United States District Court, E.D. Pennsylvania
January 5, 2004.
MARSHA MIDGETTE, Plaintiff,
WAL-MART STORES, INC., Defendant
The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge
MEMORANDUM AND ORDER
Plaintiff Marsha Midgette has filed a two-count Complaint, alleging
negligence and negligent entrustment, stemming from an unfortunate act of
domestic violence against Plaintiff, an employee of Defendant Wal-Mart
Stores, Inc. (Wal-Mart), that occurred inside one of Defendant's stores.
Defendant now seeks an order granting it summary judgment, pursuant to
Fed.R.Civ.P. 56(c), on grounds that there is no genuine issue of fact
for trial and thus, it is entitled to judgment as a matter of law. For
the reasons discussed below, we grant Defendant's Motion for Summary
I. FACTUAL BACKGROUND
The relevant facts that lead up to the tragic shooting of Plaintiff all
of which appear to be undisputed, transpire over a period of three days,
from Thursday, August 26, 1999, through Sunday evening, August 29, 1999.
We recount them as set forth by Plaintiff.
By the summer of 1999, Plaintiff, an employee of Defendant Wal-Mart,
and her husband, Bryan Midgette (Bryan), had been married for twenty-six
years (see Midgette Dep. at 30), with
no history of physical domestic violence. According to Plaintiff,
"[sic w]hat I can remember, he's never threatened me." (Midgette Dep. at
104.) However, in June 1999, during a time when the couple was not
"getting along," Bryan decided to commit himself for mental health
treatment of depression. A few days later, against the advice of the
doctors that he remain and continue treatment, Bryan checked himself out
and returned home to Plaintiff. (Midgette Dep. at 97-104.) Despite
continuing to have difficulties, the couple remained together.
The first relevant instance of domestic discord between the couple
occurred on Thursday, August 26, 1999. That morning, Plaintiff and Bryan
engaged in an argument at their home that led to Bryan pushing Plaintiff
forcefully off the barstool upon which she sat, and which caused her to
injure her back. He then pulled her up off the ground and raised a fist
to her, making her fear that he would hit her. However, instead of
hitting her, Bryan released her and offered to call someone to help her.
After some resistance, she allowed him to call an ambulance. Plaintiff
suffered no injuries from the encounter, receiving only pain medication
from the hospital before being released (Midgette Dep. at 113-116.)
Bryan was subsequently charged with assault and told by the District
Justice to stay away from Plaintiff until the preliminary hearing, which
was scheduled for the following Tuesday, August 31, 1999. (Incident
Report, 8/26/99, Def.'s Br. Ex. D.) The bail conditions requiring that
Bryan stay away from Plaintiff did not expressly mention Wal-Mart.
Nevertheless, no protection from abuse, or other Court of Common Pleas
order was signed that prevented Bryan from seeing his wife. (Midgette
Dep. at 72.)
That evening, Plaintiff reported for work at Wal-Mart. She told Terry
Moore (Moore), the support manager on Plaintiff's shift, that her back
was bothering her because Bryan had
pushed her off a barstool that morning. Moore then changed Plaintiffs
duties so that she would not endure any heavy lifting. Later that shift,
Moore allowed Plaintiff to clock out of work early because Plaintiff
continued to experience back pain (Moore Dep. at 13-16.)
After clocking out, Plaintiff went to the car of co-worker, Christine
Epright (Epright), to rest her back. Shortly thereafter, her co-worker
returned to the car in the parking lot to inform her that Bryan had
arrived at the Wal-Mart. According to Plaintiff, Moore told Epright to
drive her to a nearby diner. There, Epright called Moore, who told them
to return to the store and to enter through the back entrance. By the
time they returned, Bryan had left the Wal-Mart. At no time during that
night did Plaintiff call the police or think that Bryan would hurt or
threaten anyone, including herself. She simply wanted him to stay away
from her so that she could do her work uninterrupted (Midgette Dep. at
132-137.) There is also no evidence that Bryan acted disruptively while
at the store.
Later that Friday, Plaintiff informed a manager of the store, Randall
Mummert (Mummert), of the barstool incident and that she and her husband
were experiencing marital difficulties. In response, Mummert told her
that he was sorry but that she needed to "keep it out of the store."
(Midgette Dep. 138.) According to Plaintiff, Bryan also went into the
store and informed Mummert that they were having marital problems.
(Midgette Dep. at 153.) Plaintiff also informed Cathy Eroh (Eroh),
another support manager, of the barstool incident. Eroh told Plaintiff
that she could take some time off work to deal with her family problems.
(Midgette Dep. at 146.) She also reminded Plaintiff of the hotline that
Wal-Mart made available to all employees, with counselors who would
discuss any problem, in confidence. (Eroh Dep. at 10.) Plaintiff never
made use of that hotline.
Plaintiff worked her next shift, from Friday night into Saturday
morning, without incident. However, during her Saturday night/Sunday
morning shift, Bryan made a telephone call to the store. When Plaintiff
refused to speak with him, he hung up. (Midgette Dep. at 157.) Later, as
she was leaving her shift that Sunday morning, one of her co-workers told
Plaintiff that her husband was sitting in his car in the parking lot.
Although she was afraid, Plaintiff went to the car alone and spoke with
Bryan. He told her that he was there to buy socks. He left and later
returned and entered the store, which Plaintiff saw as she was leaving.
At no time did Bryan threaten to harm her or anyone else, and never did
Plaintiff think she needed to call the police or request assistance.
(Midgette Dep. at 149-152.)
Later that Sunday, Plaintiff went to the Philadelphia Zoo with her
daughters, their husbands, and their children. When they returned to the
home of Plaintiffs daughter, Joy, where Bryan was residing at the time,
they found Bryan sitting in the parking lot across from the house. An
argument ensued between Bryan and his son-in-law, during which his other
son-in-law called the police. The police spoke with Plaintiff over the
phone and informed her that "they couldn't do nothing [sic] about it, not
unless physical harm was done." The police did not come out to the house.
However, according to Plaintiff, her husband never threatened her during
that argument. (Midgette Dep. at 159-166.)
After this incident, Plaintiff stopped by her house to get ready for
work, then went to the Wal-Mart with her daughter, Victoria Hall, and
Victoria's husband. Although her shift did not start until 10:00 p.m.,
she arrived at 9:00 p.m. and stood outside to speak with some friends.
(Midgette Dep. at 167-68.) She never clocked in. While outside, Plaintiff
saw Bryan drive into the parking lot. Her co-worker, Epright, told her to
go in the store, which she did. Plaintiff then
told her daughter that Bryan had arrived. When Bryan entered the
store, Victoria told her mother "to go to the back," to the employee
break room, which Plaintiff did after some resistance to the idea.
(Midgette Dep. at 169-70.)
Victoria did not approach Bryan to speak to him, but rather went to the
opposite end of the store because she "didn't feel like hearing it."
According to Victoria, Bryan looked like he was possessed, "a trained
robot . . . there on a mission and he was going to do it." However,
she did not call the police or request assistance from any Wal-Mart
personnel. In fact, she and her husband "got caught up on something that
[they] had actually been looking for." It was only when they located that
item that Victoria sought to find Plaintiff. (Hall Dep. at 91-92.)
Clearly, despite having first-hand knowledge of her parents' marital
difficulties and witnessing the argument among the family earlier that
day, Victoria did not foresee the tragedy that later ensued.
Earlier that evening, unbeknown to Plaintiff, Bryan had purchased
standard ammunition for a 22-caliber firearm, commonly used in a
22-caliber hunting rifle, from the sporting goods department at the
Wal-Mart. (Emmell Dep. at 9, 11-12.) According to the sales clerk, who
had seen Bryan in the store before but who did not know him and did not
know anything about Bryan and Plaintiffs marital difficulties, Bryan was
calm and polite, and gave her no reason to believe that he was unsound.
(Emmell Dep. at 10.)
Around this time, Bryan also approached Richard Faulk (Faulk), the
manager of the store, to inquire as to whether his wife was working that
night. Faulk informed him that he did not know. At the time, while he
knew that Bryan and Plaintiff were having difficulties, he did not know
that Bryan had been told to stay away from his wife until his preliminary
hearing, nor did he know of any physical abuse that she had suffered.
When Plaintiff arrived at the store that
evening, Faulk informed her that her husband had inquired about her.
(Faulk Dep. at 21-23, 25.)
At around 9:30 p.m., despite not having clocked in and prior to the
time her shift was to start, Plaintiff stood in the employee break room.
Her husband entered the room and told her he needed to speak with her.
Plaintiff told him that he needed to leave, that he would get into
trouble for being back there; but, Bryan insisted that he could not leave
her. They talked for a little while longer, after which Plaintiff cannot
remember what transpired. (Midgette Dep. at 171-173.) According to the
police report, at 9:39 p.m., Bryan took out a 22-caliber revolver and
shot his wife in the head, then shot himself in the head. Bryan did not
survive the shooting, but Plaintiff did. (Pottstown Incident Report,
Based on these events, Plaintiff filed a two-count Complaint, alleging
negligence for failing to protect her, as well as negligent entrustment,
for selling to Bryan the ammunition that he eventually used to shoot his
wife and kill himself. As part of negligence claim, Plaintiff claims that
Wal-Mart breached its duty to protect her in the following ways: by
failing to call the police when they knew that Bryan was there; having
inadequate security; failing to provide her a safe environment to work;
failing to have in place a policy to address spousal abuse and to train
management on how to handle such abuse; and finally, by selling the
bullets that injured her. (Compl. ¶ 15.)
Defendant has filed the instant Motion for Summary Judgment, largely on
grounds that it owed no duty to Plaintiff to protect her from her
husband's criminal behavior. As such, Defendant argues she could not make
out a claim of negligence or negligent entrustment against Defendant. We
agree. Any duty that Defendant might have owed to Plaintiff was never
breached. Moreover, even if we were to find an issue of material fact
with respect to duty, no
reasonable jury could find that any act or omission by Defendant
represented the proximate cause of Plaintiff's injuries. Accordingly, we
must grant Defendant's Motion for Summary Judgment.
Under 28 U.S.C. § 1332, this Court has original subject matter
jurisdiction over claims between citizens of different states in which
the monetary amount in dispute is greater than $75,000. Plaintiff resides
in Pennsylvania. Defendant Wal-Mart is incorporated in Delaware, with its
principal place of business in Arizona. The amount in controversy exceeds
$150,000. As there is complete diversity between the parties and the
amount in controversy exceeds $75,000, this Court has jurisdiction to
hear the instant matter. See 28 U.S.C. § 1332; HB General Corp. v.
Manchester Partners. LP, 95 F.3d 1185, 1197 (3d Cir. 1996).
Pursuant to Fed.R.Civ.P. 56(c), Defendant moves for summary judgment
on grounds that there exists "no genuine issue as to any material fact
and that [it] is entitled to a judgment as a matter of law." More
specifically, Defendant argues that it owed no duty to Plaintiff, assumed
or otherwise, either as her employer or as the landowner on whose
property the act occurred, with respect to the domestic violence she
Defendant further argues that its actions were not a substantial factor
contributing to the shooting. As such, Defendant argues that Plaintiff
could not show at trial either duty or causation, two of the necessary
elements required to obtain relief under a negligence theory. Finally,
Defendant argues that Plaintiff cannot, as a matter of law, prove
negligent entrustment by Defendant.
Rule 56(c) allows for summary judgment "if the pleadings, depositions,
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56. An issue is genuine only if there is a sufficient
evidentiary basis on which a reasonable jury could find for the
non-moving party, and is material only if it might affect the outcome of
the suit under governing law. Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
As a court sitting in diversity, we "must apply the substantive law of
the state whose laws govern the action," Robertson v. Allied Signal.
Inc., 914 F.2d 360, 378 (3d Cir. 1990) (citing Erie R.R. v. Tompkins,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)), and accept the
decisions of the state's highest court as "the ultimate authority
regarding state law." Ciccarelli v. Carey Canadian Mines. Ltd.,
757 F.2d 548, 553 n.3 (3d Cir. 1985); Connecticut Mutual Life Ins. Co.
v. Wyman, 718 F.2d 63, 65 (3d Cir. 1983). However, "[i]n cases where the
state's highest court has not considered the precise question to be
answered, [we are] called upon to predict how the state court would
resolve the issue should it be called upon to do so." Robertson, 914 F.2d
at 378 (citations omitted). In making such a prediction, we shall give
"proper regard to relevant rulings of other courts of the [s]tate."
Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18
L.Ed.2d 886 (1965) (internal quotes omitted): see also Erie Castings Co.
v. Grinding Supply. Inc., 736 F.2d 99. 100 (3d Cir. 1984): Wyman, 718
F.2d at 65.
At the summary judgment stage, the moving party bears the initial
burden of identifying those portions of the record that demonstrate the
absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thereafter, to defeat summary
judgment, the non-movant must respond with specific facts "sufficient to
element essential to that party's case, and on which that party will bear
the burden of proof at trial." Id. at 322. At this stage, our role is
"not  to weigh the evidence and determine the truth of the matter, but
to determine whether there is a genuine issue for trial." Anderson, 477
U.S. at 249; Country Floors v. Partnership of Gepner & Ford,
930 F.2d 1056, 1062 (3d Cir. 1991).
We are required to view the record in the light most favorable to the
non-moving party, Matsushita Elec. Ind. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 U.S. 1348, 89 L.Ed.2d 538 (1986); Betz
Laboratories. Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981), and to
resolve all doubts against the moving party. Gans v. Mundy, 762 F.2d 338,
341 (3d Cir.), cert. denied. 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467
(1985). Because we find, after reviewing the record in a light most
favorable to Plaintiff, that there is no genuine issue for trial, we
grant Defendant Wal-Mart's Motion for Summary Judgment.
A. Count I: Negligence
In the first count of the Complaint, Plaintiff claims that Defendant
breached the duty it owed to protect her from the criminal act of her
husband, and that Defendant's negligence was the proximate cause of the
injuries she suffered when her husband shot her.
To obtain relief through a negligence action, the plaintiff must prove
four elements on the part of the defendant:
(1) a duty or obligation recognized by the law,
requiring the actor to conform to a certain
standard of conduct;
(2) a failure to conform to the standard required;
(3) a causal connection between the conduct and
the resulting injury; and
(4) actual loss or damage resulting to the interests
Morena v. South Hills Health System, 462 A.2d 680, 684 n.5 (Pa. 1983);
see also Prosser, Law of Torts § 30 (4th ed. 1971).
As a preliminary matter, we note that this case falls within the
personal animus exception of the Workers Compensation Act. 77 Pa. Cons.
Stat. § 411. As such, Plaintiff is free to pursue any potential
common law remedy available to her.
As a general rule under Pennsylvania law, absent a pre-existing duty, a
party cannot be held liable for the criminal actions of a third party
unless that party assumed a duty, through some act of its own. Feld
v. Merriam, 485 A.2d 742, 746 (Pa. 1984); Restatement (Second) of
Torts, § 315. In other words, unless Wal-Mart voluntarily assumed a
duty to protect Plaintiff, or unless Wal-Mart shared with Plaintiff a
special relationship that created a pre-existing duty, Wal-Mart cannot
be held responsible for the actions of Bryan.
Upon review of the record, we find no evidence that Wal-Mart assumed
any duty to protect Plaintiff on the night of the shooting. Moreover,
while it is uncertain whether Pennsylvania recognizes a special
relationship between an employer and its employee, thus creating a duty
to protect her from third parties, we find that even if the Pennsylvania
courts did recognize such a relationship, Wal-Mart's actions did not
breach that duty.*fn1
As noted by both parties, Section 314A of the Restatement (Second) of
Torts identifies the special relationships that give rise to a duty to
protect. The parties agree that the main text of
the section does not establish a duty between an employer and employee,
or any other duty applicable to this matter.*fn2 However, Comment a. of
this section does state that "[a]n additional relation giving rise to a
similar duty is that of an employer to his employee," and directs the
reader to Section 314B and to Chapter 14 of the Restatement (Second) of
Agency.*fn3 § 314A, com. a.
We recognize that while Pennsylvania courts have adopted the main text
of the section, no court has adopted all its commentary. A review of
Pennsylvania cases that have mentioned Section 314A, and particularly
those that engage in an analysis of whether a special relationship
exists, reveals that no case recognizes or adopts either Comment a. or
any special relationship between an employer and employee. See e.g.,
Johnson v. Johnson, 600 A.2d 965, 972 n.8 (Pa. Super. 1991), superseded
by statute on other grounds, Pa. R. Civ. P. 1035.2, 1035.3 (see e.g.,
Harber Philadelphia Center City Office. Ltd, v. LPCI Ltd. Partnership,
764 A.2d 1100, 1104 ( Pa. Super. 2000)).
Most of these cases list the special relationships that create a duty
to protect, but they list only those relationships identified in the main
text. See e.g., Brezenski v. World Truck Transfer. Inc., 755 A.2d 36, 41
n.4 (Pa. Super. 2000); T.A. v. Alien, 669 A.2d 360, 362-63 (Pa. Super.
1995); Estate of Mickens v. Stevenson, 57 Pa. D. & C. 4th 287, 294
(Pa. Com. PL 2002). One lower court case expressly recognizes the
exclusion, stating that a duty "arises only" in the relationships
identified in the main text. See Kostas v. Alworth, 50 Pa. D. &. C.3d
(Pa. Com. Pl. 1988). Based on this oversight of the commentary by all of
the cases that discuss Section 314A, we believe that Pennsylvania has not
adopted the commentary, and thus no such special relationship exists
between Wal-Mart and Plaintiff.
Furthermore, even if we were to recognize the commentary, and the duty
that would exist between an employer and employee, we would find, as a
matter of law, that Wal-Mart did not breach its duty, prescribed by
Section 314B.*fn4 In relevant part, under Section 314B,
if a servant, while acting within the scope of his
employment. comes into a position of imminent danger
of serious harm and this is known to the master or to
a person who has duties of management, the master is
subject to liability for a failure by him-self or by
such person to exercise reasonable care to avert the
§ 314B(1) (emphasis added).*fn5
We agree with Defendant that, based
on the record before us, viewed in favor of Plaintiff, Plaintiff could
not establish that anyone in management positions at Wal-Mart knew that
she was in a "position of imminent danger of serious harm." The record
shows that neither Plaintiff nor her children knew, despite their special
knowledge of the circumstances. If they were not aware, we fail to see
how a reasonable jury could find that Wal-Mart knew Bryan was going to
For example, Plaintiff makes clear that she never thought that her
husband would hurt her
or anyone else at the store, and that he had never behaved in a
disruptive, much less violent, manner in any public place, including the
store. (See Midgette Dep. at 136-37.)
Furthermore, Plaintiff's daughter, Victoria Hall, who had just hours
earlier witnessed an argument involving her father and mother, and who
saw her father when he entered the Wal-Mart that night and thought that
he looked possessed, like a robot, continued to shop in the same store.
Clearly unaware of her mother's position of imminent harm, she never
called the police or sought out Wal-Mart personnel for assistance. (Hall
Dep. at 91-92.) If, armed with all her knowledge, Plaintiff's own
daughter did not know, it cannot be expected that Wal-Mart would know. As
such, the circumstances did not call into question any possible duty
under Section 314B.
Plaintiff argues that, based on the knowledge of some management
personnel that she was having problems with her husband, his presence in
the store, and her attempts to seek help from the manager, Wal-Mart
Management was aware of her position of imminent harm. We disagree.
Knowledge of a domestic dispute from three days prior, especially with no
other such incident since, does not give rise to knowledge of a position
of imminent danger. Furthermore, we believe that Bryan's continued
presence in the store, without any scene, incident, or threats of any kind
creates a likelihood that his wife was not in danger from him.
Finally, while Plaintiff did inform Mummert of her problems and states
that she sought protection from him, she also states that the kind of
protection she wanted from Wal-Mart merely was for them to listen to her,
perhaps empathize with the situation. (Midgette Dep. at 136.) She also
admits that she did not request or expect Wal-Mart to ban Bryan from
entering the premises. (See Midgette Dep. at 74, 76.) More
significantly, she did not tell Mummert at any time that she feared for
her safety or that she was in a position of imminent harm. Furthermore,
she told the
manager about her problems with her husband on Friday morning, two
days prior to the shooting, at a time at which the danger was not
imminent. No reasonable jury could find that the limited conversation
somehow conveyed knowledge of imminent harm from a shooting to occur
almost three days later, especially when the manager interacted with
Bryan less than two hours before the shooting and Bryan behaved normally.
(See Faulk Dep. at 22.)
We underscore that, based on their actions at the store immediately
prior to the shooting, neither Plaintiff nor her daughter were aware of
her position of imminent danger. If they were not so aware, no reasonable
jury could find that Wal-Mart knew, either, of Plaintiff's precarious
position. As such, while we do not believe that Pennsylvania recognizes a
special relationship between employers and employees, if such a
pre-existing duty existed, Wal-Mart did not breach it.*fn6 We do not
believe that Pennsylvania has made all employers insurers of employee
safety from criminal acts of third parties.
Sections 323, 324, and 324A of the Restatement (Second) of Torts, all
of which Pennsylvania courts have adopted, describe the legal
responsibilities of a party that assumes a duty to another party, and the
liability for negligence in undertaking that duty. Plaintiff claims that
assistance provided to her on an evening three days prior to the night of
the shooting created a duty to protect her from Bryan on the eventual day
of the shooting. We disagree.
On the Thursday prior to the shooting, after Plaintiff clocked out of
her shift and was resting her back in a car in the Wal-Mart parking lot,
Bryan arrived at the Wal-Mart. Plaintiff
contends that because the support manager told one of Plaintiff's
co-workers to take her away from the store and, after speaking with them
at nearby diner, told them to return to the store through an alternative
entry because Mr. Midgette was still at the store, Defendant assumed a
duty to protect her from her husband. (See Pl.'s Br. at 17; Midgette
Dep. at 132-33.)
We agree with Defendant's argument that the support manager's actions
did not assume a duty to protect Plaintiff, and that the store manager's
remarks that Plaintiff keep her private problems out of the store, as
callous as they may have appeared to Plaintiff, made clear that Wal-Mart
never volunteered to take on a duty to protect her from her husband. As
such, contrary to Plaintiffs sole argument regarding this duty, the
findings of Plaintiff's expert that Wal-Mart's policies, and more
specifically its handling of Thursday's incident, negligently addresses
issues of domestic violence, can play no role here.
The Pennsylvania Superior Court's ruling in Kerns v. Methodist
Hospital, 574 A.2d 1068 (Pa. Super. 1990), is instructive. In Kerns, a
robbery victim plaintiff claimed that the existence of a hospital's
security program created a duty on the part of the hospital to protect
him. Additionally, the plaintiffs expert opined that the security program
was inadequate, indicating a breach of that duty. Rejecting these
arguments, the court found that the existence of the security program
created no such duty because the hospital had no notice of the specific
kind of violence that the plaintiff had endured at the peril of a third
party. See id. at 1076.
Similarly, here, Wal-Mart had no notice of the specific kind of
violence (a shooting) that Plaintiff would suffer at the hands of her
husband. As such, its actions that Thursday to address the situation
created no such duty to protect Plaintiff.
Furthermore, while we find, as a matter of law, that Wal-Mart assumed
no duty to
Plaintiff, we note that even if we had found that Thursday's event
did create a duty, it was not breached with respect to the shooting.
Under Sections 323 and 324A of the Restatement, a party incurs liability
only if "his failure to exercise [reasonable care undertaking the duty]
increases the risk of  harm, or . . . the harm is suffered because
of the other's reliance upon the undertaking."*fn7 Thus, even if we were
to assume that Wal-Mart did assume a duty to protect Plaintiff on that
Thursday evening, there is no evidence on the record that would even
suggest that Wal-Mart's decision to assist Plaintiff either increased the
risk that her husband would shoot her the following Sunday or that
Plaintiff was shot on Sunday because she relied on a belief that her
employer would protect her from any violence from Bryan. In fact,
Plaintiff did not even expect that Bryan would harm her physically at the
Wal-Mart, much less shoot her. (See Midgette Dep. at 136-37.)
Furthermore, Plaintiff indicates that, while she was uncertain as to
exactly what she hoped Wal-Mart might do (she was not even sure if she
wanted Wal-Mart to keep Bryan out of the store and was even less certain
whether Wal-Mart had the ability to do it (See Midgette Dep. at 140)),
Plaintiff states that she really just wanted Bryan to stay away so that
she could work (Midgette Dep at 137). Thus, any possible duty on which
she might have relied from Wal-Mart involved allowing her to do her job,
not protecting her from violence she did not anticipate. According to
Plaintiff, she wanted Wal-Mart to protect her by "just listen[ing] and
understand[ing] me. . . ." (Midgette Dep. at 136). Moreover, Plaintiff
was not working at the time of the shooting, making it even less likely
that any such duty existed.
Finally, we believe any possible assumption of duty from Thursday's
liability for Wal-Mart liable only on that Thursday evening. If the
shooting had occurred that evening, or if Plaintiff had suffered an
injury pursuant to Wal-Mart's attempt to protect her that night from her
husband, there might be an issue for a jury to decide. However, there is
no evidence that Defendant would continue to treat Plaintiff as they did
on Thursday evening. It is difficult to see how a duty could extend to
three days later, under different circumstances.*fn8
Duty as Landowner
While she underscores that the crux of her duty argument focuses on the
duty to provide a safe workplace, Plaintiff further argues that, as a
landowner, Wal-Mart owed a duty to protect her from her husband's
actions. Section 344 of the Restatement (Second) of Torts, which
Pennsylvania has adopted, states that a landowner, such as Wal-Mart, that
opens for business to the public is liable to the public for the
intentional torts of third parties if it fails "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 against it." § 344.
However, this duty does not arise until the landowner
knows or has reason to that the acts of the third
person are occurring, or are about to occur [or
unless h]e may  know, or have reason to know,
from past experience that there is a likelihood of
conduct on the part of third persons in general
which is likely to endanger the safety of the
visitor. . . .
Moran v. Valley Forge Drive-in Theater. Inc., 246 A.2d 875, 878 (Pa.
1968). For example, in Moran, the plaintiff sued a movie theater after
suffering injuries due to a firecracker explosion in
the defendant's restroom. The Pennsylvania Supreme Court found that
the repeated instances of firecracker explosions at the theater,
including in a restroom, immediately prior to the plaintiff's injury,
combined with the frequency of teenage rowdiness and the unfitness of
security to keep order on the premises, raised an issue for trial as to
whether the theater should have foreseen, and thus had a duty to protect
or warn with respect to, the incident causing the plaintiff's injury.
Id. at 877-78.
Plaintiff has not shown how Defendant had either actual or constructive
knowledge of the likelihood of Bryan's conduct, and thus, no duty under
Section 344 arose. It is undisputed that Plaintiff's relevant marital
concerns commenced just three days prior to the Sunday shooting, with the
barstool incident that resulted in criminal assault charges being filed
against Bryan. (See Police Compl., Def.'s Mot. Ex. D.) Furthermore,
despite Bryan's numerous visits to the store (Midgette Dep. at 106),
Plaintiff does not identify any time that Bryan behaved in a dangerous,
violent, or unbecoming manner on the Wal-Mart premises, nor did he make
any threats at that time. (See Midgette Dep. p. 142-43.) Thus, it cannot
be expected that Wal-Mart would have reason to foresee Mr. Midgette's
Contrary to Plaintiff's argument, neither her fear of her husband nor
Stuart Forbes' hindsight that had he been present, he would have treated
Mr. Midgette like any other "harassment deal" and asked him to leave
(Forbes Dep. at 23), raises any issue of material fact as to whether the
shooting was foreseeable. (See Pl.'s Br. at 19.) There simply is no
evidence suggesting a likelihood of violence from which Wal-Mart had a
duty to protect the public.
Contrarily, in a case where a woman was stabbed and robbed in a store
parking lot, the Pennsylvania Superior Court found that the common
occurrence of muggings and purse snatches,
which happened as frequently as twice daily, could lead a reasonable jury
to conclude the inevitability of harm to a patron, and thus that the
store had a duty either to warn its customers of such a possibility or to
take reasonable measures to prevent it. See Murphy v. Penn Fruit Co.,
418 A.2d 480, 483-84 (Pa. Super. 1980). Here, the record fails to reveal
that Wal-Mart had such notice. Plaintiff presents no evidence of frequent
episodes of domestic violence occurring on the store premises by Bryan or
Duty to Call the Police
Finally, as we have addressed all the legal duties that Wal-Mart might
have owed to Plaintiff, and have found that Wal-Mart breached no duty, we
do not find it necessary to discuss the extensive analysis set forth by
Defendant with respect to whether it had a right to ban Mr. Midgette from
the premises or to call the police when he arrived there that Sunday
night. (See Def.'s Mem. at 28-31.) The duty analyses, infra, show that,
regardless of whether Wal-Mart had such a right, it owed no legal duty to
Plaintiff either to ban her husband from the store or to call the
police. We further note that Plaintiff presents no case law or rule
establishing such a duty. Speculation on the part of individuals as to
how they would have reacted had they been present the night of the
shooting does not give rise to a legal duty. (See Pl.'s Mem. in Opp. at
Having found that Wal-Mart did not breach any duty it might have owed
to Plaintiff, our analysis can cease because Plaintiff could not show the
four elements necessary to win a negligence claim (duty, breach,
causation, and injury). However, for the sake of thoroughness, we believe
that, even if we were to have found that Wal-Mart breached some duty, as
defined by Plaintiff, no reasonable jury could find that Wal-Mart's acts
or omissions represented the legal
cause of Plaintiff's tragic injuries.
Plaintiff has alleged that Defendant breached the following duties: to
call the police when her husband arrived at the store; to have adequate
security and a safe environment to work; and to implement an employee
spousal abuse policy that advised management on how to address domestic
abuse. Plaintiff has further alleged that Defendant breached a duty when
it sold ammunition to her husband. (Compl. ¶ 15.) We find that, even
if Defendant had carried out all of the above practices, thus satisfying
the duties that Plaintiff believes Defendant owed, Bryan very likely
still would have succeeded at shooting his wife. As such, no reasonable
jury could find that, but for the actions and/or omissions of Wal-Mart,
Bryan would not have shot his wife that night.
To satisfy the prima facie element of causation, the plaintiff must
"establish a causal connection between [the] defendant's conduct and the
plaintiff's injury." Furthermore, we cannot find the defendant's breach
of duty to be a proximate cause if "the plaintiffs injury would have been
sustained even in the absence of the defendant's negligence." Hamil
v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978).
As a matter of law, we are required to make the threshold determination
of whether Defendant's conduct, or alleged breach of duty, could
constitute the proximate, or legal, cause of Plaintiff's injury. Brown
v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa.
Super. 2000). In other words, we must determine whether Wal-Mart's
alleged conduct or omission "`was a substantial factor in producing the
injury.'" Id. at 869 (quoting Vattimo v. Lower Bucks Hosp., Inc.,
465 A.2d 1231, 1233 (1983)) (plurality opinion) (internal quotes
omitted). According to the Restatement,
The following considerations are in themselves or in
combination with one another important in determining
whether the actor's conduct is a substantial factor in
bringing about harm to another:
(a) the number of other factors which contribute
in producing the harm and the extent of the
effect which they have in producing it;
(b) whether the actor's conduct has created a
force or series of forces which are in continuous
and active operation up to the time of the harm,
or has created a situation harmless unless acted
upon by other forces for which the actor is not
(c) lapse of time.
§ 433 of Restatement (Second) of Torts; Brown, 760 A.2d at 869;
Vattimo, A.2d at 1233-34.
With respect to subsection (a), the other factors that contributed to
the unfortunate harm suffered by Plaintiff far outweigh any act or
omission on Defendant's part. For example, clearly the actions of Bryan
produced the most substantial and detrimental harm to Plaintiff. His
obtaining a firearm, pursuing his wife, and carrying through with his
intent to shoot her clearly played the largest role in the shooting.
Bryan's mental health concerns likely also played a significant role in
the events of that Sunday evening. (See Midgette Dep. at 96-104.)
Additionally, the events during the preceding few days that led up to
the shooting, none of which involved Wal-Mart, such as the barstool
incident and the encounter Saturday evening following the trip to the
zoo, which likely spurred the actions of Bryan, contributed to the
shooting. Thus, as to the first factor, Plaintiff could not show that any
action or omission by Wal-Mart was a substantial factor contributing to
Similarly, Plaintiff does not even allege that Defendant "created a
force or series of offerees which [we]re in continuous and active operation
up to the time of the harm. . . ." § 433(b). A failure to call
the police, implement a spousal abuse policy, train management regarding
domestic abuse, or refrain from selling ammunition from a party not
otherwise restricted from purchasing ammunition does not create such a
Finally, while the shooting occurred shortly after Wal-Mart's alleged
breach of duty (i.e., sale of the ammunition and failure to protect
Plaintiff), this factor does not outweigh the absence of the other two
factors. As such, we find that Wal-Mart's actions or omissions did not
constitute a substantial factor to the injury suffered by Plaintiff.
Thus, no reasonable jury could find that Wal-Mart's alleged breach of
duty was the proximate cause of Plaintiff's injuries.
While not directly on point, we find the Pennsylvania Superior Court's
ruling in Hill v. ACME Markets. Inc., 504 A.2d 324 ( Pa. Super. 1986), to
be instructive. There, the estate of a woman who died from injuries
suffered during a car accident with the defendant's employee claimed that
the defendant grocery store was negligent, in part, because it failed to
monitor its employee's activities, despite knowing his mental health
history,*fn9 and because it failed to establish policy and train
management to address mental and emotional disorders in its employees.
See id. at 324-25.
Sustaining the defendant's demurrer, which carried a higher threshold
for the defendant to satisfy than the defendant's burden here, the court
[t]o suggest that an employer must  monitor his
employees as to be held responsible for failing to
contemplate that a given employee would become
emotionally upset, leave the premises, [and
negligently cause a car accident] would, in effect
make the employer the insurer of its employees'
conduct. . . . It is not enough that appellant argue
the linkeage of but for causality, for the law
Id. at 325. Accordingly, "[t]o hold otherwise would . . . fix an
impossible burden on an employer
to constantly monitor each employee's mental state and assume a risk of
non-detection which would unfairly fix upon him responsibility for
employee's negligence totally unrelated to his employment." Id. at 326.
Plaintiff requests here that we extend this "impossible burden" beyond
Defendant's employees to its employee's families, which we simply cannot
We will not make Defendant an insurer.
We further agree with Defendant's reasoning that Wal-Mart could not
have prevented the shooting. As demonstrated by the inability of the
police to act when Plaintiff's family called the night before the shooting
to seek assistance (see Midgette Dep. at 163), if the police, whose very
function it is to protect the public and anticipate potential criminal
activity, could not have acted with respect to Bryan, certainly Wal-Mart
could not be expected to have known or anticipated the unfortunate
actions of Bryan.
Furthermore, because Bryan was not acting disruptively (see Emmell
Dep. at 10; Faulk Dep. at 22) (making small talk with Bryan), and in
fact, had never acted inappropriately in the store or made threats (see
e.g., Midgette Dep. at 136-37), had Wal-Mart called the local police, as
Plaintiff believes it should have, it likely would have received the same
response that her family had received the night before: that the police
could not do anything because no one had suffered any physical harm.
(See Midgette Dep. at 162-63.)
Similarly, the existence of a spousal abuse policy, designed to assist
Management to handle issues of domestic discord among its employees,
likely would not have prevented the
shooting, and certainly could not be characterized as a substantial
factor contributing to Plaintiffs injury. Even Plaintiffs own expert
cannot conclude that such a policy would have prevented the shooting.
(See Brill letter, Def.'s Mot. Ex. T at 2 (". . . there is every reason
to believe that the shooting could have been prevented.") (emphasis
Finally, if Wal-Mart had not sold the ammunition to Bryan, perhaps the
shooting might not have occurred exactly when it did. However, the
argument still fails under a proximate cause analysis because it
certainly could not be concluded that had Wal-Mart not sold him
ammunition, Bryan would not have shot his wife later that night with
bullets he easily could have purchased elsewhere. He also could have used
The record indicates clearly that this tragedy simply could not have
been prevented because no one but Bryan could have anticipated his
senseless acts that Sunday night. Plaintiff's children, who were present
in the store and who did not themselves call the police or ask Management
to intervene, did not anticipate it. (See Victoria Hall Dep. at 92-93
(hearing the screams but thinking that she would just separate her
parents and talk to him); Midgette Dep. at 170, 174-75.) Not even
Plaintiff herself, who knew Bryan best, foresaw the event that would
transpire when she remained talking with her husband in the break room
without seeking help or leaving. (See Midgette Dep. at 172.) In fact, she
seemed more worried about the fact that Bryan was in the break room,
where only employees were allowed. (See Midgette Dep. at 171 ("you're
not even supposed to be back here [sic] you'll be in trouble."))
If the people closest to the situation could not have anticipated it,
we cannot expect that Wal-Mart could foresee Bryan's actions, or that its
failure to call the police, maintain the kind of spousal abuse policy
that Plaintiff believes it should have, or prohibit the sale of
commonly-used and sold ammunition to someone with no restrictions on his
ability to purchase firearms or ammunition, would have prevented the
shooting. Certainly, no reasonable jury could find that the shooting
"would have been foreseen by an ordinary person as the natural and
probable outcome" of Defendant's failure to carry out the above tasks.
Reilly v. Tiergarten Inc., 633 A.2d 208, 210 (Pa. Super. 1993) (citing
Merritt v. City of Chester, 496 A.2d 1220, 1221 (1985)).
It further could not be found that any of Wal-Mart's acts or omissions
"`produce[d the plaintiff's] injury, and without which the [shooting]
would not have occurred.'" Wisniewski v. Great Atlantic and Pacific Tea
Co., 323 A.2d 744, 748 (Pa. Super. 1974) (quoting Covne v. Pittsburgh
Rvs., 141 A.2d 830, 835 (1958)). As such, Plaintiff could not make out
the causation element of her negligence claim and summary judgment for
Defendant is warranted on those grounds.
B. Count II: Negligent Entrustment
Count II of Plaintiff's Complaint alleges that by selling to Bryan the
ammunition that he ultimately used to shoot his wife, Wal-Mart is liable
to Plaintiff on grounds of negligent entrustment. (See Compl. ¶¶
20-23.) Under Section 308 of the Restatement (Second) of Torts, which
Pennsylvania has adopted to define negligent entrustment,
[i]t is negligence to permit a third person to use
a thing or to engage in an activity which is under
control of the actor, if the actor knows or should
know that such person intends or is likely to use
the thing or to conduct himself in the activity in
such a manner as to create an unreasonable risk of
harm to others.
Restatement (Second) of Torts § 308 (1965); Ferry v.
Fisher, 709 A.2d 399, 403 (Pa. Super. 1998). Based on the record
before us, we find that no reasonable jury could conclude that Wal-Mart
knew, or should have known, that Bryan either intended or was likely to
use the ammunition Wal-Mart sold to him to risk harm to anyone. As such,
we must grant the Motion for Summary Judgment with respect to Count II.
Plaintiff has set forth no evidence that Wal-Mart had reason to know
the state of Bryan's mind the night of August 29, 1999. Plaintiff admits
that despite the numerous times her husband had been at the store,
including during the few days preceding the tragic events during which
their domestic dispute had escalated, Bryan never behaved disruptively,
violently, or in any way threatened anyone at the Wal-Mart. (See Midgette
Dep. at 109-110 (identifying a non-violent argument about a vehicle as
the only possible scene Bryan may have displayed at Wal-Mart.))
Moreover, the clerk who sold the ammunition indicated that Bryan
Midgette was very calm and courteous during the purchase, which were
bullets for a twenty-two caliber firearm, a common hunting ammunition and
a common purchase at Wal-Mart. (Emmell Dep. at 10-12.) Nothing about the
encounter would give rise to suspicion of Bryan's future intentions.
While it is pure speculation, considering Mr. Midgette's mental health
history, it is possible that at the time he purchased the ammunition, he
did intend to use it for a lawful purpose, then decided during the time
that ensued prior to the shooting to use it attempt a homicide-suicide.
In such a
scenario, it would be impossible for Wal-Mart to have reason to believe
that at the time he purchased the bullets, Bryan intended to commit a
Regardless of the scenario, considering the absence of any kind of
violence or disturbing behavior by Bryan at any time on the Wal-Mart
premises, and certainly considering the absence of any violence against
Plaintiff since the barstool incident, despite the number of encounters
between the two parties, no jury could reasonably find that Wal-Mart knew
or had reason to know that Bryan either intended or was likely to use the
ammunition to create an unreasonable risk of harm to anyone.
Furthermore, Bryan, a hunter, owned and used several firearms, and had
never been in trouble regarding his use of a firearm. (See Midgette Dep.
at 50-51, 71-72, 126.) There is no evidence to lead a jury to find that
Wal-Mart would anticipate, or have reason to anticipate, that Mr.
Midgette would abuse a firearm. Plaintiff, who knew him better than
anyone, did not think he would hurt anyone (Midgette Dep. at 136), nor
did she have reason to believe he ever would abuse a firearm. (See
Midgette Dep. at 50-52.)
Finally, we are not persuaded by Plaintiff's use of Brown v. Wal-Mart
Stores. Inc., 976 F. Supp. 729 (W.D. Tenn. 1997), a case involving
Wal-Mart's sale of ammunition to an individual under twenty-one years of
age, despite federal statutory restrictions on some of such sales, to
attempt to show Defendant's negligence. Brown is not binding on this
Court, and is clearly distinguishable.
First, the case involves Tennessee tort law, making it wholly
inapplicable. Furthermore, the court there denied summary judgment not
based on substantive grounds, but rather on procedural grounds.
Wal-Mart's motion for summary judgment basically ignored the negligent
entrustment claim, addressing it only by stating conclusorily that
the plaintiff had failed to state a legally recognizable claim under
Tennessee law. Consequently, "[b]y failing to affirmatively attack
Plaintiffs case, Defendant  failed to meet its initial burden under
Rule 56(c)." 976 F. Supp. at 735. We further note that the clerk who sold
the ammunition in this case knew she could not sell to people under
twenty-one years of age and was certain that indeed Bryan met that
criterion. (See Emmell Dep. at 8-9.)
While we do not find Defendant's comparison to Neyman v. Souter,
205 A.2d 685 (Pa. Super. 1964), entirely persuasive, we do find it
persuasive that the negligent entrustment cases involving shootings tend
to focus on minors' use of firearms and the possible negligence of the
adults who owned or controlled those firearms. See 205 A.2d at 687
(discussing cases of negligent entrustment involving weapons). Underage
use of firearms is a clear case for a jury to determine possible
negligent entrustment; the circumstances at issue here are not such a
We do find one such firearms case to be informative. In Johnson v.
Johnson, 600 A.2d 965 (Pa. Super. 1991) (overruled on other grounds), the
court affirmed the grant of summary judgment against a woman who claimed
that the men accompanying the thirteen-year-old boy who accidentally shot
her son during a hunting trip were negligent for entrusting the shooter
with the firearm. Under Section 308 of the Restatement, to state a prima
facie case for negligent entrustment, inter alia, the plaintiff must show
both that the third party could possess the harmful item, or engage in
the harmful action only with the consent of the defendant, and that the
defendant had reason to think that if it withheld consent, the third
party would no longer be able to possess the item or participate in the
activity. § 308, com. a.; Johnson, 600 A.2d at 970-71.
Despite presenting testimony from one of the hunters that he
contemplated taking the gun
away from the teen because the boy was acting erratically, the court
found that the plaintiff did not make out a prima facie case because she
could not show that the particular hunter ever had control of the boy or
the firearm. 600 A.2d at 971. The only such person who could control the
boy and his possession of the gun was his father and thus, only his
father could be found negligent. Id.
Unlike in Johnson, where the court at least found that the testimony
showed that the defendant had reason to believe that he might have been
able to prevent the shooting, here, Plaintiff cannot show that if it did
not sell ammunition to Bryan that it would have reason to believe it
could have prevented him from having it. It is undisputed that Bryan was
under no kind of restriction preventing him from using a firearm or
ammunition. Further, Wal-Mart clearly is not the only place where one can
purchase ammunition, especially for a firearm as common as a twenty-two
Thus, even if Wal-Mart had refused to sell to Bryan (i.e., withdrew
consent), based on the events of the preceding few days, it still would
have no reason to believe, and based on the availability of ammunition
elsewhere, could not have believed, that it could have prevented the
shooting. Wal-Mart simply had no control over Bryan and thus could not
have prevented the shooting from occurring. As such, Plaintiff's
negligent entrustment claim must fail and, as to Count II, we grant
summary judgment to Defendant.
Plaintiff's two-count Complaint alleges both that Defendant was
negligent in its failure to protect its employee, and that it is liable
on grounds of negligent entrustment for selling to Bryan Midgette the
ammunition he eventually used to shoot Plaintiff and himself. We find
that Wal-Mart did not breach any duty that it may have owed to
Plaintiff, and that any breach of duty perceived by Plaintiff could not
constitute a legal cause of Plaintiff's unfortunate injuries. As such,
because we find that, as a matter of law, Plaintiff could not make out a
prima facie case of negligence, we grant Defendant's Motion for Summary
Judgment with respect to Count I.
We further grant Defendant's Motion with respect to Count II because we
find that no reasonable jury could conclude that Wal-Mart had notice of
any kind. As such, Plaintiff could not establish a prima facie case of
negligent entrustment. Thus, there are no issues of material fact for a
jury to address. This case is dismissed.
AND NOW, this 5th day of January, 2004, after full consideration of
Defendant's Motion for Summary Judgment, filed October 14, 2003, the
Plaintiff's response thereto, filed November 13, 2003, Defendant's reply,
filed November 26, 2003, and Plaintiffs surreply, filed December 8, 2003,
it is hereby ORDERED that said motion is GRANTED, and judgment is entered
in favor of Defendant on all claims. This case is closed.
AND NOW, this 5th day of January, 2004, judgment is entered in favor of
Defendant on all claims and against Plaintiff.