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January 5, 2004.


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 Judgment.


  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 Page 2 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 Page 3 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. Page 4

  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 Page 5 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 Page 6 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, 8/29/99.)

  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 Page 7 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 suffered.

  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, answers to Page 8 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 establish an Page 9 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 ...

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