Ward v. West

445 S.E.2d 753, 191 W. Va. 366, 1994 W. Va. LEXIS 95
CourtWest Virginia Supreme Court
DecidedJune 16, 1994
DocketNo. 21983
StatusPublished
Cited by3 cases

This text of 445 S.E.2d 753 (Ward v. West) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. West, 445 S.E.2d 753, 191 W. Va. 366, 1994 W. Va. LEXIS 95 (W. Va. 1994).

Opinion

PER CURIAM:

This is an appeal by Patricia Ward from an order of the Circuit Court of Cabell County awarding Sears, Roebuck & Co. summary judgment in a personal injury action. The appellant argues that the trial court erred in granting summary judgment inasmuch as a genuine issue of material fact existed at the time of the granting of summary judgment and that, under the circumstances, summary judgment was improper. After reviewing the questions raised and the documents filed, this Court agrees with the appellant’s assertions. Accordingly, the judgment of the Circuit Court of Cabell County is reversed.

On February 9, 1992, the appellant, Patricia Ward, was shopping with family members in the Sears, Roebuck & Co. retail store located in the Barboursville Mall in Barb-oursville, Cabell County, West Virginia. At the same time, two employees of Sears were politely escorting a suspected shoplifter, Darrin West, to the Sears security office. The incident which gave rise to the present case occurred when the suspected shoplifter bolted and started running. As he was running, he knocked the appellant to the ground and broke her coccyx.

Following the incident, the appellant sued the suspected shoplifter, Darrin West, and she also sued Sears, Roebuck & Co. and the owner or tenant of the property in which the Sears store was located. In suing Sears, the appellant essentially claimed that the company had failed to use appropriate care in chasing and pursuing the suspected shoplifter. She also claimed that Sears failed to take reasonable precautions to protect her from the dangers inherent in the design, layout, arrangement, and use of its premises. She prayed for trial by jury.

Following the filing of various documents in the case, Sears moved for summary judgment. In support of its motion, Sears argued that the documents showed that the shoplifter readily admitted that he had attempted to shoplift, and that when Michelle Taylor and Henry Jones, who were employed by Sears as loss prevention guards, approached him in the store, he agreed to accompany them to the loss prevention office. Sears stated that at the time Mr. West was [368]*368neither violent nor disorderly and that, under the circumstances, its employees had no reason to foresee that Mr. West would bolt and cause injury to the appellant. It essentially took the position that negligence on the part of its employees did not proximately cause the appellant’s injuries. Sears argued that a party cannot be held liable for damages which result from an event which is not expected and which can not be anticipated by an ordinarily prudent person, a position supported by a number of West Virginia cases. Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986); Puffer v. Hub Cigar Store, 140 W.Va. 327, 84 S.E.2d 145 (1954). It further argued that many cases indicate that where a shoplifter has voluntarily agreed to accompany a store employee and has unexpectedly bolted from the store employee, the store is not responsible for the customer’s injury. In support of this proposition, it cited Graham v. Great Atlantic & Pacific Tea Co., 240 So.2d 157 (Fla.App. 1970); Radloff v. National Food Stores, Inc., 20 Wis.2d 224, 121 N.W.2d 865, rehearing denied, 20 Wis.2d 224, 123 N.W.2d 570 (1963); Knight v. Powers Dry Goods Co., 225 Minn. 280, 30 N.W.2d 536 (1948); and Martin v. Piggly-Wiggly Corp., 469 So.2d 1057 (La.App.1985).

To support its position that its employees did not expect the shoplifter to bolt and injure the appellant, Sears submitted the affidavits of Henry Jones and Michelle Taylor, the loss prevention guards who were escorting the shoplifter. In the affidavits, which were essentially identical, the affiants stated that they reasonably believed that Darrin West had committed shoplifting and that Mr. West had freely admitted to attempting to shoplift, that he had agreed to accompany them to the loss prevention office, and that he had given no indication that he might try to flee. They stated that at no time prior to his attempted flight did they expect him to make such an attempt and that they did not regard him as dangerous. They claimed that neither they nor any other employee of Sears, Roebuck & Co. were chasing him pri- or to his running into the appellant and that only after he ran into the appellant did any employee of Sears pursue and apprehend him.

After taking the motion for summary judgment under consideration, as well as the material submitted in support of that motion, the circuit court, on May 10, 1993, granted the motion of Sears, Roebuck & Co. for summary judgment. In granting the motion, the circuit court accepted Sears argument and affidavits. The court found that Mr. Jones and Ms. Taylor, as loss prevention employees employed by Sears, had authority under the West Virginia Code to detain Darrin West, whom they reasonably believed had committed shoplifting. The court further found that Mr. West admitted that he had shoplifted and that he agreed to be escorted to the loss prevention office and that at that time Mr. West was neither violent nor disorderly, and he gave no indication of a propensity to flee. The circuit court concluded that the evidence showed that while Ms. Taylor and Mr. Jones were escorting Mr. West, he began to run without warning, and that he had run approximately ten feet when he collided with the appellant and knocked her down. Lastly, the court found that at no time prior to the attempted flight did Ms. Taylor and Mr. Jones expect Mr. West to make an attempt to flee and that Sears and its employees had no duty to take extraordinary safety measures since they could not have reasonably anticipated violence on the part of the suspected shoplifter, Darrin West. The court concluded:

The Court finds from the evidence that the employees of Sears did not know that they were dealing with a vicious or violent person, and there is nothing in the record to indicate that they should have so known. The undisputed evidence in the case does not create a case of negligence. Knowledge of the fact that Darrin West was a shoplifter was not knowledge that he was vicious, violent or dangerous as well. The undisputed evidence in the case does not create a case of negligence.

The court concluded that Mr. West’s negligence and willful conduct was the proximate cause of the injuries to the appellant and that Sears and its employees maintained the premises in a reasonably safe condition and exercised ordinary care to protect their customers, including the appellant. On the ba[369]*369sis of all these facts, the court ruled that summary judgment was appropriate.

On appeal, the appellant claims that the circuit court erred in granting summary judgment.

In Aetna Casualty & Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court discussed at some length when summary judgment should be granted under the West Virginia Rules of Civil Procedure. In syllabus point 3 of that case, the Court stated:

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Bluebook (online)
445 S.E.2d 753, 191 W. Va. 366, 1994 W. Va. LEXIS 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-west-wva-1994.