United States Court of Appeals For the First Circuit
No. 19-1754
JEFFREY BOUDREAU, as Personal Representative of the Estate of Wendy Boudreau,
Plaintiff, Appellant,
v.
SHAW'S SUPERMARKETS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
Laura H. White and Bergen & Parkinson, LLC on brief for appellant. Heidi J. Eddy, Elizabeth G. Stouder, and Richardson, Whitman, Large & Badger on brief for appellee.
April 10, 2020 LYNCH, Circuit Judge. On August 19, 2015, Connor
MacCalister attacked and killed Wendy Boudreau with a knife in the
ice cream aisle of the Saco, Maine Shaw's Supermarket. Both Wendy
Boudreau and MacCalister were regular customers of the Saco Shaw's.
MacCalister later confessed that she went to Shaw's intending to
kill someone and chose Wendy Boudreau because she was elderly and
would be unable to fight back.
Two years later, Jeffrey Boudreau, Wendy Boudreau's
husband and the executor of her estate, sued Shaw's in federal
court asserting wrongful death and conscious pain and suffering
under Maine law. Boudreau asserted that Shaw's owed a duty to
protect its patrons from foreseeable harm and that MacCalister's
attack was foreseeable. He further argued that Shaw's breached
this duty by failing adequately to monitor the store and that this
breach was the proximate cause of Wendy Boudreau's death. In a
separate count, he alleged that Shaw's' breach caused Wendy
Boudreau conscious pain and suffering. The district court entered
summary judgment for Shaw's, concluding that Shaw's did not owe a
duty under Maine wrongful death law to protect Wendy Boudreau from
this attack by MacCalister because it was not foreseeable.
Boudreau v. Shaw's Supermarkets, Inc., No. 2:17-cv-259, 2019 WL
3242051, at *1, *14 (D. Me. July 18, 2019). We affirm.
- 2 - I.
A. Facts
We recount the facts in the light most favorable to
Boudreau and draw all reasonable inferences in his favor. Roy v.
Correct Care Sols., LLC, 914 F.3d 52, 57 (1st Cir. 2019).1
1. The Saco Shaw's
The Saco Shaw's is a grocery store located in downtown
Saco, Maine that serves around 15,000 customers per week.2 It is
one of the biggest Shaw's in Maine. The Saco Shaw's served "a
very, very diverse clientele with a lot of walkers with backpacks."
The store has two front entrances, one on each side of
the store. When a customer enters the store, the produce section
is on the far left and the floral department is on the far right
of the store. The ice cream aisle is closer to the side of the
store with the floral department.
The management personnel of the Saco Shaw's changed
several times between 2009 and 2015. John DeRoche was the store
manager from 2009 to 2014. An interim manager served for a few
months in mid-2014 until Bryan Goodrich took over as the manager
1 We describe the testimony and incidents involving MacCalister primarily relied upon by Boudreau. For additional detail, we refer the reader to the district court's decision. 2 Shaw's conceded at the district court that the knowledge of its employees may be treated as its own knowledge.
- 3 - around November 1, 2014. Goodrich was the Saco Shaw's manager at
the time of Wendy Boudreau's murder.
2. MacCalister's Interactions with Shaw's Employees and Customers Before the August 2015 Attack
Connor MacCalister frequently visited the Saco Shaw's in
the years before the murder of Wendy Boudreau. DeRoche recalled
first seeing MacCalister in the Saco Shaw's in 2010 or 2011. He
stated that the first time he saw her he was "a little shocked"
because of her "really baggy clothes" with a "chain down on her
side" and her "shaved head." During his time at Shaw's, DeRoche
never saw MacCalister behave violently, raise her voice, or
carrying a weapon at any time inside the Saco Shaw's. He had no
knowledge of her acting strangely in the Saco community.
On May 24, 2011, more than four years before the murder
of Wendy Boudreau, two customers complained to DeRoche that
MacCalister had scared them outside as they entered the store.
MacCalister had been standing outside of Shaw's by the entrance,
smoking discarded cigarettes out of an ashtray and blowing smoke
rings from underneath a hood that partially covered her face.
DeRoche promptly went outside to investigate the complaints, saw
MacCalister, and recalled that "it looked like something out of a
scary movie." DeRoche stated that usually MacCalister "just looked
weird" but on that day "she looked scary" and "frozen."
DeRoche acted on the complaints by calling the police.
- 4 - He told the police, "can you tell this person I don't want her
here anymore." The police conveyed to MacCalister that she was
banned from the Saco Shaw's. The police also told DeRoche that
they had interacted with MacCalister before, that she lived nearby
with her mother, and that "her mother is crazier than she is."
For a year following this incident, MacCalister was not permitted
to shop at the Saco Shaw's.3
A year later in mid-2012, MacCalister called DeRoche and
asked if she could return to Shaw's. DeRoche did not realize
MacCalister was the caller until he later saw her in Shaw's and
asked what she was doing there. MacCalister told DeRoche that she
had called to ask if she could come back. DeRoche told her that
she could return if she did not "cause any problems."
After the May 2011 incident, DeRoche requested that the
Shaw's Loss Prevention Department watch MacCalister because she
"look[ed] suspicious," but he had never heard any complaint that
she shoplifted. In response to the request, Loss Prevention told
DeRoche that they had watched her before and she had "never taken
3 Boudreau also relies on several phone calls referenced in the affidavit of a Saco police dispatcher. The dispatcher stated that "[a]fter MacCalister was banned, [he] took dispatch calls from employees of Shaw's who noted that MacCalister had returned to the premises and they were concerned." We understand these calls to be evidence of Shaw's employees enforcing the ban against MacCalister. As to the several other calls referenced in the record, we agree with the district court's decision to disregard them because they do not specifically reference MacCalister.
- 5 - anything." Loss Prevention continued to watch her "a couple more
times" but never observed her shoplifting. Nor did they observe
any other concerning behavior by her. Warren McCourt, a Shaw's
Asset Protection Specialist, also observed MacCalister about four
or five times between 2012 and 2014. He stated that her behavior
never seemed unusual. McCourt observed MacCalister come into the
store, purchase product, and leave.
After the 2011 smoking incident, there were no further
customer complaints to DeRoche about MacCalister and no
observations by Shaw's employees of MacCalister engaging in scary
or concerning behavior. DeRoche specifically stated that "[n]o
one ever said a word to [him] about feeling uncomfortable with her
in the store or being afraid of her" and that he "didn't have any
fear of [his] safety or any of [his] employees' safety when she
was in the store."
Goodrich stated that after becoming manager in 2014, "no
one ever reported anything to [him] about MacCalister" and he never
saw her behaving strangely. Adam Veno, Shaw's assistant store
director who started six weeks before the murder, stated that he
never saw MacCalister in the store.
Joan Doyle worked as a cashier at the Saco Shaw's from
1997 through 2015. She typically worked midday shifts and
estimated that she had seen MacCalister "probably four times" in
the Saco Shaw's before 2015. When asked what stood out to her
- 6 - about MacCalister, Doyle stated "[w]hat she was wearing," which
Doyle described as usually a "camouflage outfit." Doyle stated
that MacCalister was "very quiet, never said anything" in response
to Doyle's greetings, and that this was "pretty unusual for
customers." She never heard that MacCalister had bothered a
customer. Doyle had heard rumors that MacCalister shoplifted but
never observed this herself. She also never observed MacCalister
act violently or even speak, nor had she ever seen MacCalister
outside of the Saco Shaw's.
Michelle Schaffer worked for Shaw's as a customer
service representative beginning in 2011. She estimated that she
had seen MacCalister "multiple" times between 2011 and 2015 and
stated that MacCalister came into the store "quite often." She
described MacCalister as dressing in baggy clothes that were "all
black, [with] big jackets, [a] hood . . . [and] dark, black
makeup." Schaffer stated that MacCalister's eyes were "big from
time to time" and she would "just look at you" in a way that made
Schaffer think that she was "on something." Sometimes MacCalister
came into the store "shaking." Schaffer stated that "if somebody
saw the same thing that [Schaffer] saw," they would think that
"something is up with [MacCalister]" but that this was not "out of
the norm" in downtown Saco. She stated that she thought
MacCalister's appearance and demeanor may have made "some people
probably [feel] threatened" and be "a little bit more on guard"
- 7 - but that she had never witnessed any threatening behavior by
MacCalister. She explained that there were "moments" where she
"felt probably uncomfortable" or "awkward" around MacCalister but
that MacCalister "never did anything directly towards [her]."
Schaffer had heard rumors that MacCalister shoplifted
but never observed MacCalister shoplifting. She had seen
MacCalister "a couple times" outside of the Saco Shaw's but never
saw her behaving strangely. She also never saw MacCalister with
a knife inside the Saco Shaw's, nor had she ever witnessed
MacCalister act violently or raise her voice.
Brittani Wood worked as a Shaw's cashier beginning in
2013. In 2015, she worked shifts during the "late evening[] into
the night" and she recalled seeing MacCalister "[q]uite
frequently" at Shaw's and sometimes "more than once in a day."
Wood observed MacCalister wearing baggy pants, military clothing,
and a backpack and with a shaved head, which Wood described as
"strange." She never observed MacCalister carry a weapon, appear
angry, or "yell or lunge at another customer." Wood had not heard
any rumors that MacCalister shoplifted and stated that MacCalister
always bought something when she entered the Saco Shaw's. In her
interactions with MacCalister, Wood stated that MacCalister "would
acknowledge you were talking to her; but she wouldn't really, like,
speak." Wood stated that MacCalister was "quiet" and "shy." Wood
had heard customers make comments such as "what's with her or she
- 8 - seems weird" when referring to MacCalister but no customer ever
made a report about MacCalister to Wood.
In the weeks before Wendy Boudreau's murder, MacCalister
had several interactions with customers at the Saco Shaw's. These
interactions were not reported to Shaw's except as we explicitly
note, and even then, they were not reports made to supervisors but
verbal comments made to a cashier. The rest of the statements we
describe were only made at depositions after this suit started.
First, Debra Surran stated she went to Shaw's in June or
July 2015 and estimated she was in the store for about forty-five
minutes. While shopping, Surran saw MacCalister at the end of the
aisles she was shopping in three separate times, as if MacCalister
were following her. MacCalister was not going down the aisles and
did not have a cart, which Surran thought was "a little strange."
When Surran went to check out, she noticed that MacCalister had
gotten in line directly behind her. Surran stated that "Connor
was glaring at me, like she really wanted to hurt me" and she
looked angry and her jaw was tight. Surran was scared so she
grabbed a nearby cart and placed it between herself and MacCalister
until MacCalister checked out and left the store.
Before leaving, Surran told Michelle Lavoie, the cashier
with whom both MacCalister and Surran checked out, that "there's
something wrong with that girl." Lavoie stated "no, no, Connor
comes in here all the time. She's fine." Surran repeated that
- 9 - "there's something wrong with her" and whispered to Lavoie that
MacCalister scared her.4 Surran did not talk to any other Shaw's
employee about the incident.
Lavoie stated that she was familiar with MacCalister and
recalled that she had seen her "occasionally from time to time" in
the years before 2015. Lavoie was also familiar with Surran and
stated that she often waited on Surran at Shaw's. When asked about
the incident, Lavoie could only recall that Surran was "not
thrilled with Connor" based on her "interpretation of [Surran's]
body language." Lavoie explained that with her regular customers,
she "can tell sometimes if they're having a good day." She stated
that "with my years of experience, [I think I would have] picked
up if [Surran] was uncomfortable. I didn't pick up on body
language that she was on defensive." Lavoie stated that she did
not report the incident to a manager because "it would need
something more than just [her] own gut instinct that there was
something more going on." She explained that:
[i]f I'm not seeing anything out of the norm and I'm not getting anything from the customer . . . that there was a problem, I'm not going
4 Surran stated in her affidavit that she "whispered to the cashier . . . that [she] was scared of MacCalister." But later at her deposition, she did not include this fact when recounting what happened. Counsel for Shaw's asked her if she said anything else to Lavoie and Surran stated, "No. That was it." Counsel for Shaw's confronted Surran with her affidavit and Surran stated, "[i]t's basically the same thing, yeah." Like the district court, we assume favorably to Boudreau that Surran did whisper to Lavoie that MacCalister scared her.
- 10 - to go any further than what I normally would, other than to wait on her, check her out, and thank her for shopping with us.
In early August 2015, Katherine Corriveau rode her bike
to the Saco Shaw's. She saw MacCalister sitting under a tree at
the back entrance to the Shaw's plaza. As Corriveau passed, she
made eye contact with MacCalister, who was wearing sunglasses.
She stated that she "got the willies" and her "alarm bells went
off" because MacCalister looked "angry," had a "set jaw," and stood
up as Corriveau passed. As Corriveau locked up her bike, she saw
MacCalister walking with a "determined gait" toward Shaw's.
Corriveau entered the store and about five minutes later, she saw
MacCalister about ten feet away from her in the ice cream aisle.
Corriveau felt as though MacCalister was following her and "feared
for [her] safety" so she went to another aisle. Within a short
time, MacCalister appeared in the same aisle. Corriveau then went
to the produce section and again saw MacCalister. Corriveau lost
track of MacCalister while she finished shopping. She went to
check out after spending about thirty minutes at the most in the
store and saw MacCalister ahead of her at a different register.
MacCalister purchased a Coke and left the store. Corriveau did
not tell any Shaw's employee about the incident.
About a week before the murder, Cindy Belanger, another
Shaw's customer, noticed MacCalister while waiting in the Shaw's
checkout line. MacCalister was "laughing and talking" in a group
- 11 - of people on the other side of the store. Belanger stated that
when MacCalister noticed Belanger looking at her, MacCalister
turned her body, put her arms back, and "lunged" at Belanger
without moving her feet while yelling "rah." Belanger could not
hear MacCalister well because she was "too far away." The act
scared Belanger and she "took it as a threat." She stated that
other customers saw the gesture, but that no Shaw's employee seemed
to see it. Belanger checked out, left the store, and did not
report the incident to a Shaw's employee.
3. MacCalister's Behavior on the Day of the Attack
On August 19, 2015, MacCalister visited Shaw's two
separate times. Her first visit was around 12:00 p.m. and did not
provide cause for concern to Shaw's. She wore army fatigues,
sunglasses, and a backpack, and she did not use a shopping cart.
She checked out with Doyle and purchased a gallon of milk and a
couple of other items. Doyle stated that MacCalister "kind of
gave [her] a little smirk when [she] was handing her the receipt"
but that she "didn't think too much of it at the time." MacCalister
left the store and sat on the ground, almost on the automatic door
sensor, for about five minutes. There is no evidence any Shaw's
employee observed this behavior.
Around 3:00 p.m., Wendy Boudreau entered Shaw's, as did
MacCalister for the second time that day. Two Saco EMTs, Jerry
and Armand Beaulieu, were shopping in the store at this time.
- 12 - Armand stated that he and MacCalister "passed each other in the
same area a couple of times." He did not "think anything
different" about her behavior and stated that she appeared to be
shopping. Jerry described MacCalister's behavior as "walking the
back row, like she was looking for something . . . she kept going
back and forth." He stated that she did not look angry, just that
"she was in a hurry, looking for something."5
About ten minutes after 3:00 p.m., MacCalister
approached Wendy Boudreau, who was alone in the ice cream aisle.
She walked up behind Wendy Boudreau and stabbed her multiple times.
Wendy Boudreau screamed and that caught the attention of another
customer, who pinned MacCalister to the ground. A Shaw's employee
who had also gone to investigate the screams attempted to help
Wendy Boudreau. Wendy Boudreau was transported to a hospital but
did not survive.
MacCalister was arrested by the Saco Police and taken to
the Saco Police Department. The police interviewed her around
5:20 p.m. She confessed that she went to Shaw's intending to kill
someone. She chose Wendy Boudreau because she was "in the open
with no one around [and] couldn't fight back." MacCalister stated
5 Boudreau asserts that two individuals in the security footage of the minutes leading up to the attack are Shaw's employees. Like the district court, we assume in the plaintiff's favor that these two individuals were Shaw's employees and so could have observed what the two EMTs observed.
- 13 - that she always carried two knives in her pockets. There is no
evidence that the knives were visible to a Shaw's employee before
the attack.6
B. Procedural History of the Litigation
Jeffrey Boudreau filed this lawsuit against Shaw's as
the personal representative of Wendy Boudreau's estate in federal
court on July 10, 2017, alleging causes of action for wrongful
death and conscious pain and suffering under Maine law. He alleged
that Shaw's "owed a duty of care to protect its patrons from
foreseeable risks of harm on its premises," that Shaw's breached
this duty by failing to "adequate[ly] monitor its premises or use
existing security measures to protect Shaw's patrons," and that
this breach was the proximate cause of Wendy Boudreau's death as
well as her pain and suffering.
Shaw's moved for summary judgment, arguing that Wendy
Boudreau's murder was not foreseeable because Shaw's had no reason
to foresee that MacCalister would violently attack another
customer. Shaw's also argued that there was no evidence that even
if Shaw's had watched MacCalister or tried to interact with her,
as Boudreau asserted that it should have, that this would have
6 Boudreau also relies on MacCalister's medical records, her history with the police, and observations of her behavior outside of the Saco Shaw's to support his argument. As the district court correctly stated, there is no evidence in the record that Shaw's knew about these facts, or that Shaw's should have known any of this information.
- 14 - prevented the attack.
The district court, in a detailed analysis of the
undisputed facts, entered summary judgment for Shaw's, holding
that Shaw's did not owe a duty to Wendy Boudreau under Maine law
because it was not reasonably foreseeable that MacCalister was a
danger to other customers. See Boudreau, 2019 WL 3242051, at *1.
The district court explained that despite MacCalister's various
interactions with Shaw's employees and customers, she had never
been violent at Shaw's and had never displayed her knives at
Shaw's. Id. at *12. Further, Shaw's had no knowledge, nor any
ability to learn, of MacCalister's behavior outside of Shaw's.
Id. Concluding there was no duty under Maine law, the district
court did not reach the issue of proximate cause. Id. at *14-15.
Boudreau timely appealed.
II.
We review the district court's grant of summary judgment
de novo. River Farm Realty Tr. v. Farm Family Cas. Ins. Co., 943
F.3d 27, 36 (1st Cir. 2019). Summary judgment should be granted
when "the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(a). As a federal court sitting in
diversity, we apply Maine substantive law. See River Farm Realty
Tr., 943 F.3d at 36.
- 15 - A. Shaw's Did Not Owe a Duty to Protect Wendy Boudreau from MacCalister
Boudreau argues that the district court erred in holding
that Shaw's did not owe a duty to protect Wendy Boudreau from harm
from MacCalister. He asserts that he is entitled to a jury trial
on this issue, arguing that it is a question of fact. He further
contends that it was foreseeable that MacCalister would harm
another customer, "if only Shaw's had been paying attention."
Finally, he relies on Shaw's' purported violation of its own loss
prevention policies to argue that Shaw's owed, and breached, a
duty to Wendy Boudreau. We address each argument in turn and
conclude that each fails.
First, Boudreau's argument that he is entitled to a jury
trial on the issue of duty fails. "Even though the issue is fact
driven, the question of duty is a legal question decided by the
court, not the jury." Brown v. Delta Tau Delta, 118 A.3d 789, 791
(Me. 2015). Boudreau confuses the issue of whether Shaw's owed
Wendy Boudreau the duty alleged with whether, assuming such a duty
existed, Shaw's breached that duty. The issue of breach is a
question of fact, Lewis v. Knowlton, 688 A.2d 912, 914 (Me. 1997),
but whether a duty exists in the first place is a question of law
that we may resolve at summary judgment, see Denman v. Peoples
Heritage Bank, Inc., 704 A.2d 411, 413 (Me. 1998) (affirming no
duty holding on summary judgment in premises liability case).
- 16 - We turn to Boudreau's primary argument on appeal: that
Shaw's owed Wendy Boudreau a duty because MacCalister's attack was
foreseeable. Under Maine law, for "[a] proprietor of an inn,
hotel, motel, restaurant, or similar establishment [to be] liable
for an assault upon a guest or patron by another guest, patron, or
third person," the proprietor must "[have] reason to anticipate
such assault." Kaechele v. Kenyon Oil Co., 747 A.2d 167, 170 (Me.
2000) (quoting Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 651
(Me. 1972)). "A proprietor must guard its patrons against not
only known dangers but also those which it 'should reasonably
anticipate.'" Id. at 171 (quoting Brewer, 295 A.2d at 651). The
defendant need not be able to foresee "the exact nature of the
injury which in fact occurred . . . if some harm was reasonably
foreseeable under the circumstances." Schultz v. Gould Acad., 332
A.2d 368, 370 (Me. 1975). So, the question here is whether Shaw's
"[knew], or should . . . have anticipated, that [MacCalister]
would assault a patron on the evening in question." Kaechele, 747
A.2d at 171.
We agree with the district court's conclusion that
Maine's law of premises liability is clear that the harm must have
been foreseeable. Because we conclude that MacCalister's attack
was not foreseeable, we need not address the policy element of
Maine's duty analysis. See Brown, 118 A.3d at 792 (stating that
- 17 - the duty analysis "is a multi-factored analysis that necessarily
evokes policy-based considerations").
Kaechele does not support Boudreau's argument that
MacCalister's attack on Wendy Boudreau was foreseeable. In
Kaechele, the plaintiff presented evidence to show that his assault
by another customer of the same convenience store was foreseeable.
Kaechele, 747 A.2d at 169. Before the assault, store employees
observed the attacker yell obscenities for fifteen minutes, slam
the store door, and pound on the store window. Id. Another
individual in the store suggested the police be called but no call
was made. Id. The Maine Supreme Judicial Court concluded that
these facts sufficiently established that the attack was
foreseeable. Id. at 173.
There is no such evidence here. Shaw's first observed
MacCalister in early 2010 or 2011, more than four years before the
murder. In May 2011, two customers complained about MacCalister
because she was standing outside of the Saco Shaw's smoking
discarded cigarettes. Shaw's promptly called the police and had
MacCalister removed from the store premises. The police barred
MacCalister from the Shaw's and told Shaw's that they had
interacted with her before but provided no further details.
During MacCalister's ban, Shaw's employees called the
Saco police to enforce the ban against her. After MacCalister
returned from the ban in 2012, DeRoche requested that Loss
- 18 - Prevention watch MacCalister to ensure that she was not
shoplifting. McCourt observed MacCalister four or five times
between 2012 and 2014 and never observed her acting strangely or
shoplifting. Other employees had also heard rumors MacCalister
shoplifted but they never saw her shoplifting either.
Between 2010 and 2015, Shaw's employees observed
MacCalister in the Saco Shaw's wearing baggy, black or camouflage
clothing and with a shaved head. She rarely spoke to them and
they described her as "weird," "strange," "quiet," and "shy."
Schaffer recalled that MacCalister sometimes exhibited "big" eyes.
She thought that MacCalister's appearance and demeanor might make
some people feel "threatened" but she had only felt "uncomfortable"
or "awkward." In 2015, Wood had heard customers make comments
such as "what's with her" and "she seems weird." In June or July
2015, Surran told Lavoie that "something's wrong with
[MacCalister]" and that she was scared of MacCalister.
On the day of the murder, August 19, 2015, MacCalister
entered Shaw's twice. The first time, she purchased several items,
gave Doyle a "smirk" while checking out, and then sat for five
minutes nearly on the automatic door sensor. She then returned to
Shaw's three hours later and walked back and forth in the aisles.
These facts did not make it foreseeable that MacCalister
posed a danger to other customers. As to the smoking incident,
Shaw's acted promptly in seeking police help to deal with the
- 19 - situation. Further, this incident occurred four years before the
murder and there was no intervening concerning behavior from
MacCalister between that incident and the summer of 2015.
The only other information provided to Shaw's about
MacCalister by a customer was Surran's statement to Lavoie, a
cashier, in June or July 2015. Surran told Lavoie that
"something's wrong" with MacCalister and that MacCalister scared
her. But Surran did not report MacCalister's actions to a
supervisor, she did not request that the store do anything about
the incident, and she did not provide Lavoie with any particulars
about what MacCalister had done. People are scared of many things
short of violent physical attacks. Further, Lavoie was familiar
with both Surran and MacCalister and explained that based on her
experience as a cashier, she would have picked up on the fact that
a customer was uncomfortable or defensive. But here she did not.
These facts did not make MacCalister's attack foreseeable.
Indeed, no Shaw's employee ever saw MacCalister act
violently, raise her voice, or threaten someone in the Saco Shaw's.
Nor was Shaw's aware of MacCalister's behavior outside of Shaw's.
The fact that MacCalister's appearance was perceived as "strange,"
that Schaffer felt "awkward" or "uncomfortable" around her, and
that MacCalister rarely responded when spoken to did not make her
violent attack on another customer foreseeable. Weird clothing
and affect were not uncommon among the store's many customers.
- 20 - As to shoplifting, Shaw's investigated and saw none, so
shoplifting provides no basis for any theory that violent behavior
is associated with shoplifting. And since there was no evidence
of shoplifting, that provides no basis for any theory of an
obligation to do continuous surveillance.
MacCalister's actions on the day of the murder also do
not establish that it was foreseeable that she was a danger to
other customers. The fact that she gave a "smirk" to the cashier
and sat in a strange place for five minutes before leaving does
not forecast a violent attack. Further, walking back and forth is
not out of the ordinary in a grocery store.
Even assuming favorably to Boudreau that a Shaw's
employee should have observed the incidents involving Corriveau
and Belanger, neither made it foreseeable that MacCalister was a
danger to other customers. As to the incident with Corriveau,
MacCalister did not threaten, or even speak, to Corriveau. To a
reasonable observer, MacCalister would have appeared to be
shopping the Saco Shaw's by walking across the store from the ice
cream aisle to the produce section. As to the incident with
Belanger, even if Belanger considered the "lunge" to be a threat,
MacCalister was across the entire store and did not get any closer
to Belanger. These facts do not make the violent assault of
- 21 - another customer foreseeable.7
Boudreau seems to argue further that Shaw's' internal
policies and procedures for deterring shoplifting gave rise to a
legal duty to abide by those policies, and that the store's alleged
failure to do so constituted a breach of duty. He highlights the
fact that the store's Loss Prevention Specialist Manual instructs
associates to watch individuals wearing baggy clothing or clothing
that is inappropriate for the weather, individuals who carry
backpacks, those who do not have hand baskets or carriages, and
those who linger in the store, even if the suspected shoplifter is
never seen shoplifting. The policy advises associates to "[g]reet
customers" and "[o]ffer assistance to customers" in order to deter
shoplifting. Boudreau emphasizes that the manual states that
7 Boudreau analogizes his case to Mu v. Omni Hotels Management Corp., 882 F.3d 1 (1st Cir. 2018). But not only does that case apply Rhode Island law, it does not support his theory. Id. at 5. In Mu, the court reversed a grant of summary judgment to the defendant-hotel, concluding that a jury could find that the plaintiff's harm, which was caused by an angry mob on the hotel's premises, was foreseeable. Id. at 9-12. The court pointed out that prior to the attack, the mob had been thrown out of the hotel for causing a disturbance, returned to the hotel the same night, fought among themselves, and then attempted to fight a passerby by yelling racial slurs, all of which was observed by hotel employees. Id. at 9-10. Here, MacCalister was never seen acting violently or attempting to start a fight and was banned from the Saco Shaw's four years earlier, in contrast to Mu where the attackers were banned the night of the attack. Id. at 4. Gould v. Taco Bell, 722 P.2d 511 (Kan. 1986), is similarly distinguishable because the attacker, a patron of Taco Bell who attacked another customer, had been involved in a similar altercation two weeks earlier. Id. at 514.
- 22 - shoplifters can "create a serious risk for customers and
associates" and "[s]hoplifters may be armed, under the influence
of drugs, violent or pose other risks."
Boudreau's reliance on Shaw's' purported violation of
its own loss prevention policies is misplaced. He has provided no
authority for the proposition that the store's internal
shoplifting policies created a duty under Maine law that the store
must watch every customer suspected of shoplifting to ensure that
they do not violently attack other customers. Maine law is clear
that for a duty to be imposed, the harm must be foreseeable, and
here it was not. Further, Shaw's did watch MacCalister and there
is no basis to think that any deviations from the policy
foreseeably would cause harm to customers.8
B. The District Court Did Not Err in How It Viewed the Facts
Boudreau separately argues that the district court
failed to resolve genuine disputes of fact in his favor by
disregarding the following facts: that "police specifically told
. . . DeRoche they had a history with" MacCalister, that "employees
of Shaw's called the Saco PD to report they were concerned about
[MacCalister] being in the store," that DeRoche's "scary movie"
comment could mean that he believed MacCalister had a propensity
8 As the district court stated, Shaw's' loss prevention policies may be relevant to causation. But as Shaw's did not owe a duty here, we need not reach this issue.
- 23 - for violence, that Schaffer stated some customers felt threatened
by MacCalister's demeanor, and that Surran may have told a Shaw's
cashier that she was "stalked" by MacCalister.
This argument fails. The district court was required to
take the record in the light most favorable to Boudreau but that
does not mean that it was required to draw inferences that lacked
factual support. Each fact that Boudreau has singled out as being
inappropriately resolved in the defendant's favor was accurately
recounted by the district court and based on the record.
First, as to what the police told DeRoche, the district
court correctly recounted that DeRoche stated that the police did
not say "anything specific at all" to him about MacCalister. As
to the phone calls involving the Saco police, the district court
appropriately disregarded the calls that were too broad to be tied
to MacCalister and did consider the police dispatcher's statements
about the two calls made by Shaw's. Next, in making the "scary
movie" comment, DeRoche made no reference to violence. So, the
district court did not err by stating that no one at Shaw's stated
that they believed MacCalister was violent. Further, the district
court did not "overlook" Schaffer's comment but rather accurately
described how she thought some people "probably felt threatened"
by MacCalister's demeanor and appearance. Finally, the district
court correctly stated that there was no evidence that Surran told
Lavoie that MacCalister "stalked" her.
- 24 - C. Evidentiary Issues
1. The Plaintiff's Expert Witness
Boudreau argues that "it was reversible error for the
district court to overlook the expert witness opinion of Stephen
Melia on summary judgment." He asserts that the district court
erroneously "drew its own conclusions about [Shaw's'] obligations
in the field of loss prevention and retail security."9
Boudreau mischaracterizes the district court's treatment
of Melia's expert opinion. The district court did not draw its
own conclusions about the field of retail security but rather
explained that Melia's opinion about Shaw's' purported breach of
retail security protocols was not relevant to the duty analysis
under Maine law. As said, there is no authority for the
proposition that a store's own loss prevention policies give rise
to a duty absent foreseeability.
Boudreau also asserts that "Melia testified that Shaw's
owed a duty to prevent [MacCalister] from causing harm to
customers" and that the district court should have accepted this
conclusion. It is not clear that Melia's opinion makes such a
claim, as its primary focus seems to be that Shaw's violated
standard retail security procedures, not that such procedures
9 We assume that the evidence considered at summary judgment was admissible as it does not change our conclusion that Shaw's did not owe Wendy Boudreau a duty.
- 25 - created a legal duty under Maine law. But even if Melia's opinion
makes such a claim, Boudreau's argument would fail because the
presence of duty is a legal question to be resolved by the court,
not an expert. Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99
(1st Cir. 1997).
2. Spoliation
At the district court, Boudreau moved for sanctions
against Shaw's for spoliation of evidence consisting of the
security camera footage from the store for the weeks leading up to
the murder.10 He sought "a permissive negative inference, both on
summary judgment and before the jury" about the contents of the
footage. The district court applied Rule 37(e), which states that
"upon finding prejudice to another party from loss of the
information, [the court] may order measures no greater than
necessary to cure the prejudice." Fed. R. Civ. P. 37(e)(1). The
district court was "doubtful there [was] any prejudice" because
"[a]t most, the missing video might [have] provide[d] images of
what certain customers say they observed about MacCalister at
Shaw's before the day of the murder." The court then stated that
it would "assume that MacCalister was in the store virtually every
day, and that she always dressed the same way and exhibited the
10 The parties learned of the footage's existence after the 2018 deposition of McCourt. When McCourt was asked to retrieve the footage, it could not be located.
- 26 - same mien . . . [and] that she had encounters with customers as
they describe[d] the encounters" and that this would "cure[] any
prejudice."
We review the district court's denial of sanctions for
abuse of discretion. See Sharp v. Hylas Yachts, LLC, 872 F.3d 31,
41-42 (1st Cir. 2017). We see none. The district court followed
the guidance in the advisory committee notes for assessing
prejudice and evaluated the missing video's importance to the
litigation by concluding that at most, it "might provide images of
what certain customers say they observed about MacCalister."
Further, as the district court stated, even if the video showed
what Boudreau argues it could have shown, summary judgment still
would have been appropriate because the incidents involving
Corriveau and Belanger did not make MacCalister's attack
foreseeable, even if they had been observed by Shaw's employees.11
Affirmed.
11Boudreau asserts that the video would show "who was telling the truth" in the interaction between Surran and Lavoie. This argument is meritless because the statements of Surran and Lavoie are not contradictory.
- 27 -