Therrien v. Target Corp.

• Decision Date: 09 August 2010
• Docket Number: No. 09-5047,09-5064.,09-5047
• Citation: 617 F.3d 1242
• Parties: Timothy S. THERRIEN, Plaintiff-Appellee/Cross-Appellant,v.TARGET CORPORATION, a Minnesota corporation, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

617 F.3d 1242

Timothy S. THERRIEN, Plaintiff-Appellee/Cross-Appellant,v.TARGET CORPORATION, a Minnesota corporation, Defendant-Appellant/Cross-Appellee.

Nos. 09-5047, 09-5064.

United States Court of Appeals, Tenth Circuit.

Aug. 9, 2010.

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Philip R. Richards (Jason T. Seay and Thomas D. Hird, with him on the briefs), Richards & Connor, PLLP, Tulsa, OK, for Defendant-Appellant/Cross-Appellee.

Paul DeMuro (J. Michael Medina, with him on the briefs), Frederic Dorwat, Lawyers, Tulsa, OK, for Plaintiff-Appellee/Cross-Appellant.

Before HARTZ, HOLLOWAY, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

Timothy Therrien was stabbed when he tried to help apprehend a shoplifter at a Target store. He sued Target Corporation for negligently causing his injuries. After trial in the United States District Court for the Northern District of Oklahoma, the jury awarded Mr. Therrien $500,000 in damages.

Target appeals, contending that (1) there was insufficient evidence to support the verdict, (2) the district court gave incorrect jury instructions, (3) the court erred in ruling on the admissibility of certain evidence, and (4) the court should have granted remittitur or a new trial. Mr. Therrien cross-appeals the court's refusal to submit punitive damages to the jury. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUNDA. The Stabbing

On June 3, 2005, Stacie Pavey was the lone security guard patrolling a Target store in Tulsa, Oklahoma (the Tulsa Store). After observing a man conceal some merchandise, Pavey decided that he was a shoplifter and planned to apprehend him. Pavey did not call for assistance. He waited until the suspect reached the exit vestibule (the space between the two sets of exit doors), ran to the suspect from behind, and, without identifying himself, put his hand on the suspect's arm. A struggle ensued as the suspect tried to flee.

Mr. Therrien was shopping in the store. He saw what was happening and quickly went to the vestibule. The parties dispute what happened next. Mr. Therrien testified that on reaching the vestibule, “I stood there for a couple of seconds ... and Mr. Pavey looked at me, I looked at him, and he said, ‘I'm store security. Please help me.’ ” Aplt.App., Vol. III at 601. Pavey denied asking for Mr. Therrien's help and testified that he had told Mr. Therrien to “back away.” Id., Vol. IV at 788.

Whatever passed between the two men, Mr. Therrien jumped into the fray. He tried to restrain the suspect, who pulled out a knife and tried to stab Mr. Therrien. Despite pleas from Pavey to let the suspect go, Mr. Therrien held onto him. When the suspect stopped struggling, Mr. Therrien relaxed his grip; the suspect immediately spun around, stabbed Mr. Therrien in the abdomen, and ran away. The vestibule episode-from the time Pavey confronted the suspect to the escape-lasted less than 20 seconds.

Shoplifting is not a rarity at Target stores. Pavey testified that “[t]here was a consistent level of criminal activity at [the Tulsa] store” and he made apprehensions “quite frequently.” Id., Vol. III at 693. Also, there were occasional violent incidents at the store. Pavey had seen assaults, purse-snatchings, and robberies. Julie Plonczynski, the Tulsa Store's chief of security personnel, testified that two shoplifters, in separate incidents, had tried to use weapons to escape apprehension-one by pulling a knife and one by spraying mace. On at least one occasion a customer had become involved in an apprehension. Pavey testified that less than three months before the Therrien episode, a customer had tried to help Pavey by grabbing a shoplifting suspect in the store parking lot.

Target had established policies for dealing with suspected shoplifters. One manual said:

It is always advisable to intervene as a team of two or more unless the situation dictates or demands solo intervention. If you are alone on a unit and an individual breaks a glass and threatens suicide, you may feel it is, in your best professional judgment, a wise decision not to leave the scene to obtain assistance. Under all other circumstances, it is best to intervene as a team.

Id., Vol. V at 1320. The manual explains that a team effort is “much safer for all involved,” and solo apprehensions tend to “precipitate a confrontive atmosphere.” Id. The manual also directs security guards to approach the shoplifter from the “front and slightly to the side,” id. at 1245, and to identify themselves as Target security personnel. Guards are further advised to give the suspect a chance to cooperate and return to the store before touching or grabbing him. As Plonczynski testified at trial, these policies are meant to keep apprehensions as “low-key and nonviolent as possible.” Id., Vol. IV at 858. When asked about Pavey's being the only security officer on duty at the time of Mr. Therrien's injury, she said that she was understaffed; although the Tulsa Store had budgeted security guards for 120 hours a week, it was staffed for only 80 hours a week.

There was evidence that Target encouraged security guards to make apprehensions. Pavey's performance review on August 11, 2004, stated that Pavey “need[s] to increase [his] External apprehensions.” Id., Vol. V at 1239. And he testified that “it was [his] perception, that Target had a quota of a certain number of apprehensions that [he] had to make in order to get a good score on [his] review.” Id., Vol. III at 694. Although Plonczynski testified that Target used no quotas, she said that the level of apprehensions “was definitely a measurement of performance which is why it's named the key performance measure.” Id., Vol. IV at 873.

B. Procedural History

Mr. Therrien brought a negligence suit against Target in Oklahoma state court on March 28, 2006. Target removed the case to federal district court. See 28 U.S.C. §§ 1332(a)(1) (diversity jurisdiction), 1441(a) (removal). On June 1, 2006, the district court granted Target's motion to dismiss on the ground that it had no duty to protect invitees from criminal acts by third persons. But we reversed on appeal. See Therrien v. Target Corp., 216 Fed.Appx. 751 (10th Cir.2007). The case was then tried to a jury on two occasions. After Mr. Therrien rested at the first trial, the court granted Target's motion for judgment as a matter of law under Fed.R.Civ.P. 50(a), explaining that Oklahoma law had not recognized a duty on business owners to take reasonable precautions against third-party criminal conduct, unless “the situation involved an immediate event which the proprietor knew was occurring or about to occur.” Aplt.App., Vol. II at 362. It said that Oklahoma courts had not followed the rule stated in Restatement (Second) of Torts § 344 cmt. f (Restatement) that prior incidents and experience can give rise to a duty.

Less than a week after the court's ruling, however, the Oklahoma Supreme Court decided Bray v. St. John Health System, Inc., 187 P.3d 721 (Okla.2008), which adopted Restatement § 344 cmt. f. Bray was kidnapped in a hospital parking garage and raped. See id. at 723. She sued the hospital for negligence. See id. At the hearing on the hospital's summary-judgment motion, the trial court rejected Bray's argument that past criminal activity in the parking garage gave rise to a duty on the hospital to take reasonable precautions. See id. The state supreme court reversed and remanded for further proceedings to determine whether the hospital had taken adequate precautions. See id. at 725. It endorsed the following statement from § 344 cmt. f:

Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, 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, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Id. at 724 n. 2; see

id. at 723-24 (adopting the entirety of comment f).

Citing to Bray, Mr. Therrien moved for a new trial under Fed.R.Civ.P. 59(a), and the district court granted the motion. At the second trial Mr. Therrien began with two theories of liability-negligence and the rescue doctrine; but after both sides rested, he withdrew his rescue-doctrine claim. The jury found Target negligent and awarded Mr. Therrien $500,000 in damages. The jury, which was instructed on comparative negligence, also found that Mr. Therrien was not negligent.

Target appeals, arguing (1) that there was insufficient evidence of negligence, (2) that the jury was not correctly instructed on the elements of negligence, (3) that the jury should have been instructed on assumption of the risk, (4) that evidence of past incidents in the Tulsa Store and Target's security policies should have been excluded, (5) that it should have been permitted to introduce evidence of Mr. Therrien's psychological history and prior bad acts, and (6) that it should have been granted remittitur or, alternatively, a new trial. Mr. Therrien cross-appeals, contending that the district court should have submitted the issue of punitive damages to the jury.

II. DISCUSSIONA. Sufficiency of the Evidence

Target claims that there was insufficient evidence that it had been negligent.

Our standard of review reflects our system's profound respect for fact-finding by a jury of citizens:

When a jury verdict is challenged on appeal,

...