Schweitzer v. Wal-Mart Stores, Inc.

861 So. 2d 747, 2003 WL 22909159
CourtLouisiana Court of Appeal
DecidedDecember 10, 2003
Docket03-727
StatusPublished
Cited by1 cases

This text of 861 So. 2d 747 (Schweitzer v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schweitzer v. Wal-Mart Stores, Inc., 861 So. 2d 747, 2003 WL 22909159 (La. Ct. App. 2003).

Opinion

861 So.2d 747 (2003)

Shelby SCHWEITZER
v.
WAL-MART STORES, INC., et al.

No. 03-727.

Court of Appeal of Louisiana, Third Circuit.

December 10, 2003.

*748 Elvin C. Fontenot, Jr., Leesville, LA, Leslie R. Leavoy, Jr., DeRidder, LA, for Plaintiff/Appellee/Appellant: Shelby Schweitzer.

Philip A. Fontenot, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendant/Appellant: Wal-Mart Stores, Inc.

Court composed of NED E. DOUCET, JR., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.

SULLIVAN, Judge.

Wal-Mart Stores, Inc. appeals a $100,000.00 judgment in favor of Shelby Schweitzer for injuries she sustained when two individuals attempted to abduct her from the parking lot of its Leesville store. Ms. Schweitzer seeks an increase in damages. For the following reasons, we reverse the judgment of the trial court.

Facts

In January 1997, Wal-Mart began operating its Leesville store twenty-four hours a day. Ralph Clouse, the store manager, was informed of the conversion to a twenty-four hour store in late 1996. In preparation for the conversion, Mr. Clouse met with his district manager and Wal-Mart's district risk management advisor to consider and plan for any additional concerns that would arise with the conversion. Thereafter, he met with Leesville Police Chief, Bobby Hickman, to request increased police patrols at night. Chief Hickman assured Mr. Clouse that he could provide patrols every thirty minutes or less. In connection with the police patrols, Mr. Clouse arranged for the police officers to park their units at the front of the store and to have coffee, doughnuts, and other refreshments available for them just inside the front of the store to encourage the officers to get out of their units and enter *749 the store. Mr. Clouse also hired an employee to greet customers as they entered and exited the store, had the parking lot light fixtures checked to insure that all were working and had proper bulbs, had the buggy boys wear bright orange vests while retrieving buggies in the parking lot, installed a twenty-four hour surveillance camera over the only entrance/exit door that remained open all night, locked all entrance/exit doors except the one at the front of the store, locked all shipping and receiving doors, and instructed its employees to park away from the front of the store to allow its customers to park as close as possible to the store. All employees, including the "greeter," buggy boys, lawn and garden employees, employees arriving or leaving the store for their shift or lunch, were instructed to report anything unusual or suspicious they saw outside the building.

In the late evening of June 4, 1997, two young men, Jay Longsworth, twenty years old, and Ronald Ross, sixteen years old, went to the Leesville Wal-Mart to "hang-out" for a while. While walking around inside the store, they decided to take a nice car and go joyriding. They exited the store and sat on lawn furniture that was situated on the sidewalk at the front of the store and looked for a car to take joyriding. Longsworth was on probation at the time, having been convicted of burglary and theft as an adult.

At approximately 11:10 p.m., Ms. Schweitzer went to the Leesville Wal-Mart to do some shopping on her way home from work. The young men watched Ms. Schweitzer approach Wal-Mart in her Lincoln Continental and decided they would take her car for their joyride. Ms. Schweitzer entered the parking lot and parked her car under a light as close to the store entrance as possible. As she exited her car, the young men accosted her and forced her into the backseat of her car. Ross pulled out a gun he had concealed under his shirt in the waistband of his pants, and they threatened her with death if she did not cooperate. Longsworth got into the driver's seat; Ross got in the rear seat with Ms. Schweitzer. As Longsworth drove toward the parking lot exit, a Leesville City Police car entered the parking lot on a scheduled patrol. Trying not to attract the police officer's attention, Longsworth slowed the car, giving Ms. Schweitzer the opportunity to jump from the car to safety.

Ms. Schweitzer sued Wal-Mart and Longsworth for damages. She alleged that Wal-Mart failed to provide security for its patrons, failed to properly light the parking lot, failed to provide security guards, failed to take precautionary measures to prevent loitering in the parking lot, and other acts of negligence to be shown at trial. She dismissed her claims against Longsworth the day of trial.

On January 28 and 29, 2002, the matter was tried before a jury, which assessed 16.5% fault to Wal-Mart, 41.75% fault to Longsworth, and 41.75% fault to Ross and awarded Ms. Schweitzer $100,000.00 in general damages. After the trial, the trial court considered whether Ms. Schweitzer's recovery should be reduced to the percentage of Wal-Mart's negligence since her damages were caused by the intentional actions of Longsworth and Ross. Finding Wal-Mart had the incentive and the means to protect its patrons against the actions of would-be intentional tortfeasors, the trial court assessed Wal-Mart with 100% of Ms. Schweitzer's damages. Thereafter, Ms. Schweitzer filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, asserting that Wal-Mart should be assessed with 50% fault and that she should be awarded past medical expenses in the amount $4,229.35. The trial *750 court granted the JNOV, awarded Ms. Schweitzer additional damages in the amount of $4,229.35, representing past medical expenses, and reassessed fault, assigning 50% fault to Wal-Mart and 50% jointly to Longsworth and Ross.

Wal-Mart appeals, assigning eight errors with the jury's assessment of fault and award of damages and with the trial court's reassessment of fault and award of additional damages. Ms. Schweitzer seeks an increase in damages. Finding merit with Wal-Mart's third assignment of error, we reverse the judgment of the trial court.

Discussion

To prevail on her claim against Wal-Mart, Ms. Schweitzer must prove by a preponderance of the evidence: (1) Wal-Mart had a duty to conform its conduct to a specific standard (duty); (2) it failed to conform to do so (breach of duty); (3) its conduct was the cause-in-fact of her injuries (cause-in-fact); (4) its conduct was a legal cause of her injuries (the risk and harm caused to plaintiff was within the scope of the protection afforded by the duty); and (5) she incurred actual damages. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289 (La.1993); Roberts v. Benoit, 605 So.2d 1032 (La.1991); Fowler v. Roberts, 556 So.2d 1 (La.1989). A negative answer to any of the above inquiries results in the determination of no liability. Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318.

Whether a business owner has a duty to protect its patrons from crimes perpetrated on its premises by third parties was considered by the supreme court in Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762. Noting that such a duty only arises under limited circumstances, the court determined that the foreseeability of such a crime is a critical inquiry. Id. The court adopted the following balancing test as the criteria for determining liability in such a case:

The foreseeability of the crime risk on the defendant's property and the gravity of the risk determine the existence and the extent of the defendant's duty.

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Cite This Page — Counsel Stack

Bluebook (online)
861 So. 2d 747, 2003 WL 22909159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schweitzer-v-wal-mart-stores-inc-lactapp-2003.