and some of Drury's maintenance personnel had recommended replacement of the exterior doors. Even so, neither the K.A. house doors nor the locks had been replaced by the time of the shooting.
The door replacement recommendation was made in early 1997 by John W. Miller, Sr. ("Miller"), Drury's physical plant director, and by Ronald Snider ("Snider"), a locksmith and carpenter, who worked for Drury. Evidence in that regard included the following. Before January 1997, Snider had received "continual work orders" for repair on the K.A. house's exterior doors. Because of the repeated work orders, Snider had procured bids for replacing the K.A. house's doors, but as of January 22, 1997, no action had been taken on those bids. On January 22, 1997, Miller received a "work-order request form" which reported that the "[f]ront door [of the K.A. house] does not open from inside when shut completely." As a result, a "top priority" work order was given to Snider. When Snider responded, he found the K.A. house door "would not open from the inside with the panic bar" because a "bolt that holds a cam in place, had backed off." In Snider's report to Miller about his repair effort, he wrote: "It's patched for now. Needs new door." Snider explained his report thusly: "I [did]n't feel like it [was] going to hold up. It need[ed] replacement." Continuing, Snider testified the K.A. house doors "would not secure every time" and "were abused and wore [sic] out[.]" Accordingly, Snider's "new door" recommendation included "everything," i.e., the door and lock mechanism. As Snider further explained: "I felt like [putting new doors in] would eliminate some of the work orders."
Miller's duties included overseeing maintenance, repair, and improvement of physical facilities at Drury, including the K.A. house.
Snider's duties included repairing and replacing doors and locks on Drury campus buildings.
As Miller explained it, when a work request was received by his department, it was assessed for priority, i.e., "life and safety" issues got top priority.
Snider explained that the door would not "secure every time" because "[w]hen the door close[d], the latch would not enter the strike of the door" and thus, "would prevent the door from locking."
After Snider made his report to Miller in January of 1997, he (Miller) instructed Snider to tell "Chip" Parker, the K.A. house alumni advisor, of the need for new K.A. house doors. When Miller was asked why he did not authorize this improvement without talking to Parker, Miller answered: "[T]he KAs would be paying for it, and it was going to be a significant expense. I don't like to blind-side anybody."
Evidence about the relationship between alumni advisors and Beta Iota came from Parker and included the following: "[T]he house corporation was also probably put as a label onto the alumni advisors . . . because we tried to . . . make sure that the house was full and the maintenance and the upkeep and things like that, and so we worked with them as well."
Snider then got two new bids for replacing the K.A. house doors and gave copies thereof to Miller. Next, Snider talked to Parker telling him the K.A. house doors needed to be replaced and advised him of the cost. After some time passed without getting a response from Parker, Snider had a follow-up conversation with Parker about the need for new K.A. house doors. According to Snider, he still got no definite answer from Parker regarding the door replacement question; consequently, he told Parker to contact the "physical plant" about his decision. Later, Snider documented his visits with Parker by placing the following notation in Drury's file: "I Ron Snider talk [sic] with Chip Parker on two different occasion about the necessity of new doors to replace all 3 entrance of this KA building. Prices were discussed from previous bid to replace them."
Apparently, Snider documented his conversation with Parker at the request of Miller. Miller testified he wanted it documented because "it dealt with a life and safety issue . . . and I didn't want to rely on my memory."
On the other hand, the alumni house adviser, Parker, testified that when given the bids, he complained to Snider that "they were high and expensive" and commented, "Well, can we continue to repair them at this point." Also, Parker testified the K.A. house "alumni advisory committee" decided against door replacement due to the expense and because "[w]e . . . felt . . . we were told . . . [the doors] could still be pieced together and . . . would still lock and still function as they put them back together, and we felt at the time [the doors] . . . were okay."
Earlier, we provided details of Drury's contract with Beta Iota, i.e., Drury was to maintain the K.A. house (except for damages caused by gross negligence or wilful, intentional, and miscellaneous acts for which Beta Iota was responsible) and Drury retained access rights to make inspections. The contract provisions and testimony that Drury maintenance personnel were frequently in the K.A. house to make repairs, including exterior door repair, provide evidence from which a trier of fact could infer that K.A. house occupants such as Plaintiff had surrendered their rights to exclusive possession and control of the "common area" of the K.A. house, including the front door and its lock assembly. See Stubbs, 829 S.W.2d at 547.
Likewise, we have recounted in some detail the evidence that K.A. house doors were not reasonably safe in late 1996 and early 1997, i.e., they were "abused and wore [sic] out" and "would not secure every time." Moreover, there was evidence from which a trier of fact could infer that Drury and Beta Iota knew of the need to replace K.A. house doors as early as January or February 1997, yet nothing was done as of May 31, 1997, to preclude silent access to this building via these allegedly defective doors. Under these circumstances, we find the following comments from Kopoian particularly apropos, that is, "[c]rime is a possibility and a threat at all times and in practically every place" and even properly functioning locks "may not keep people out[.]" 901 S.W.2d at 73[14]. Even so, locks "make it more difficult for burglars to gain access efficiently and silently." Id. at 73-74.
Based on Aaron, Stubbs, and Kopoian, we hold that if Drury was Plaintiff's landlord, then Drury's allegedly reckless enhancement of the ordinary risks of criminal activity constitutes a special circumstance upon which liability can be imposed on Drury. Id. at 70. The same is true for Beta Iota. Specifically, if Plaintiff is found to be a tenant of Beta Iota, then Beta Iota's alleged reckless enhancement of the risk of harm to Plaintiff by not timely putting up doors with functional locks comprises a special circumstance upon which liability can be imposed on Beta Iota. Genuine issues of material facts exist here which must be resolved in order to determine if Drury, or Beta Iota, or both, owe a duty of security to Plaintiff based on the landlord-tenant exception. Accordingly, we find merit in Plaintiff's Points I and IV.
We turn now to Points III and V of Plaintiff's brief in which he challenges as erroneous the trial court's implicit finding that there was no factual basis to support a finding of proximate cause. Proximate cause falls under the third prong of a negligence claim, i.e., determining if Plaintiff's injuries were due to Defendants' failure to execute their duty. M.C. v. Yeargin, 11 S.W.3d 604, 613 (Mo.App. 1999).
"Proximate cause requires something in addition to a 'but for' causation test because the 'but for' causation test serves only to exclude items that are not causal in fact; it will include items that are causal in fact but that would be unreasonable to base liability upon because they are too far removed from the ultimate injury or damage."
Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo.banc 1993).
"The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence." Krause v. United States Truck Co., 787 S.W.2d 708, 710 (Mo.banc 1990). This test has been called a "look back" test, that is, proximate cause is determined by looking back, after the occurrence, and examining whether the injury appears to have been a reasonable and probable consequence of the negligent conduct, Tompkins v. Cervantes, 917 S.W.2d 186, 190 (Mo.App. 1996); yet an element of foreseeability also exists in this analysis since the resulting injury must be "natural and probable." Callahan, 863 S.W.2d at 865[9]. If the resulting "damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant's actions." Id. at 865. An occurrence that interrupts the actions caused by a defendant's negligence may be an intervening resulting cause, in which event there is a new and independent event that becomes the "responsible, direct, proximate cause of the injury." Vann v. Town Topic, Inc., 780 S.W.2d 659, 661 (Mo.App. 1989).
Proximate cause is a question normally decided by the trier of fact, especially where "reasonable minds could differ as to causation on the facts of the case." Williams v. Missouri Hwy. and Trans. Comm., 16 S.W.3d 605, 611 (Mo.App. 2000). However, a court may decide the issue "'when the evidence reveals the existence of an intervening cause which eclipses the role the defendant's conduct played in the plaintiff's injury.'" Yeargin, 11 S.W.3d at 613 (quoting Tompkins, 917 S.W.2d at 186, 190).
With "proximate cause" thus explained, the issues here are whether (1) on looking back, after the shooting, could reasonable minds differ about whether the shooting of Plaintiff appeared to be a "reasonable and probable" consequence of Defendants' failure to replace a defective door on this fraternity house; and (2) in the exercise of reasonable diligence, could Defendants have foreseen or should they have foreseen that some type of injury to K.A. house occupants was a "natural and probable" consequence of their failure to replace allegedly defective doors on the K.A. house? We answer "yes" to these questions and conclude that a fact-finder — not this court — should make the initial decision as to whether Daniel's actions were "surprising, unexpected, or freakish."
In so stating, we have not ignored Defendants' arguments that the "trash talking" between Plaintiff and Daniel, the threats they exchanged with one another, and Plaintiff's ignoring of Daniel's threats were unforeseeable events, wholly beyond Defendants' control, and, consequently, recovery should not be allowed for "so attenuated a chain of causation." However, Missouri courts have rejected similar arguments when the possibility of some injury from intervening criminal acts is reasonably foreseeable. As explained in Gaines v. Property Servicing Co., 276 S.W.2d 169 (Mo. 1955), for a jury issue to exist about proximate cause, it is not necessary that the party charged "should have anticipated the very injury complained of or anticipated that it would have happened in the exact manner that it did. All that is necessary is that some injury might have happened." Id. at 174[7].
There is ample evidence in this record to support the view that Defendants knew or should have known there was an appreciable chance of some injury to the K.A. house occupants if intruders could freely enter the K.A. house at night without the impediment of locked doors. Such evidence is found, for example, in Drury's "1996 Safety and Security Information Report" and its assurances about exterior door security for campus buildings. The report advised that exterior doors of Drury's student residence halls are locked 24 hours a day, they are "accessible from 7:00 a.m. to 1:00 a.m. by card access[,]" outside doors on "campus buildings are secured and rechecked by security officers on a nightly basis[,]" and a "comprehensive survey of doors and locks [are conducted] on an annual basis" for the purpose of ensuring that "each exterior door and its locking mechanisms are working properly." Drury's director of security, Jeffrey Simpson, testified the door lock security practices outlined in the report were routinely followed by Drury employees. Although Drury employees Miller and Snider testified they never foresaw or envisioned anyone coming into the K.A. house and shooting one of its occupants, they characterized non-functioning locks as a "life and safety issue" and assigned top priority to work orders for exterior door repair. K.A. house advisor Parker testified that as early as 1992, door locks and handles were on the list of things needed to bring the K.A. house "up to date." Also, the K.A. house had a "policy" or "bylaw" that required the house be locked down each night and then opened at 8:00 a.m. Even so, Parker explained "it was difficult . . . to effectively control a group of students of the age that you typically find in [a] college house." In that regard, K.A. house advisors and Drury officials knew, long before this incident, that frequent alcohol consumption and female visitations were occurring at the K.A. house.
From this and other evidence in the record, we conclude that proximate cause is a jury question here; that although Defendants may not have foreseen the "trash talk," the challenges to fight, and Plaintiff's refusal to flee or call for help, there is evidence from which a jury could find Defendants knew or should have known that some injury was likely, under ordinary circumstances, to follow from Defendants' alleged negligent acts. Earlier, we held that genuine issues of material fact remain about the following: (1) whether Plaintiff was a tenant of Drury or Beta Iota, or both, and (2) whether Drury or Beta Iota, or both, enhanced the ordinary risk that K.A. house occupants might be injured by intruders by failing to supply adequate locks to safeguard the K.A. house after suitable notice of the defect. If these contentions are found in favor of Plaintiff, then Drury or Beta Iota, or both, might be liable even though intervening criminal acts occurred. On this record, summary judgment cannot be granted based on Daniel's intervening criminal acts. Plaintiff's Points III and V have merit.
Due to our reversal on these issues, we need not and do not reach the issues raised by Plaintiff's Point II which argues a school-student relationship existed creating a duty of security in Drury.
The trial court erred in granting summary judgments in favor of Defendants. We reverse and remand.