Posecai v. Wal-Mart Stores, Inc., 99-C-1222.

• Court: Supreme Court of Louisiana
• Citation: 752 So.2d 762
• Docket Number: No. 99-C-1222.,99-C-1222.
• Parties: Shirley POSECAI v. WAL-MART STORES, INC. d/b/a Sam's Wholesale Club and Joe Doe.
• Decision Date: 30 November 1999

752 So.2d 762

Shirley POSECAI
v.
WAL-MART STORES, INC. d/b/a Sam's Wholesale Club and Joe Doe

No. 99-C-1222.

Supreme Court of Louisiana.

November 30, 1999.

752 So.2d 764

Frederick R. Campbell, Geoffrey Jacob Orr, Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Metairie, Counsel for Applicant

Joseph Paul Demarest, Angela Ceclia Imbornone, Favret, Demarest, Russo & Lutkewitte, New Orleans, Counsel for Respondent.

MARCUS, Justice¹

Shirley Posecai brought suit against Sam's Wholesale Club ("Sam's") in Kenner after she was robbed at gunpoint in the store's parking lot. On July 20, 1995, Mrs. Posecai went to Sam's to make an exchange and to do some shopping. She exited the store and returned to her parked car at approximately 7:20 p.m. It was not dark at the time. As Mrs. Posecai was placing her purchases in the trunk, a man who was hiding under her car grabbed her ankle and pointed a gun at her. The unknown assailant instructed her to hand over her jewelry and her wallet. While begging the robber to spare her life, she gave him her purse and all her jewelry. Mrs. Posecai was wearing her most valuable jewelry at the time of the robbery because she had attended a downtown luncheon earlier in the day. She lost a two and a half carat diamond ring given to her by her husband for their twenty-fifth wedding anniversary, a diamond and ruby bracelet and a diamond and gold watch, all valued at close to $19,000.

When the robber released Mrs. Posecai, she ran back to the store for help. The Kenner Police Department was called and two officers came out to investigate the incident. The perpetrator was never apprehended and Mrs. Posecai never recovered her jewelry despite searching several pawn shops.

At the time of this armed robbery, a security guard was stationed inside the store to protect the cash office from 5:00 p.m. until the store closed at 8:00 p.m. He could not see outside and Sam's did not have security guards patrolling the parking lot. At trial, the security guard on duty, Kenner Police Officer Emile Sanchez, testified that he had worked security detail at Sam's since 1986 and was not aware of any similar criminal incidents occurring in Sam's parking lot during the nine years prior to the robbery of Mrs. Posecai. He further testified that he did not consider Sam's parking lot to be a high crime area, but admitted that he had not conducted a study on the issue.

The plaintiff presented the testimony of two other Kenner police officers. Officer Russell Moran testified that he had patrolled the area around Sam's from 1993 to 1995. He stated that the subdivision behind Sam's, Lincoln Manor, is generally known as a high crime area, but that the Kenner Police were rarely called out to Sam's. Officer George Ansardi, the investigating officer, similarly testified that Lincoln Manor is a high crime area but explained that Sam's is not considered a high crime location. He further stated that to his knowledge none of the other businesses in the area employed security guards at the time of this robbery.

An expert on crime risk assessment and premises security, David Kent, was qualified and testified on behalf of the plaintiff. It was his opinion that the robbery of Mrs. Posecai could have been prevented by an exterior security presence. He presented crime data from the Kenner Police Department

752 So.2d 765

indicating that between 1989 and June of 1995 there were three robberies or "predatory offenses"² on Sam's premises, and provided details from the police reports on each of these crimes.³ The first offense occurred at 12:45 a.m. on March 20, 1989, when a delivery man sleeping in his truck parked in back of the store was robbed. In May of 1992, a person was mugged in the store's parking lot. Finally, on February 7, 1994, an employee of the store was the victim of a purse snatching, but she indicated to the police that the crime was related to a domestic dispute

In order to broaden the geographic scope of his crime data analysis, Mr. Kent looked at the crime statistics at thirteen businesses on the same block as Sam's, all of which were either fast food restaurants, convenience stores or gas stations. He found a total of eighty-three predatory offenses in the six and a half years before Mrs. Posecai was robbed. Mr. Kent concluded that the area around Sam's was "heavily crime impacted," although he did not compare the crime statistics he found around Sam's to any other area in Kenner or the New Orleans metro area.

Mrs. Posecai contends that Sam's was negligent in failing to provide adequate security in the parking lot considering the high level of crime in the surrounding area. Seeking to recover for mental anguish as well as for her property loss, she alleged that after this incident she had trouble sleeping and was afraid to go out by herself at night. After a bench trial, the trial judge held that Sam's owed a duty to provide security in the parking lot because the robbery of the plaintiff was foreseeable and could have been prevented by the use of security. A judgment was rendered in favor of Mrs. Posecai, awarding $18,968 for her lost jewelry and $10,000 in general damages for her mental anguish. The trial judge further ruled that Sam's was 75% at fault and the unknown perpetrator was only 25% at fault. Sam's appealed. The court of appeal found that the trial judge erred in apportioning fault between Sam's and the criminal who intentionally robbed Mrs. Posecai. It amended the judgment to find Sam's solely at fault for the damages suffered by the plaintiff and affirmed the judgment as amended.⁴ Upon Sam's application, we granted certiorari to review the correctness of that decision.⁵

The sole issue presented for our review is whether Sam's owed a duty to protect Mrs. Posecai from the criminal acts of third parties under the facts and circumstances of this case.

This court has adopted a duty-risk analysis to determine whether liability exists under the particular facts presented. Under this analysis the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Syrie v. Schilhab, 96-1027, p. 4-5 (La.5/20/97), 693 So.2d 1173, 1176-77; Berry v. State, 93-2748, p. 4 (La.5/23/94), 637 So.2d 412, 414. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. LeJeune v. Union Pacific R.R., 97-1843, p. 6 (La.4/14/98), 712 So.2d 491, 494.

752 So.2d 766

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Sav. & Loan, 98-1601, 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204; Mundy v. Dep't of Health & Human Resources, 620 So.2d 811, 813 (La.1993); Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 292 (La.1993). In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La.1991). The court may consider various moral, social, and economic factors, including the fairness of imposing liability; the economic impact on the defendant and on similarly situated parties; the need for an incentive to prevent future harm; the nature of defendant's activity; the potential for an unmanageable flow of litigation; the historical development of precedent; and the direction in which society and its institutions are evolving. See Meany, 639 So.2d at 233; Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151, 1161 (La.1988); Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983)

This court has never squarely decided whether business owners owe a duty to protect their patrons from crimes perpetrated by third parties.⁶ It is therefore helpful to look to the way in which other jurisdictions have resolved this question. Most state supreme courts that have considered the issue agree that business owners do have a duty to take reasonable precautions to protect invitees from foreseeable criminal attacks.⁷

We now join other states in adopting the rule that although business owners are not the insurers of their patrons' safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. We emphasize, however, that there is generally no duty to protect others from the criminal activities of third persons. See Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La. 1984). This duty only arises under limited circumstances, when the criminal act in question was reasonably foreseeable to the owner of the business. Determining when a crime is foreseeable is therefore a critical inquiry.

Other jurisdictions have resolved the foreseeability issue in a variety of ways, but four basic approaches have emerged. See Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971-73 (Ind.1999); Krier v. Safeway Stores 46, Inc., 943 P.2d 405, 413-15 (Wyo.1997). The first approach, although somewhat outdated, is known as the specific harm rule. See Delta Tau

752 So.2d 767

Delta, 712 N.E.2d at 971; McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 895-96 (Tenn.1996). According to this rule, a landowner does not owe a duty to protect patrons from the violent acts of third parties unless he is aware of specific, imminent harm about to befall them. See Delta Tau Delta, 712 N.E.2d at 971; McClung, 937 S.W.2d at 895-96. Courts have generally agreed that this rule is too restrictive in limiting the duty of protection that business owners owe their invitees. See Delta Tau Delta, 712 N.E.2d at 971; McClung, 937 S.W.2d at 899.

More recently, some courts have adopted a prior similar incidents test. See ...