Cullum v. McCool

• Decision Date: 18 December 2013
• Docket Number: No. E2012–00991–SC–R11–CV.,E2012–00991–SC–R11–CV.
• Citation: 432 S.W.3d 829
• Parties: Jolyn CULLUM et al. v. Jan McCOOL et al.
• Court: Tennessee Supreme Court

432 S.W.3d 829

Jolyn CULLUM et al.

v.Jan McCOOL et al.

No. E2012–00991–SC–R11–CV.

Supreme Court of Tennessee, at Knoxville.

Sept. 5, 2013 Session.

Dec. 18, 2013.

G. Andrew Rowlett and Behnaz Sulkowski, Nashville, Tennessee, for the appellant, Wal–Mart Stores East, LP.

Amelia C. Roberts, Chattanooga, Tennessee, for the appellees, Jolyn Cullum and Andrew Cullum.

Lynda Motes Hill, Nashville, Tennessee, for the Amicus Curiae, National Federation of Independent Business Small Business Legal Center.

OPINION

SHARON G. LEE, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and CORNELIA A. CLARK and WILLIAM C. KOCH, JR., JJ., joined. JANICE M. HOLDER, J., filed a separate concurring and dissenting opinion.

SHARON G. LEE, J.

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store's parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron's medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store's motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs' allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron's complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.

BACKGROUND

This is an appeal of an order of dismissal based on the trial court's determination that the plaintiffs failed to allege sufficient facts in their complaint to state a cause of action. In reviewing this decision, we must presume that all allegations in the complaint are true. In January 2012, Jolyn Cullum and her husband, Andrew Cullum, sued Jan McCool, her husband, William Harry McCool, and Wal–Mart ¹ in the Circuit Court for Hamilton County. The complaint alleges that on February 7, 2011, Ms. Cullum went to the Wal–Mart Super Center (“Wal–Mart”) in Red Bank, Tennessee, to shop for groceries. After finishing her shopping, Ms. Cullum went to her car and began placing her groceries inside the trunk of her car. At about the same time, Ms. McCool, another Wal–Mart patron, returned to her car, which was parked across from Ms. Cullum's vehicle. After getting into her car, Ms. McCool suddenly placed her car in reverse without looking in her rearview mirror and backed directly into Ms. Cullum. Ms. Cullum was knocked over and her shopping cart landed on top of her, trapping her between her car and Ms. McCool's car. Ms. Cullum screamed for help, but Ms. McCool did not initially notice her. Finally, after bystanders alerted Ms. McCool to Ms. Cullum's plight, Ms. McCool got out of her car and attempted to move Ms. Cullum, picking up her leg in extreme positions and causing her excruciating pain.

Ms. Cullum did not know it, but Wal–Mart employees had just refused to fill Ms. McCool's medical prescriptions because they believed Ms. McCool was intoxicated. When her prescriptions were not filled, Ms. McCool became belligerent. The pharmacy employees at Wal–Mart were familiar with Ms. McCool as someone who had been in the store intoxicated on previous occasions. When the pharmacy employees ordered Ms. McCool to leave the store, they knew she was intoxicated, was alone and would be operating a motor vehicle. They did not call the police or take any further action. The Cullums contended that Wal–Mart was guilty of negligence and gross negligence for failing to protect Ms. Cullum from Ms. McCool.

Wal–Mart filed a motion to dismiss, contending that the Cullums failed to allege any facts upon which relief could be granted. Wal–Mart argued that it has no duty to call the police after an apparently intoxicated patron enters its store and then leaves after being ordered to do so by store employees. Wal–Mart also answered the complaint, asserting several affirmative defenses, including comparative fault.

The trial court granted Wal–Mart's motion to dismiss, reasoning that Wal–Mart employees had no duty to call the police, call a taxi, restrain Ms. McCool, prevent her from driving or warn its customers that she was intoxicated and might harm them. The trial court certified the ruling as a final judgment under Tenn. R. Civ. P. 54.02 and denied the Cullums' Tenn. R. Civ. P. 59.04 motion for reconsideration.

The Cullums appealed. The Court of Appeals reversed the trial court, reasoning that the trial court should have focused on Wal–Mart's duty to protect a potential plaintiff as opposed to its ability to control a third party. Cullum v. McCool, No. E2012–00991–COAR3–CV, 2012 WL 5384659, at *4 (Tenn.Ct.App. Nov. 5, 2012). The appeals court determined that Wal–Mart could have restrained its visibly inebriated customer or informed the police that she had left the store. Id. at *5. The appeals court also ruled that Ms. Cullum's injuries were foreseeable because Wal–Mart had actual notice of a specific danger on its premises when its employees expelled the belligerent and intoxicated Ms. McCool. Id. The appeals court concluded that the Cullums had alleged sufficient facts to establish that Wal–Mart owed Ms. Cullum a duty to protect her from a known danger in the parking lot. Id. at *6.

We granted Wal–Mart's Tenn. R.App. P. Rule 11 application.

ANALYSIS

In this premises liability case, we must determine whether the Cullums' complaint against Wal–Mart is legally sufficient to survive Wal–Mart's motion to dismiss. Under Tenn. R. Civ. P. 12.02(6), the purpose of a motion to dismiss is to determine whether the pleadings state a claim upon which relief can be granted. Trau–Med of Am., Inc. v. Allstate Ins., 71 S.W.3d 691, 696 (Tenn.2002). “Our motion-to-dismiss jurisprudence reflects the principle that this stage of the proceedings is particularly ill-suited for an evaluation of the likelihood of success on the merits or of the weight of the facts pleaded, or as a docket-clearing mechanism.” Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422, 437 (Tenn.2011). In reviewing these motions, we are required to construe the complaint liberally, presume that all factual allegations are true and give the plaintiff the benefit of all reasonable inferences. Id. Only when it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief should a trial court grant a motion to dismiss. Webb, 346 S.W.3d at 426. The lower courts' legal conclusions are reviewed de novo without any presumption of correctness. Id.

In this negligence action, the Cullums were required to prove (1) a duty of care owed by Wal–Mart to Ms. Cullum; (2) a breach of the duty of care by Wal–Mart; (3) damages; (4) factual cause; and (5) proximate, or legal, cause. McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 894 (Tenn.1996). The issue we address is whether Wal–Mart owed Ms. Cullum a duty of care. This issue presents a question of law, which we review de novo. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn.2000).

Duty is “a legal obligation to conform to a reasonable person standard of care in order to protect others against unreasonable risks of harm.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn.2008). An unreasonable risk of harm arises and creates a legal duty if the foreseeability and gravity of harm caused by a defendant's conduct outweighs the burdens placed on a defendant to engage in other conduct that would prevent such harm. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995) (citing Restatement (Second) of Torts § 291 (1964)). This weighing of interests, or balancing process, requires us to examine the facts alleged in the complaint. “Thus, when a claim is challenged by a Tenn. R. Civ. P. 12.03 or 12.02(6) motion ... the court must determine, based on the facts alleged in the complaint, whether the defendant owes a duty to the plaintiff.” Satterfield, 266 S.W.3d at 368 n. 45.

“[P]ersons do not ordinarily have a duty to act to protect others from dangers or risks except for those that they themselves have created.” Id. at 357. However, legal duties can also arise when there is a special relationship between the parties. See Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn.2009); Nichols v. Atnip, 844 S.W.2d 655, 662 (Tenn.1992); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 859 (Tenn.1985). These duties arise when the defendant has a special relationship with either the individual who is the source of the danger or the person who is at risk. Giggers, 277 S.W.3d at 364 (citing Lindsey, 689 S.W.2d at 860). A long-recognized special relationship, which is the focus of this case, is that between a business owner and patron.²See, e.g., 2 Dan B. Dobbs, The Law of Torts § 324 (2008 Supp.) (noting that early court decisions recognized that business owners “owed affirmative duties of reasonable care to protect their customers and sometimes others rightfully upon their premises”); 65A C.J.S. Negligence § 650 (2013) (“A storekeeper must exercise ordinary care to protect his or her customers and other invitees from the wrongful or negligent acts of third persons which he or she has reasonable cause to anticipate.”).

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