Miller v. Wal-Mart Stores, Inc.

Citation219 Wis.2d 250,580 N.W.2d 233
Decision Date24 June 1998
Docket NumberNo. 96-2529,WAL-MART,96-2529
PartiesStanley K. MILLER and Deborah D. Miller, Plaintiffs-Respondents, v.STORES, INC., Defendant-Appellant. d
CourtUnited States State Supreme Court of Wisconsin

For the defendant-appellant there were briefs (in the Supreme Court) by Thomas R. Thibodeau, Jerome D. Feriancek and Johnson, Killen, Thibodeau and Seiler, P.A., Duluth, MN and oral argument by Joseph J. Roby, Jr. and Jerome D. Feriancek.

For the plaintiffs-respondents there were briefs (in the Supreme Court) by Forrest O. Maki, Robert R. Kanuit and Weiby, Maki, Durst, Ledin, Bick & Lehr, S.C ., Superior and oral argument by Robert R. Kanuit.

Amicus curiae brief was filed by Mark K. Thomsen and Cannon & Dunphy, S.C., Brookfield for Wisconsin Academy of Trial Lawyers.

Amicus curiae brief was filed by Beth Rahmig Pless and Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay for Civil Trial Counsel of Wisconsin.

¶1 WILLIAM A. BABLITCH, Justice

Wal-Mart Stores, Inc. (Wal-Mart) appeals from the circuit court's entry of judgment of a jury verdict awarding Stanley K. Miller (Miller) $50,000 in compensatory and punitive damages. Three Wal-Mart employees stopped and detained Miller because they suspected him of shoplifting. Miller filed this action, claiming that Wal-Mart unlawfully stopped, detained, interrogated, and searched him. The jury determined that Wal-Mart was negligent in the hiring, training or supervising of its employees, which caused Miller damages. The jury further determined that the Wal-Mart employees did not have reasonable cause to believe that Miller had shoplifted.

¶2 The court of appeals certified the case to this court to determine whether the tort of negligent hiring, training or supervising is a valid claim in Wisconsin thereby justifying the jury's award of compensatory and punitive damages and whether merchant immunity under the retail theft statute applies to this case. We conclude that negligent hiring, training or supervision is a valid claim in Wisconsin. However, in this case the Special Verdict form did not present the proper questions regarding the elements of the tort: it did not completely ask whether Miller met the element regarding cause-in-fact. We also conclude that the retail theft statute is applicable to the tort of negligent hiring, training, or supervision, but Wal-Mart is not afforded immunity from civil and criminal liability in this case because it did not meet the statutory elements. Accordingly, we reverse the judgment of the circuit court and remand for further proceedings only with respect to the elements of the tort as set forth in this opinion.

¶3 The facts relevant to this appeal are as follows. When the plaintiff, Miller, left the Wal-Mart store in Superior, Wisconsin three Wal-Mart employees approached him in the store's parking lot. The Wal-Mart personnel stopped Miller because a loss prevention employee, Mr. Richard Maness (Maness), believed that Miller stole a swimsuit. Upon approaching Miller, Maness asked for the swimsuit. The parties dispute the exact nature of the exchange that ensued between Miller and the Wal-Mart employees. Regardless, Maness did not find the swimsuit on Miller and the encounter ended.

¶4 Miller filed an action against Wal-Mart Stores, Inc., alleging that the Wal-Mart employees unlawfully stopped, detained, searched, and interrogated him, which caused him damages. Following a four-day jury trial, the jury, in answering questions on a Special Verdict form, rejected Miller's claims that Wal-Mart, acting through one or more of its employees, was liable for false imprisonment, battery, negligent infliction of emotional distress, and loss of consortium claimed by Miller's spouse. The jury determined, however, that Wal-Mart was negligent in hiring, training or supervising its employees and this negligence was a cause of damage to Miller. The jury also found that Wal-Mart did not have reasonable cause to believe that Miller carried away or concealed unpurchased merchandise. The jury awarded Miller $20,000 in compensatory damages for past mental pain and suffering and $30,000 in punitive damages.

¶5 The circuit court denied Wal-Mart's post-verdict motions for directed verdict, judgment notwithstanding the verdict, change of verdict and answers and, in the alternative, a new trial. Judgment was entered. Wal-Mart appealed from the judgment and from the circuit court's denial of its post-verdict motions. We accepted the court of appeals' certification of the case, pursuant to Wis. Stat. § (Rule) 809.61 (1993-94). 1

¶6 This case presents two issues: first, whether Wisconsin recognizes the tort of negligent hiring, training or supervision and, if so, whether the elements of that tort were satisfied in this case so that the jury's award of compensatory and punitive damages was appropriate; and second, whether merchant immunity, pursuant to Wis. Stat. § 943.50, is applicable in this case.

¶7 Turning to the first issue, the parties correctly agree that whether a cause of action for negligent hiring, training or supervision exists as a claim for relief in Wisconsin is a question of law. See Paskiet v. Quality State Oil Co., 164 Wis.2d 800, 805, 476 N.W.2d 871 (1991). This court reviews questions of law de novo, benefiting from the analysis of the circuit court. See State v. Szulczewski, 216 Wis.2d 494, 574 N.W.2d 660, 662 (1998).

¶8 This court has, on several occasions, expounded on Wisconsin's common law of negligence. "In order to maintain a cause of action for negligence in this state, there must exist: (1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Rockweit v. Senecal, 197 Wis.2d 409, 418, 541 N.W.2d 742 (1995) (citations omitted). Even if these elements are met, public policy considerations may nevertheless preclude imposing liability on the defendant. See Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 737, 275 N.W.2d 660 (1979).

¶9 We first address whether Wal-Mart has a duty of care to Miller. In Wisconsin, everyone has a duty of care to the whole world. See Morgan, 87 Wis.2d at 732, 275 N.W.2d 660.

[T]he proper analysis of duty in Wisconsin is as follows: "The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act...."

Rockweit, 197 Wis.2d at 419-20, 541 N.W.2d 742 (quoting A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 483-84, 214 N.W.2d 764 (1974)). " 'A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone.' " Rolph v. EBI Cos., 159 Wis.2d 518, 532, 464 N.W.2d 667 (1991). The duty is to refrain from such act or omission. See A.E. Investment, 62 Wis.2d at 485, 214 N.W.2d 764.

¶10 Miller alleges that Wal-Mart failed to adequately and properly train its loss prevention employee, Maness. As Miller points out, loss prevention employees are entrusted with special duties and given authority to stop individuals suspected of shoplifting. Because it is foreseeable that if not properly trained, a loss prevention employee could cause harm to someone, we believe that Wal-Mart has a duty of care toward its patrons including Miller.

¶11 The second question is whether Wal-Mart breached its duty of care toward Miller.

A person fails to exercise ordinary care, when, without intending to do any harm, he or she does something or fails to do something under circumstances in which a reasonable person would foresee that by his or her action or failure to act, he or she will subject a person or property to an unreasonable risk or injury or damage.

Wis JI-Civil 1005; see also Shannon v. Shannon, 150 Wis.2d 434, 443-44, 442 N.W.2d 25 (1989).

¶12 As discussed above, it is foreseeable that failing to properly train or supervise any employee, but especially a loss prevention associate, would subject shoppers to unreasonable risk, injury or damage. If Wal-Mart fails to properly hire, train or supervise its employees, it breaches its duty to shoppers at its store. The jury determined that Wal-Mart negligently hired, trained or supervised its employees. Therefore, Wal-Mart breached its duty to its patrons.

¶13 The third consideration is whether there is a causal connection between the conduct and the injury. "Legal cause in negligence actions is made up of two components, cause-in-fact and 'proximate cause,' or policy considerations." Morgan, 87 Wis.2d at 735, 275 N.W.2d 660. Regarding cause-in-fact, the test is whether the negligence was a substantial factor in producing the injury. See id. "[T]here can be more than one substantial factor contributing to the same result and thus more than one cause-in-fact." Id. If reasonable people could differ on whether the defendant's negligence was a cause-in-fact of the plaintiff's injuries, the question is one for the jury. See id. The determination of cause-in-fact is a question for the court only if reasonable people could not disagree. See id. at 735-36, 275 N.W.2d 660.

¶14 With respect to a cause of action for negligent hiring, training or supervision, we determine that the causal question is whether the failure of the employer to exercise due care was a cause-in-fact of the wrongful act of the employee that in turn caused the plaintiff's injury. In other words, there must be a nexus between the negligent hiring, training, or supervision and the act of the employee. This requires two questions with respect to causation. The first is whether the wrongful act of the employee was a cause-in-fact of the plaintiff's injury. The second question is whether the negligence of the employer was a cause-in-fact of the wrongful act of the...

To continue reading

Request your trial
111 cases
  • Menges v. Depuy Motech, Inc.
    • United States
    • U.S. District Court — Northern District of Indiana
    • 11 Junio 1999
    ...Glassey v. Continental Insurance Co., 176 Wis.2d 587, 500 N.W.2d 295, 300 (1993) (strict liability); Miller v. Wal-Mart Stores, Inc., 219 Wis.2d 250, 580 N.W.2d 233, 238 (1998) (negligence), reconsideration denied. In order to survive a motion for summary judgment, Menges must carry the bur......
  • Sawyer v. Midelfort
    • United States
    • Wisconsin Supreme Court
    • 29 Junio 1999
    ...caused by a patient's false memories of abuse may be maintained in Wisconsin is a question of law. See Miller v. Wal-Mart Stores, Inc., 219 Wis.2d 250, 259, 580 N.W.2d 233 (1998). This court reviews questions of law de novo. Id. ¶27 The defendants make two arguments opposing our recognition......
  • Hicks v. Nunnery
    • United States
    • Wisconsin Court of Appeals
    • 28 Marzo 2002
    ...examples of policy factors Wisconsin has identified have no relationship to "cause" or proximateness. In Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 264-65, 580 N.W.2d 233 (1998), the court examined these (1) The injury is too remote from the negligence; or (2) the injury is too wholl......
  • Behrendt v. Gulf Underwriters Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • 9 Julio 2009
    ...from the injury." Gritzner v. Michael R., 2000 WI 68, ¶ 19, 235 Wis.2d 781, 611 N.W.2d 906 (citing Miller v. Wal-Mart Stores, Inc., 219 Wis.2d 250, 260, 580 N.W.2d 233 (1998)); Rockweit v. Senecal, 197 Wis.2d 409, 419, 541 N.W.2d 742 (1995)5 (citing Coffey v. City of Milwaukee, 74 Wis.2d 52......
  • Request a trial to view additional results
1 firm's commentaries
  • Skeletons In The Closet? Minimizing The Risks Of Background Checking
    • United States
    • Mondaq United States
    • 10 Octubre 2012
    ...under fire, ZDNet, April 29, 1999, www.zdnet.com/news/background-of-lotus-chief-under-fire/95847. 4 Miller v. Wal-Mart Stores Inc., 219 Wis. 2d 250, 262, 580 N.W.2d 233 5 Id. 6 Wisconsin Dep't of Health Servs., Caregiver Program (including Background Checks), www.dhs.wisconsin.gov/caregiver......
2 books & journal articles
  • THE LIMITS OF CHURCH AUTONOMY.
    • United States
    • Notre Dame Law Review Vol. 98 No. 3, March 2023
    • 1 Marzo 2023
    ...of Chi., 82 N.E.3d 1229, 1233 (111. App. Ct. 2017); Carson v. Canning, 62 N.E. 964, 964 (Mass. 1902); Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233, 238 (Wis. 1998); see also Cindy M. Haerle, Employer Liability for the Criminal Arts of Employees Under Negligent Hiring Theory: Ponticas v. ......
  • Social Host Immunity: A New Paradigm to Foster Responsibility
    • United States
    • Capital University Law Review No. 38-1, September 2009
    • 1 Septiembre 2009
    ...on the part of the drink-dispenser, and could also find that the negligence is a legal cause of 71 See Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233, 239–40 (Wis. 1998) (stating that on occasion, public-policy considerations can serve to limit the range of a defendant’s liability). 72 580......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT