Walmart, Inc. v. Leigh Ann Reeves

• Court: Kentucky Supreme Court
• Decided: February 15, 2023
• Docket: 2021 SC 0288
• Status: Unknown

Opinion

RENDERED: FEBRUARY 16, 2023 TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0288-DG

WALMART, INC.; WAL-MART ASSOCIATES, APPELLANTS INC.; WAL-MART REALTY COMPANY; WAL- MART STORES, EAST, LIMITED PARTNERSHIP; WAL-MART STORES, INC.; WAL-MART TRS, LLC; WSE MANAGEMENT

ON REVIEW FROM COURT OF APPEALS V. NO. 2020-CA-0679 FAYETTE CIRCUIT COURT NO. 18-CI-00206

LEIGH ANN REEVES APPELLEE

OPINION OF THE COURT BY JUSTICE KELLER

REVERSING AND REINSTATING

Wal-Mart appeals to this Court from the Court of Appeals decision

reversing the trial court’s judgment. Wal-Mart argues that the Court of Appeals

improperly interpreted this Court’s precedent on premises liability for third-

party criminal acts. For the reasons stated below, we reverse the Court of

Appeals and reinstate the trial court’s judgment.

I. BACKGROUND

After midnight on March 22, 2017, Leigh Ann Reeves walked out of the

Wal-Mart on Nicholasville Road in Lexington, Kentucky. Reeves reached her

vehicle safely, but when she sat down in her driver’s seat, she was attacked by

two unknown men attempting to rob her while a third unknown man waited in their getaway car. She was struck twice before a bystander interceded, at

which point her assailants fled. After this attack, Reeves filed suit against Wal-

Mart for failing to protect her from the assault and robbery. Reeves alleged that

Wal-Mart was negligent by not having a security presence outside the store to

protect patrons from third-party criminal acts.

After some discovery, Wal-Mart moved for summary judgment on

Reeves’s claims. To the trial court, Reeves produced police reports from the

Nicholasville Road Wal-Mart as well as Wal-Mart’s own CAP Index, Inc.

Crimecast Report to show that Wal-Mart had a duty to protect Reeves from

third-party criminal acts.1 However, none of the records produced by Reeves

indicated similar crimes close in time to her attack. The trial court therefore

granted Wal-Mart’s motion for summary judgment. The trial court found that

Reeves “has failed to prove that other alleged criminal acts at or near the

Nicholasville Road Wal-Mart were of sufficient character and number to make

this particular act reasonably foreseeable to Wal-Mart.” Accordingly, as a

matter of law, the trial court concluded that “Wal-Mart owed [Reeves] no duty”

and dismissed Reeves’s claims with prejudice.

1 CAP Index, Inc. “provides innovative solutions for companies and government agencies looking to minimize losses,” including those due to general liability and crimes against persons and property. CAP Index, Inc. is used by companies to predict the likelihood of crime in a given area using historic statistical data. Companies then use that prediction to determine what safety measures to implement.

2 Reeves appealed the trial court’s order to the Court of Appeals, which

reversed the decision of the trial court. Wal-Mart sought discretionary review

from this Court, which we granted.

II. ANALYSIS

On appeal to this Court, Wal-Mart argues that the Court of Appeals

improperly extended our holding in Shelton v. Kentucky Easter Seals Society,

Inc., 413 S.W.3d 901 (Ky. 2013) and, in doing so, incorrectly reversed the trial

court’s grant of summary judgment. We agree.

“The standard of review on appeal of a summary judgment is whether the

circuit judge correctly found that there were no issues as to any material fact

and that the moving party was entitled to a judgment as a matter of law.”

Pearson ex rel. Trent v. Nat’l Feeding Sys., Inc., 90 S.W.3d 46, 49 (Ky. 2002). In

ruling on a motion for summary judgment, the Court is required to construe

the record “in a light most favorable to the party opposing the motion . . . and

all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr.,

Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted).

In general, negligence claims require proof that the defendant owed the

plaintiff a duty, that the defendant breached that duty, and that the plaintiff

suffered a harm that was proximately caused by the breach. Illinois Cent. R.R.

v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967) (citations omitted). For premises

liability cases involving third-party criminal acts, the owner of a premises has a

duty to protect patrons from third-party acts if he or she “knows of activities or

conduct of other patrons or third persons which would lead a reasonably

3 prudent person to believe or anticipate that injury to a patron might be

caused,” (in other words, is foreseeable), and if he or she can reasonably

safeguard against them. Napper v. Kenwood Drive-In Theatre Co., 310 S.W.2d

270, 271 (Ky. 1958).

The trial court relied on this rule from Napper to determine that because

the third-party criminal act at issue in this case was not foreseeable, Wal-Mart

had no duty to protect Reeves from it. In reversing, the Court of Appeals

applied this Court’s holding in Shelton v. Kentucky Easter Seals Society, Inc.,

413 S.W.3d 901, which had never been extended by this Court beyond open-

and-obvious conditions. In Shelton, this Court decided that for open-and-

obvious premises liability cases, the foreseeability analysis formerly conducted

under both the duty and breach elements of a negligence claim would instead

apply only to the breach element. Id. at 914 (citation omitted) (“[T]he

foreseeability of the risk of harm should be a question normally left to the jury

under the breach analysis.”). In so holding, this Court reasoned that owners of

premises always have a legal duty due to “the landowner-invitee relationship

and general duty of reasonable care applicable to landowners.” Id. at 908.

Therefore, instead of starting with whether harm caused by an obvious hazard

was foreseeable enough to create a duty, the “analysis will almost always begin

with the breach question, given the broad sweep of the general duty of

reasonable care.” Id.2 The Shelton rule is consistent with the Restatement

2 The Court in Shelton redefined the open-and-obvious negligence analysis as

the following:

4 (Second) of Torts (1965), § 343A, “Known or Obvious Dangers,” upon which

this Court in part relied. In Shelton, therefore, the Court shifted any

foreseeability (or fact-dependent) analysis in open-and-obvious cases outside of

the duty analysis. Id.

In the case at bar, the Court of Appeals held that Shelton’s holding for

open-and-obvious conditions was intended to be a sea change in negligence

cases at large. The Court of Appeals noted that this Court had yet to extend

Shelton’s holding beyond open-and-obvious cases. Nevertheless, the Court of

Appeals determined that our Court intended for Shelton to apply to all

negligence claims. By extending Shelton, the Court of Appeals reasoned that

Wal-Mart, as a matter of law, always has a duty to safeguard all invitees from

harm on its property, regardless of the foreseeability of the danger that may

befall them. For that reason, the Court of Appeals held that the trial court

erred by finding “no duty” and remanded for the trial court to conduct the

foreseeability analysis within the element of breach.

Accordingly, the analysis we now apply proceeds this way: 1) Along with the defendant’s general duty of care, the defendant’s duty is outlined by the relationship between the parties. E.g., an invitor has a duty to maintain the premises in a reasonably safe condition in anticipation of the invitee’s arrival. 2) Was the duty breached? AND 3) Is the defendant’s liability limited to some degree by the plaintiff’s comparative negligence? Id.

5 This Court has never explicitly or definitively extended Shelton outside of

the open-and-obvious context. While in Carter, this Court wrote “Although

Shelton involved an indoor, man-made hazard, its rule is generally applicable to

all negligence cases,” that statement was mere dicta. Carter v. Bullitt Host, LLC,

471 S.W.3d 288, 297 (Ky. 2015). In Carter, this Court extended the holding in

Shelton from only man-made open-and-obvious cases to naturally occurring

open-and-obvious cases. Id. So, we continued to restrain Shelton to open-and-

obvious cases.

Shelton’s cabining of foreseeability to a breach analysis is thus limited

only to open-and-obvious cases. Even if it were to extend beyond open-and-

obvious cases, however, it certainly could not extend so far as cases involving

third-party criminal actions. Landowners cannot control the actions of third

parties on their property, making these cases markedly different from those

involving the man-made or naturally occurring aspects of a property capable of

maintenance or curative measures.

Additionally, extending Shelton to third-party criminal activity would

create an economically untenable reality for business owners and, ultimately,

their customers. A small business in a transitioning or high crime

neighborhood should not have to bear the costs of an ever-present duty to

protect patrons. Inevitably, such costs will be borne out in consumer prices,

exacerbating economic inequalities already present throughout the

Commonwealth. See Shelton, 413 S.W.3d at 919 (Cunningham, J., dissenting)

(“[If hospitals always have a duty even where harm is not foreseeable,] [t]he cost

6 of health care . . . will be affected as insurance premiums rise. Naturally, this

cost is going to be passed to the consumer.”). We are wary to discourage

business development and consumer access in our communities which may

already be struggling.

In the case at bar, the Court of Appeals erred when it held that, pursuant

to Shelton, determining what constituted a duty of reasonable care in the

context of third-party criminal acts did not require a foreseeability analysis.

The trial court was correct in its application of Napper and its progeny. To

reiterate: a landowner has a duty to protect patrons from third-party acts only

if he or she “knows of activities or conduct of other patrons or third persons

which would lead a reasonably prudent person to believe or anticipate that

injury to a patron might be caused,” and if he or she can reasonably safeguard

against them. Napper, 310 S.W.2d at 271. As with the restriction of

foreseeability in open-and-obvious cases, this rule for third-party acts is

consistent with the rule offered in the Restatement (Second) of Torts (1965) §

344, which states:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Comment (f) following this rule states that “[s]ince the possessor is not an

insurer of the visitor’s safety, he is ordinarily under no duty to exercise any 7 care until he knows or has reason to know that the acts of the third person are

occurring, or are about to occur.” The Restatement (Second) thus mirrors this

Court’s holding in Napper, which remains good law under our holding today.

Because the trial court applied the correct law below, and because no

material facts are at issue, we undertake a de novo review of the trial court’s

grant of summary judgment. Stilger v. Flint, 391 S.W.3d 751, 753 (Ky. 2013)

(citations omitted). Whether Wal-Mart had a duty to protect Reeves from the

third-party criminal act that befell her hinges upon whether such a crime was

foreseeable to Wal-Mart. Napper, 310 S.W.2d at 271. Whether that crime was

foreseeable, in turn, depends upon whether the crime could have been

anticipated by the property owner. See id. For example, if crimes of a

sufficiently similar kind occurred sufficiently close in time to the one at issue,

then the crime at issue would have been foreseeable. See id.

Based on the evidence admitted, Wal-Mart could not have anticipated

this third-party criminal act occurring against Reeves on its premises. Here,

Reeves needed to provide evidence that a third-party criminal act involving

attempted robbery and assault were reasonably foreseeable to Wal-Mart.

Reeves provided only two examples of crimes of a similar nature to the one at

issue in this case, one from 2001 and one from 2012. Both instances were

purse snatchings occurring on the property. All other instances reported were

either between parties known to each other and involved in a dispute, or

between loss prevention staff and thieving customers, or were crimes that were

initiated off Wal-Mart’s premises.

8 Reeves did not provide evidence that the two purse snatchings, one of

which occurred over 15 years before her own incident, involved assaultive

behavior. So, even to the extent that the instances were similar, they failed to

truly compare to the crime at issue in this case. Additionally, because they

occurred so distantly in time (both from each other and from Reeves’s incident),

we cannot hold that they established a pattern that could lead Wal-Mart to

anticipate this kind of crime.

The CAP Index, Inc. Crimecast Report is similarly unavailing. The report

indicates that Fayette County has a higher-than-average crime rate, including

for assault and robbery. However, it provides no statistical information specific

to Wal-Mart’s actual premises. In fact, in a mapped diagram of the six-mile

radius around the Nicholasville Wal-Mart,3 the report indicates that although

downtown Lexington (contained within the radius) has a higher-than-average

crime rate, the location of the Nicholasville Wal-Mart itself has a lower-than-

national-average crime rate. Because foreseeability is specific to the premises

at issue, this report shows, if anything, that Wal-Mart could have anticipated

even less crime than surrounding businesses. Because this report and the

history of crime presented by Reeves do not indicate that random, night-time

parking lot assault and robbery are foreseeable to Wal-Mart, Wal-Mart had no

duty to Reeves to protect her from such crimes. As such, Wal-Mart was

3 It appears that the six-mile radius analysis is the basis for the Nicholasville Wal-Mart’s “CAP Index Score” at 191, which is higher than state and national averages for crime. However, as explained above, the scoring mechanism is over-inclusive for the purposes of our foreseeability analysis.

9 “entitled to a judgment as a matter of law,” and summary judgment was

appropriate. Pearson ex rel. Trent, 90 S.W.3d at 49.

III. CONCLUSION

Business owners do not have a universal duty to protect all visitors

against all third-party acts. Instead, trial courts must consider whether such

acts are foreseeable when determining whether a business has a duty to

protect against those acts. Such an analysis is the only means by which a

landowner can justly be held accountable for harm caused by people out of

their control on their property.

In the case at bar, the trial court heard evidence that the kind and

volume of third-party criminal acts on Wal-Mart’s premises in the past did not

create a duty of reasonable care to protect Reeves against the crime she

suffered. Since the third-party criminal acts were not reasonably foreseeable,

the trial court did not err in granting Wal-Mart’s motion for summary

judgment.

Accordingly, we reverse the Court of Appeals and reinstate the trial

court’s judgment.

Bisig, Conley, Keller, Lambert, Nickell and Thompson, JJ., sitting. All

concur. VanMeter, C.J., not sitting.

10 COUNSEL FOR APPELLANTS:

Kyle Ryan Bunnell Christopher Rennie Cashen Dinsmore & Shohl LLP

COUNSEL FOR APPELLEE:

Stephen M. O’Brien David Seth Coomer O’Brien Batten & Kirtley, PLLC

COUNSEL FOR AMICUS, KENTUCKY DEFENSE COUNSEL, INC.:

Ryan Daniel Nafziger Phillips Parker Orberson & Arnett, PLC