Roddey v. Wal-Mart Stores East, LP

• Decision Date: 29 August 2012
• Docket Number: Opinion No. 5028,Appellate Case No. 2010-163426
• Parties: Travis A. Roddey, as the personal representative of the Estate of Alice Monique Beckham Hancock, deceased, Appellant, v. Wal-Mart Stores East, LP, U.S. Security Associates, Inc., and Derrick L. Jones, Respondents.
• Court: South Carolina Court of Appeals

Travis A. Roddey, as the personal representative of the Estate

of Alice Monique Beckham Hancock, deceased, Appellant,

v.Wal-Mart Stores East, LP, U.S. Security Associates, Inc.,and Derrick L. Jones, Respondents.

Appellate Case No. 2010-163426

Opinion No. 5028

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard April 10, 2012

Filed August 29, 2012

Appeal From Lancaster County

Brooks P. Goldsmith, Circuit Court Judge

AFFIRMED

John S. Nichols and Blake A. Hewitt, Bluestein, Nichols, Thompson & Delgado, LLC of Columbia; S. Randall Hood and William A. McKinnon, McGowan, Hood & Felder, LLC, of Rock Hill; and Brent Paul Stewart, Stewart Law Offices, LLC, of Rock Hill, for Appellant.

W. Howard Boyd, Jr. and Stephanie G. Flynn, Gallivan White & Boyd, PA of Greenville, for Respondents.

FEW, C.J.:

Alice Hancock died in an automobile crash as she drove away from the Wal-Mart in Lancaster. She was being chased by Derrick Jones, an employeeof U.S. Security Associates, Inc., which provided security in the Wal-Mart parking lot pursuant to a contract with Wal-Mart. Wal-Mart management had advised Jones that a passenger in Hancock's vehicle attempted to steal merchandise from the store, and they instructed him to get the vehicle's license tag number. At trial, the court directed a verdict for Wal-Mart, and the jury returned a defense verdict on the claims against Jones and U.S. Security. Hancock's estate appeals the decision to direct a verdict in favor of Wal-Mart. We affirm.

I. Facts and Procedural History

On the night of June 20, 2006, Hancock drove to Wal-Mart with her sister, Donna Beckham. Hancock entered the store with Beckham but later returned to her vehicle in the parking lot. While Hancock waited in the car, Beckham attempted to shoplift several items from the store by placing them in plastic bags. As Beckham testified at trial, "I then went and got a bag and went and put some pants into the bag[.] I shouldn't have done it."¹

Hope Rollings, one of the store's customer service managers, saw Beckham do this. Rollings alerted fellow manager Shaun Cox and several other employees that Beckham was attempting to steal merchandise. Rollings then walked outside to speak with Jones, who was on duty in his company truck. As Rollings and Jones spoke, Cox used a handheld radio to tell them that Beckham was headed towards one of the exits. Rollings went back inside, and Jones drove to the exit. Jones testified he asked over the radio what he should do, as he did not have the authorityto detain Beckham. He was told to "try to delay her. Try to talk to her until we can get out there."

As Beckham approached the exit with the bags of merchandise, a Wal-Mart greeter asked to see her receipt. Beckham told the greeter Hancock had the receipt in the car. She testified, "I told her that my sister had it but that was a lie." Beckham then put down the bags and walked out of the store. Jones saw Beckham and spoke to her briefly. Beckham testified Jones screamed at her. Beckham began running towards Hancock's car. Jones followed her in his truck but did not physically detain her. Hancock saw Beckham, pulled out of her parking space, and drove down a lane of the parking lot towards Beckham. Jones drove into the lane, blocking Hancock's vehicle. While Hancock's car was still moving, Beckham jumped into the back seat.² As Beckham later testified, she told Hancock to "get them the hell out of here." Hancock put her car in reverse, backed up at a high speed, struck a median in the parking lot, turned around, and drove towards the exit of the parking lot. Jones followed behind her.

As these events unfolded, Cox walked to the main entrance of the store and radioed to Jones, "Get her tag number." According to Jones, he received instructions over the radio from Cox and Rollings to get the license tag information from Hancock's vehicle. Jones testified, "And I'm on the walkie-talkie, telling them, I can't see this license plate tag number, and they're about to leave the parking lot." A Wal-Mart employee replied, "Man, well, you got to do what you got to do. You need to get that license plate number." These instructions by Wal-Mart personnel violated Wal-Mart's policy for investigating and detaining suspected shoplifters, which provided:

NEVER pursue a fleeing Suspect more than approximately 10 feet beyond the point you are located when the Suspect begins to run to avoid detention. Ten feet is about three long steps. This limitation applies both inside and outside the facility.

NEVER pursue a Suspect who is in a moving vehicle.

NEVER pursue a Suspect off the Facility's property.

NEVER use a moving vehicle to pursue a Suspect.

TERMINATE the pursuit of a Suspect, if the Suspect begins to enter a vehicle.

LET THE SUSPECT GO, rather than continue a pursuit that is likely to injure or cause harm to someone.

As Hancock left the parking lot and drove onto a highway, she ran a stop sign and a stop light, nearly getting into an accident. In violation of his training and U.S. Security policy, Jones left the parking lot and pursued Hancock and Beckham onto the highway. According to Jones, Hancock drove up an onramp, "almost slamm[ing] into the back of another lady's car" and missing it by swerving to the left. Jones testified he lost Hancock and Beckham at that point, and he did not find them again until he saw her vehicle's hazard lights flashing off of the side of the road. However, Beckham testified Jones stayed close behind them. Crouching in the back seat, she periodically looked up over the seat and saw Jones driving "on [their] bumper" and flashing the high-beams on his truck. After about two miles, Hancock told Beckham "he's still on our ass," and then Beckham heard and felt a bump. Hancock's car left the road and crashed. Hancock died at the scene.

Travis Roddey, the personal representative of Hancock's estate, sued Wal-Mart, U.S. Security, and Jones for negligence. At trial, the court granted Wal-Mart's motion for a directed verdict. The jury found Hancock was 65% at fault and U.S. Security and Jones were 35% at fault. Roddey filed a motion under Rule 59(e), SCRCP, seeking a new trial as to all defendants on the basis that the court erred in directing a verdict for Wal-Mart. The court denied the motion.

II. How the Panel Votes to Affirm

Wal-Mart asserted three grounds for its directed verdict motion: (1) Roddey presented no evidence Wal-Mart breached its duty of care; (2) Wal-Mart's actions were not the proximate cause of Hancock's death as a matter of law because Jones' and Hancock's actions were not foreseeable; and (3) Hancock's fault in causing her own death was more than 50% as a matter of law. The trial court granted the motion on the first two grounds, stating "I . . . find that there is insufficient evidence that Wal-Mart was negligent, or even if [it was] there is a lack ofproximate cause [in] that the events were not foreseeable." As to the third ground, the court stated it was "[un]able to find as a matter of law that Hancock was more than 50 percent [at fault]."

Judge Huff and I believe the trial court erred in finding there was insufficient evidence of Wal-Mart's negligence and in finding Jones' and Hancock's actions were not foreseeable. However, I vote to affirm because I believe Hancock was more than 50% at fault. As Judge Short explains in his concurring opinion, he votes to affirm because he believes the trial court correctly found no proximate cause as a matter of law. As Judge Huff explains in his dissent, he would reverse and remand for a new trial as to Wal-Mart.

III. Evidence of Wal-Mart's Negligence

Cox and Rollings' instructions that Jones get the tag number of Hancock's vehicle, including the command "do what you got to do," violated the Wal-Mart policy designed to prevent injuries and deaths caused by fleeing suspects. A defendant's violation of its own safety policies is some evidence of negligence. See Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 140, 638 S.E.2d 650, 659 (2006) (stating a defendant's standard of care in a negligence action "may be established and defined by . . . a defendant's own policies and guidelines"); Peterson v. Nat'l R.R. Passenger Corp., 365 S.C. 391, 397, 618 S.E.2d 903, 906 (2005) (holding "evidence of [a defendant's] deviation from their internal maintenance policies is admissible to show the element of the breach"); Tidwell v. Columbia Ry., Gas & Elec. Co., 109 S.C. 34, 35, 95 S.E. 109, 109 (1918) (stating "violation [of a defendant's rules] was evidence tending to show negligence"); Caldwell v. K-Mart Corp., 306 S.C. 27, 31, 410 S.E.2d 21, 24 (Ct. App. 1991) (stating a jury may consider violations of internal policies or self-imposed rules as evidence of negligence). Therefore, the trial court should not have directed a verdict on the basis that there was insufficient evidence of negligence.

IV. Foreseeability of Hancock's Actions

The purpose of Wal-Mart's policy is to prevent injury or death resulting from negligent or reckless driving in pursuit of a suspect. The policy states: "LET THE SUSPECT GO, rather than continue a pursuit that is likely to injure or cause harm to someone. . . . Remember to put people first. Protecting the physical well-being of Suspects . . . is your first priority." Similar instructions and reminders to "put people first" appear throughout the policy. The danger sought to be prevented bythis policy arises from the anticipated negligent or reckless driving of the pursuer and the pursued. Therefore, the danger that a fleeing suspect or the security officer chasing her might drive negligently or recklessly and injure the suspect or someone else is not simply foreseeable—it is the very reason Wal-Mart adopted the policy in the first place. I disagree that Jones' and Hancock's actions were not foreseeable to Wal-Mart.

V. Hancock's Fault

There are two reasons this court should hold that Hancock was more than 50% at fault and on that basis affirm the directed verdict in favor of...