Phelps v. Bross
73 S.W.3d 651, 2002 WL 171324, 2002 Mo. App. LEXIS 247 (2002)
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Rule of Law:
A defendant may be liable for assault if their conduct creates a reasonable apprehension of imminent offensive contact in the plaintiff, even if the plaintiff was unconscious during the initial act and only became apprehensive upon waking. Additionally, an employer may assume a legal duty to protect an independent contractor from third-party criminal acts if it creates a 'special relationship' through specific assurances of safety and control over transportation.
Facts:
- Golden Eagle Distributing Co., through its president Richard Riesenbeck, hired Catherine Phelps as an independent contractor 'Budweiser Girl.'
- Riesenbeck explicitly informed Phelps that Golden Eagle would provide mandatory transportation to and from events and that company employees would always be present to ensure her safety and prevent harassment.
- At a golf tournament where Golden Eagle provided complimentary alcohol, Phelps was assigned to a group including Jeff Bross and Greg Church.
- After the tournament, Phelps expressed discomfort and cited company rules when Riesenbeck, over her objections, instructed her to ride with Bross and Church instead of on the company bus.
- Riesenbeck threw Phelps's duffel bag off the bus and ordered her to go with the men, and the bus departed without her.
- Bross and Church took Phelps to Bross's home, where she was given a beer and subsequently lost consciousness.
- Phelps awoke hours later, naked in a bed, with a fully clothed Bross lying awake next to her.
- Terrified, Phelps fled the house naked to a neighbor's home to call the police. Greg Church later admitted to having sexual intercourse with Phelps, which she stated was non-consensual.
Procedural Posture:
- Catherine Phelps filed a multi-count petition in a Missouri trial court against Jeff Bross, Greg Church, Richard Riesenbeck, and Golden Eagle Distributing Co.
- Defendants Bross, Riesenbeck, and Golden Eagle each filed motions for summary judgment.
- The trial court granted the motions for summary judgment in favor of Bross, Riesenbeck, and Golden Eagle, dismissing the claims against them.
- The trial court denied the motion for summary judgment filed by defendant Church.
- Phelps, as appellant, appealed the trial court's grant of summary judgment in favor of Bross, Riesenbeck, and Golden Eagle (appellees) to the Missouri Court of Appeals.
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Issue:
Did the trial court err in granting summary judgment by finding no genuine issue of material fact as to whether: 1) a defendant's act of lying in bed next to an unconscious and naked plaintiff constitutes assault, and 2) an employer who gives specific assurances of safety and transportation assumes a legal duty to protect an independent contractor from third-party criminal acts?
Opinions:
Majority - Robert G. Dowd, Jr.
Yes, the trial court erred in granting summary judgment on the assault and negligence claims because genuine issues of material fact exist. For the assault claim against Bross, the court reasoned that an assault is an act that creates a fear of imminent peril. Phelps's testimony that she was 'terrified' upon waking to find herself naked in bed with Bross is sufficient evidence of apprehension of offensive contact. The defendant's intent to cause such apprehension can be inferred from the circumstances of his conduct, such as getting into bed with an unconscious and undressed person. For the negligence claim against Riesenbeck and Golden Eagle, the court found that while there is generally no duty to protect another from a third party's criminal act, an exception exists for a 'special relationship.' By making explicit oral assurances of safety and requiring Phelps to use company transportation, Golden Eagle assumed a duty to protect her. Riesenbeck's act of forcing Phelps, over her objections, to ride with Bross and Church created a genuine issue of material fact as to whether this duty was breached and if that breach was the proximate cause of her injuries. The court affirmed the summary judgment on the battery claim against Bross, as there was no evidence he touched Phelps or acted in concert with Church.
Analysis:
This decision clarifies the scope of civil assault in Missouri, affirming that the plaintiff's apprehension of harm need not be contemporaneous with the defendant's initial conduct; waking into a threatening situation created by the defendant is sufficient. More significantly, the case expands the 'special relationship' doctrine beyond traditional categories like innkeeper-guest. It establishes that a duty to protect from third-party criminal acts can be voluntarily assumed through specific promises and control, even in an independent contractor relationship, making it more difficult for companies to disclaim liability after making explicit safety guarantees.
