McClung v. Delta Square Ltd. Partnership

Decision Date28 October 1996
Citation937 S.W.2d 891
PartiesRoger L. McCLUNG, Individually and on behalf of his Minor Children, Bridget L. McClung, Kyle L. McClung, and Benjamin L. McClung, Plaintiff/Appellant, v. DELTA SQUARE LIMITED PARTNERSHIP, a North Carolina Limited Partnership, Delta Square G. P., Inc., a North Carolina Corporation, Samuel M. Longiotti, and Wal-Mart Stores, Inc., a Delaware Corporation, Defendants/Appellees.
CourtTennessee Supreme Court

Bruce S. Kramer, Melissa R. Magee, Borod & Kramer, Memphis, for Appellant.

Tom Nelson National Victim Center, Arlington, VA, Jeffrey R. White, Association of Trial Lawyers of America, Washington, D.C., John H. Stein, National Organization for Victim Assistance, Washington, D.C., Tracy Shaw, Alice Margaret Essary, International Mass Retail Association, Nashville, Kenneth R. Shuttleworth, Archie Sanders, III, Tennessee Defense Lawyers Association, R. Sadler Bailey, Tennessee Trial Lawyers Association, Memphis, Mary Ann Parker, Trial Lawyers for Public Justice, P.C. Nashville, Leslie Bruechner, Trial Lawyers for Public Justice, P.C. Washington, D.C., Jane Nady Burnley, Victims' Assistance Legal Organization, Inc., McLean, VA, for Amicus Curiae.

John D. Richardson, Kevin Combs, The Richardson Law Firm, Memphis, for Appellee Delta Square Limited Partnership, Delta Square G. P., Inc., and Samuel M. Longiotti.

W.O. Luckett, Jr., Rossie, Luckett, Parker & Laughlin, Memphis, for Appellee Wal-Mart Stores, Inc.


WHITE, Justice.

This case presents the question of the continued viability of Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975), in which this Court strictly limited the duty of care owed by owners and occupiers of business property to customers. Here, plaintiff's wife, a customer at a shopping center, was abducted from the parking lot, and later raped and murdered. Plaintiff sought recovery against defendants, owners, operators, and tenants, based on negligence for not providing security in their parking lot. The trial court granted summary judgment in favor of defendants and the Court of Appeals affirmed. We granted plaintiff's application for permission to appeal to review the standard for determining business owner liability for injuries occurring on the business premises and caused by the criminal acts of third parties.


On September 7, 1990, thirty-seven year-old Dorothy McClung, plaintiff's wife, went shopping at Wal-Mart in the Delta Square Shopping Center in Memphis. As she was returning to her parked car around noon Mrs. McClung was abducted at gunpoint and forced into her car by Joseph Harper, a fugitive from Chattanooga. 1 Later, Harper raped Mrs. McClung and forced her into the trunk of her car where she suffocated. Her body was found by hunters in a field in Arkansas the day after the abduction. Harper confessed, and was convicted of kidnapping, rape, and murder. He committed suicide after being sentenced to life in prison.

Plaintiff filed suit against defendants on his own behalf and on behalf of his and Mrs. McClung's three minor children. In his suit, he alleged that defendant Wal-Mart, the anchor tenant at the Delta Square Shopping Center, and defendant Delta Square, the owner and operator of the center, were negligent in failing to provide security measures for the parking lot and that their negligence was the proximate cause of Mrs. McClung's death.

Feeling compelled to follow this Court's decision in Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975), the trial court reluctantly granted defendants' motions for summary judgment. The trial judge noted that he was "bothered by the view that the entrepreneur has no responsibility irrespective of the nature of the risk created outside of the place of business--the risk of criminal activity." In affirming the grant of summary judgment, the Court of Appeals observed that "[a]lthough the Supreme Court may wish to adopt a broader rule of liability for shopping center owners, operators, and merchant tenants, we are constrained to follow the test established in Cornpropst." We granted review to determine whether the decision in Cornpropst should be retained as the rule for determining liability under circumstances in which injury occurring on business premises is caused by the criminal acts of third persons.


As is noted, this case is before the Court on the trial court's grant of summary judgment. Therefore, we must review the record without attaching any presumption of correctness to the trial court's judgment to determine whether the absence of genuine issues of material facts entitle defendants to judgment as a matter of law. Carvell v. Bottoms, 900 S.W.2d 23 (Tenn.1995); Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn.1993); Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993). In reviewing the record, we must view the evidence in the light most favorable to plaintiff and draw all inferences in plaintiff's favor. If both the facts and conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion, summary judgment should be granted. Carvell v. Bottoms, 900 S.W.2d at 26.


To establish negligence, one must prove: (1) a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995). Our focus here is primarily on the first element: the duty of care. That question--the duty which the defendant owed plaintiff--is a question of law to be determined by the court. Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn.1994); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993).

We have defined duty of care to be the legal obligation owed by defendant to plaintiff to conform to a reasonable person standard of care for protection against unreasonable risks of harm. McCall v. Wilder, 913 S.W.2d at 153. The "imposition of a legal duty reflects society's contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another's act or conduct." Bradshaw v. Daniel, 854 S.W.2d at 870. "Indeed, it has been stated that 'duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.' " Id. (quoting W. Keeton, Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984)); accord Craig v. A.A.R. Realty Corp., 576 A.2d 688, 692 (Del.Sup.1989) (duty is "frequently an expression by the court of evolving public policy").

Assuming a duty is owed, it must be determined whether defendant has exercised reasonable care under the circumstances. McCall v. Wilder, 913 S.W.2d at 153. If defendant has not, the duty has been breached. Id. at 153-54. In this regard, we have observed that "[t]he term reasonable care must be given meaning in relation to the circumstances. Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending the particular situation and is to be commensurate with the risk of injury." Doe v. Linder Const. Co., Inc., 845 S.W.2d 173, 178 (Tenn.1992) (citations omitted).

The trial court and the Court of Appeals based the award of summary judgment in this case on Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975), in which this Court held that shop owners do not owe to customers a duty to protect them against criminal acts of third parties unless the owner knew or should have know the acts were occurring or about to occur. In that case, decided more than two decades ago, a female shopper, while walking to her car in a shopping center's parking lot, was assaulted and narrowly escaped being kidnapped. She sued the shopping center's owners, operators, and tenants for negligence in failing to provide adequate security measures to protect customers from reasonably foreseeable criminal conduct. She alleged that there were no security guards in the parking lot and that no other protective measures were used or installed. She claimed that, prior to her attack, other acts of violence had occurred either on the premises or in the immediate area of the shopping center. Cornpropst v. Sloan, 528 S.W.2d at 190-91. Thus, plaintiff contended that defendants were negligent in that they "knew, or in the exercise of reasonable care and ordinary care should have known ... that the Plaintiff invitee would be exposed to potential danger and personal harm, and unprotected against criminal acts...." Id. at 191.

The Court in Cornpropst began its analysis by observing that the common law imposed no duty on anyone, except the government, to protect others from criminal acts of unknown third persons, even though it did impose upon merchants a duty to exercise reasonable care to maintain their premises in a reasonably safe condition. Cornpropst v. Sloan, 528 S.W.2d at 191. The Court noted, however, that exceptions to the common law rule had developed in circumstances in which a "special relationship", such as a common carrier and passenger or innkeeper and guest, existed between the parties, but refused to base liability on the relationship between the owner or occupier of business property and the customer. Id. at 191-93.

Choosing to follow the then-prevailing rule, the Cornpropst Court refused to impose a duty in the case which it characterized as involving "vague allegation[s] that various crimes, assaults and other acts of violence had been committed either on the premises or in the immediate area." Id. at 193. The Court deemed it unfair to impose a duty upon the shopping center owner because the attacker "gave no notice by word, act, dress or deed prior to the commission of the attack that would have indicated to anyone an intention of purpose to commit an assault." Id. at 197. In affirming the dismissal of the complaint, the Court adopted the following rule,...

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