"You better stop moving," he told her as he anchored his knee deeper into her stomach. Just a few feet outside the Ward Parkway Shopping Center, steps away from a door that read "Emergency Exit," the attacker pinned his victim to the ground and overpowered her.
When he finished, he ordered her to quit crying and to wipe the sweat from her face and arms. "You better not say anything to nobody," he warned. Then they walked back through the door he had pushed open some twenty minutes before, when she was slung over his shoulder and calling for help.
But no one had come to her rescue, and whether that places Ward Parkway mall in a position of negligence is a question that now sits before the Missouri Supreme Court.
The girl's attorneys argue that the mall had a responsibility to protect customers after more than sixty criminal incidents occurred there between June 1994 and March 1997, when the rape occurred. Thirty-three incidents name women as victims, and thirteen involve sexual offenses ranging from remarks to physical attacks.
But none of the prior incidents was reported as a rape, and according to lawyers for the mall and its security company, IPC International Corp., that protects Ward Parkway from any claim of negligent security in the 1997 attack on the girl.
"The mall says you actually had to have a rape occur," says Michael Ketchmark, attorney for the girl. He argues that mall managers were negligent by not improving security while crimes multiplied.
A judge disagreed, however, and originally dismissed the lawsuit. But on April 17, 2001, a Missouri court of appeals ruled that the nature and number of prior incidents could translate into negligence and ordered the trial to go forward. The mall since has appealed to the Supreme Court.
Lawyers for the mall and its security company did not return phone calls from the Pitch, but court documents explain the mall's position that blame should rest on the perpetrator alone. The girl's attacker, a juvenile, was found guilty in the crime.
"Simply put, crime is the responsibility of criminals," wrote IPC attorney Douglas Richmond in a motion opposing a new trial.
The lawsuit cites general grievances with mall security (lack of cameras, limited staff, no alarm on the emergency exit) and the specific allegation that two security guards were notified of the assault as it occurred but did nothing.
The appeals court ruling comes at a poor time in the mall's history. Mall representatives are aiming to revamp the structure and dispel notions that the 42-year-old shopping center, under new ownership since 1998 (Cincinnati-based Madison Marquette), is in a business rut.
"What we're ending up creating is kind of a hybrid," says Danielle Short, Ward Parkway leasing representative. "It's going to be part enclosed mall, part entertainment center and part power center." A new Target could be the defining feature of the "power center," lingo for the giant strip malls that sometimes develop around major retailers. Short is hopeful that 24 Hour Fitness and Fred Meyers Jewelers also will move in soon.
But at the moment, empty storefronts litter the mall. The lower level looks particularly sad since AMC theaters closed its six downstairs screens (fourteen screens remain on the upper level). Both former and current shopkeepers say the mall is in trouble. And some believe management has pushed out smaller businesses while striving for a vision that, as of yet, hasn't blossomed.
When the owner of a Deck the Walls store died last year, employee Matthew Jolly bought the shop's inventory and attempted to take over the lease. But he says mall representatives never returned his calls. Eventually, he opted to move out and open his own custom framing shop, The Artist Tree, in a spacious corner spot in Waldo.
"It seems like all the small business owners in that mall have kind of been run out by increasing rents and just unprofessional behavior on the part of the mall management," Jolly says.
"The mall was not a high-traffic mall," says another former tenant who wished to remain anonymous. "There were a couple major stores that were supposed to come in and didn't. We were anticipating those moves [when we moved in]."
Short offers a different story, saying the mall values all of its tenants and has offered to reduce several stores' rent to help them deal with struggling sales.
"We're at the point where all these other tenants aren't in yet," she says. "Target isn't open yet. So we have to do everything possible to keep the [tenants] we have, and that's exactly what we've tried to do."
Mall representatives, tenants and residents in the area all say the mall feels safe and that security is not one of its major problems. Lawyers for the mall and its security company hope to prove the same was true in 1997. Failing that, they maintain in one court document that the requirements of a security guard are even more lax than one might imagine:
"A landowner and its agent have no general duty to protect an invitee from a deliberate criminal act by a third person. Likewise, a security guard has no general duty to rescue a patron in distress."