Hiller v. Wal-Mart Stores E., LP
| Decision Date | 08 March 2022 |
| Docket Number | C. A. 3:20-cv-00056-SAL |
| Court | U.S. District Court — District of South Carolina |
| Parties | Tyrell Hiller, Plaintiff, v. Wal-Mart Stores East, LP, Walmart, Inc., and Wal-Mart Real Estate Business Trust, Defendants. |
This matter is before the court on Defendants Wal-Mart Stores East, LP, Walmart, Inc., and Wal-Mart Real Estate Business Trust's (“Defendants”) Motion for Summary Judgment (the “Motion”). [ECF No. 25.] For the reasons set forth herein, the Motion is granted.
This case stems from a shooting that occurred in the vestibule of a Walmart located at 7520 Garners Ferry Road, Columbia, South Carolina (the “Walmart store”). Plaintiff Tyrell Hiller (“Plaintiff”) was injured in the shooting and he brought this negligent security action against Defendants.
On December 24, 2016, Plaintiff and three other individuals were shopping in the Walmart store. [ECF No. 25-2, Pl.'s Dep. at 38:15-21, 41:3-6; see also ECF No. 1-1, Compl. at ¶ 11.] As Plaintiff exited the store, he saw Mr. Elliott Caldwell (“Caldwell”) sitting in the store vestibule. Pl.'s Dep. at 42:4-15, 43:20-44:7, 59:5-11; [ECF No. 25-3 Caldwell Dep. at 24:20-21.] As explained in further detail below, Plaintiff and Caldwell knew each other and had previous interactions. On the day at issue, Caldwell had been dropped off at the front entry and was sitting on a motorized scooter waiting for his ride to park and enter the store. Caldwell Dep. at 23:2-9, 23:25-6, 24:11-18. As Plaintiff passed Caldwell, the two exchanged words. Pl.'s Dep. at 43:23- 44:7, 56:14-19; Caldwell Dep. at 25:7-26:2. Plaintiff proceeded to exit the Walmart store. Pl.'s Dep. at 44:8-13, 56:18-57:4; Caldwell Dep. at 25:11-16.
After exiting the store and entering the parking lot, Plaintiff turned around and reentered the vestibule. Pl.'s Dep. at 44:9-13, 57:2-15; see also Caldwell Dep. at 26:7-10. Plaintiff testified that he “turn[ed] immediately around” after exiting the building. Pl.'s Dep. at 57:2-4. As soon as Plaintiff reenters the vestibule, Caldwell “jump[s] up, ” Pl.'s Dep. at 57:4, and begins shooting at Plaintiff. Pl.'s Dep. at 116:15-16; Ex. H at 04:28:11 PM. Caldwell shot and injured Plaintiff.
Caldwell testified that he was sitting in the vestibule for approximately five minutes before the shooting. Caldwell Dep. at 23:6-9, 19-24. Four surveillance videos show Plaintiff exit the store, walk in a circle in the parking lot, and reenter the store before Caldwell starts shooting. [See ECF Nos. 25-6, [1] 25-7, [2] 25-8, [3] 25-9.[4] The time between when Plaintiff first exits the building and then renters the building is just under one minute. [ECF No. 25-6 at 4:27:10 PM (showing Plaintiff exit the building); ECF No. 25-8 at 4:28:05 PM (showing Plaintiff beginning to reenter the building with a group).] And the time between when Plaintiff reenters the building and Caldwell starts shooting is less than 10 seconds. [ECF No. 25-9 ()]; see also Caldwell Dep. 25:5-6 (“[W]hen I see him walk back in towards me, I shot him.”); Pl.'s Dep. 121:1 ().
Following the December 24 shooting, Caldwell pleaded guilty to a charge of attempted murder and receives a 4-year sentence. [ECF No. 25-4.]
As noted above, however, the December 24 shooting was not the first interaction between Plaintiff and Caldwell. The same year, approximately one or two months prior, Plaintiff and Caldwell were involved in a physical altercation that resulted in Plaintiff shooting Caldwell at another establishment, the African Flower. Pl.'s Dep. at 50:2-52:12; Caldwell Dep. at 13:9-17:24, 29:6-21. Caldwell accused Plaintiff of “sho[oting] up his house, ” and a physical altercation ensued. Pl.'s Dep. 51:9-52:10. In that incident, Caldwell had a gun, the gun dropped to the floor, Plaintiff obtained possession of the gun, and Plaintiff fired at Caldwell. Id.; see also Caldwell Dep. 14:1-13. Plaintiff shot Caldwell in the leg. Caldwell Dep. at 16:10-16. Caldwell had surgery following the shooting to insert a rod into his leg. Id. at 16:17-21. Caldwell was still in physical therapy for his leg at the time of the December 24 shooting. Id. at 17:5-7.
On December 3, 2019, Plaintiff filed this negligence action against Defendants in the Court of Common Pleas for Richland County, South Carolina. [ECF No. 1-1.] Plaintiff alleges that Defendants were negligent in failing to provide security sufficient to prevent the foreseeable risk of the shooting upon the premises. Id. On January 6, 2020, Defendants removed the action to this court on the basis of diversity jurisdiction. [ECF No. 1.]
On April 12, 2021, Defendants filed the Motion that is the subject of this order, seeking judgment as a matter of law on Plaintiff's negligence claim. [ECF No. 25.] Defendants argue that Plaintiff cannot establish that the third-party criminal act was foreseeable or that Walmart employed unreasonable security measures. Plaintiff opposes the Motion, arguing prior criminal activity on the premises rendered the third-party criminal act foreseeable and Defendants failed to ensure adequate safety measures were in place when they failed to stop Caldwell and question him about his 5-minute wait in the vestibule. [ECF No. 26.] Defendants submitted their reply on May 3, 2021, and the matter is now ripe for resolution by the court. [ECF No. 27.]
Summary judgment is appropriate if a party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party.” HealthSouth Rehab. Hosp. v. American Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party makes this threshold demonstration, the non-moving party may not rest upon mere allegations or denials averred in the pleading, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56; see also Celotex, 477 U.S. at 323. A party asserting that a fact is genuinely disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). A litigant is unable to “create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). “[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.” Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1996).
Plaintiff's only claim sounds in negligence. Plaintiff's theory is that Defendants breached a duty owed to him, as a business invitee, to protect him from harm while he was patronizing the Walmart store. Any claim of negligence requires a plaintiff to establish that (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty; and (3) the breach resulted in injury to the plaintiff. See Doe ex rel. Doe v. Wal-Mart Stores, Inc., 711 S.E.2d 908, 911 (S.C. 2011). Defendants' Motion focuses on whether Plaintiff can establish the first element-duty of care. “If there is no duty, the defendant is entitled to judgment as a matter of law.” Id.
Here the parties agree that Plaintiff was an invitee at the time of the shooting. [ECF No. 25-1 at 6; ECF No. 26 at 4.] “The duty of a storeowner to its invitees is to take reasonable care to protect them.” Bullard v Ehrhardt, 324 S.E.2d 61, 62 (S.C. 1984). As further clarified by the South Carolina Supreme Court, “a business owner has a duty to take reasonable action to protect its invitees against the foreseeable risk of physical harm.” Bass v. Gopal, Inc., 716 S.E.2d 910, 913 (S.C. 2011). South Carolina has adopted the balancing test to determine foreseeability. Id. at 915-16.[5] The balancing test explains how to determine (1) if a crime is foreseeable and (2) in those instances when a crime is foreseeable, the economically feasible security measures required to prevent such harm. Id. at 915. Under the test, “the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner, but their absence does not foreclose the duty to provide some level of security if other factors support a heightened risk.” Id. Plaintiff bears the burden on foreseeability and feasibility, meaning, to survive summary judgment, Plaintiff must offer some evidence that “a crime of that nature was foreseeable to” Defendants and that the “preventative actions were unreasonable given the risk.” Jenkins v. CEC Enter., Inc., 421 F.Supp.3d 257, 263 (D.S.C. 2019). Defendants challenge the sufficiency of Plaintiff's evidence to survive summary judgment on both prongs of the balancing test. They argue that Plaintiff has not-and cannot-present evidence that the shooting was foreseeable or that their preventative actions were unreasonable. The court...
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