The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge
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
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.
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 ...