Staples v. Cbl Assocs., 97-00033

Decision Date20 March 2000
Docket Number97-00033
Citation15 S.W.3d 83
CourtTennessee Supreme Court
PartiesANITA GAYLE STAPLES and GARLAND B. STAPLES, Plaintiffs/Appellants v. CBL & ASSOCIATES, INC., PROFFITTS FOR WOMEN, INC., and ERMC LP, d/b/a RUSSELL SECURITY SERVICES, Defendants/AppelleesIN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE Filed:

FOR PUBLICATION

FOR PLAINTIFFS/ APPELLANTS: Jere Franklin Ownby, III, Law Offices of Peter G. Angelos, P.C, Knoxville, TN

FOR DEFENDANTS/ APPELLEES : Joe E. Manuel, Manuel & James, Chattanooga, TN, N. Mark Kinsman, Baker, Kinsman & Hollis Chattanooga, TN, Lex A. Coleman, Richard R. Ruth & Associates, Chattanooga, TN

HAMILTON COUNTY CIRCUIT, Hon. Samuel H. Payne

OPINION

REVERSED AND REMANDED. DROWOTA, J.

In this case we decide the liability of a shopping mall, its security company, and one of its anchor stores to a customer who was abducted on mall premises. In deciding this issue we apply the reasoning and law set forth in McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), which is controlling in cases dealing with the duty of care owed by premises owners or occupiers to protect customers from the criminal acts of third parties committed on their premises. Here, the plaintiff was abducted from inside a mall and forced to drive with the perpetrator until she finally escaped. She now seeks recovery against the mall, its security company, and one of its anchor stores based on negligence for failure to implement and maintain adequate security and to otherwise protect her from being abducted. The defendants maintain that they owed no duty to this plaintiff, but that even if they did, the plaintiff cannot recover because she was at least fifty percent at fault for causing her injuries. The trial court granted summary judgment in favor of the defendants and the Court of Appeals affirmed. We have determined that the harm suffered by the plaintiff was foreseeable and that the defendants owed her a duty of care. Furthermore, we conclude that reasonable minds could differ on the reasonableness of the plaintiff's actions in confronting a known risk and the extent of her fault, and therefore remand the cause so that the issue of comparative fault can be decided by a jury. Accordingly, the decision of the Court of Appeals is reversed and the cause is remanded to the trial court for a trial consistent with this opinion.

FACTUAL BACKGROUND

The plaintiff,1 Anita Gayle Staples, is a resident of Chattanooga and was 43 years old when the incident giving rise to this suit occurred. At around 4:30 p.m. on May 18, 1993, Ms. Staples took her truck to the Sears automotive center at Hamilton Place Mall to have the wheels aligned. After learning that her car would not be ready until 6:00, Ms. Staples decided to shop in the mall until the work was completed. She began browsing in the Sears lingerie department when she noticed the presence of an "exceptionally groomed" man standing nearby. Assuming the man was accompanied by a woman shopping in the department, Ms. Staples did not find anything out of the ordinary about his presence.

Ms. Staples left Sears to go to Morrison's Cafeteria, still within the mall, to eat. On her way, she passed an AT&T store and noticed the same man she had seen at Sears. He appeared to be looking at telephones, although she thought she saw him looking at her. Still unconcerned, Ms. Staples proceeded to Morrison's Cafeteria. In the restaurant, she observed the man a third time, when he leaned over a partition and peered at her while she was eating. Rattled by the encounter, she immediately left Morrison's.

Ms. Staples next went to Proffitts department store. After browsing in the dress department for about ten minutes, she became aware of the presence of the same man, who was standing about six feet from her. Looking at Ms. Staples, the man pulled a dress from a rack and asked, "Isn't this pretty?" At this point Ms. Staples was convinced that he was following her. Attempting to conceal her fear, she ignored the man and continued to shop, during which time she scanned the store for an employee. As she walked through the juniors department, the man appeared again and fanned money in his hands as he looked at Ms. Staples, causing her to feel as though he was propositioning her.

Following this encounter, Ms. Staples went directly to the Estee Lauder counter in Proffitts, where she knew the two employees working, Sheila Napier and Barbara Franca. She was noticeably frightened and shaking. When Ms. Franca asked what was wrong, Ms. Staples told the two women that a man was following her. They asked what the man looked like, and Ms. Staples described him. After a brief conversation about why the man might be following her, Ms. Napier looked at Ms. Franca and said "maybe we should call security." The two employees later testified that they offered to call security more than one time, but that Ms. Staples declined their offers. Ms. Staples disputes this, however, and maintains that neither employee asked her whether she wanted them to call security.

In any event, Ms. Franca then got off work and Ms. Staples continued to chat with Ms. Napier, who wanted to discuss a problem that she was having with her boyfriend. Ms. Staples said that she would go pick up her truck from Sears and then return to Proffitts to talk with Ms. Napier and to look for a picture frame. As she was leaving, Ms. Staples told Ms. Napier: "I'm not going to look back when I leave, please don't let this guy follow me." Ms. Napier responded: "I will watch. I won't let him follow you." According to Ms. Staples, Ms. Napier later told her that she "got busy with a customer and ... forgot to watch."

Ms. Staples then left Proffitts without incident and went to J.C. Penney's to purchase a dress before walking toward Sears. On the way, she stopped at Lechter's, a household goods store, to purchase an apple corer. As she left Lechter's, Ms. Staples entered a common area in the mall and saw the man who had been following her sitting on a bench. Frightened, she tried to ignore the man and began walking briskly toward Sears. Ms. Staples testified that she felt some comfort knowing that she was going to get her truck and was going to "get out of there" and because she had reported the man to the employees at Proffitts, whom she assumed had "taken measures."

After retrieving her truck at Sears, Ms. Staples drove to the front of the mall and parked near the front door of Proffitts. She intended to shop not only at Proffitts, but elsewhere in the mall. Ms. Staples testified that she was comfortable returning to the department store because she didn't think the man would be there and because the Proffitts employees "knew who he was" and "should have been on the lookout for him."

Immediately inside the store entrance, Ms. Staples began browsing at some dress racks. Within minutes, the man who had been following her "suddenly appeared" in front of her. The man quickly moved behind Ms. Staples and pressed an object contained in a sack into her back. He then demanded that she "keep walking" and "not look back." He forced her through the parking lot and into her truck, where he revealed a gun and told her to drive. From the passenger seat, the man continued to hold a gun on Ms. Staples and told her to "hit the interstate." She got on I-75 heading south and drove for several miles until he instructed her to exit and pull into a service station. During the ride he did not speak to Ms. Staples. Without exiting the car, he attempted to make a call from a pay phone at the station, but apparently could not get through. He then had Ms. Staples park at the edge of a parking lot at a nearby shopping mall, where they sat in silence for about forty-five minutes. He finally asked her to remove her slip, which he folded and placed in his lap.

The man instructed Ms. Staples to continue driving around the Dalton, Georgia area until he ordered her to pull into a Racetrack gas station, where he again placed a phone call from the truck. He next told her to fill the truck with gas and then to go into the store and pay, warning that if she did not return, he would kill her and "everybody in there." Inside the station, Ms. Staples informed the employees that she had been abducted. One of the employees went outside to find the man, but he had run away on foot. The Dalton, Georgia Police were called but could not locate the perpetrator.

Ms. Staples filed suit in the Circuit Court for Hamilton County against Proffitts, Inc. ("Proffitts"), CBL & Associates ("CBL"), the owner of the Hamilton Place Mall, and ERMC L.P. ("ERMC"), the company that provided security for the mall. In the complaint she alleged that the defendants were liable for her abduction because they had negligently failed to protect her and to implement and maintain an adequate security system in the mall.

On June 30, 1994, CBL filed a partial motion to dismiss with respect to certain named defendants. The trial court granted the motion on October 6, 1994. The remaining CBL defendants then filed for summary judgment, contending that the mall had no notice of an alleged stalker because neither Ms. Staples nor any Proffitts employee contacted mall officials or mall security about Ms. Staples' concerns. On March 6, 1997 the trial court granted summary judgment in favor of the CBL defendants for each claim asserted.

Proffitts and ERMC each filed a motion for summary judgment, on February 24, 1995 and March 7, 1995, respectively, asserting that they did not owe the plaintiff a duty because they could not have reasonably foreseen that Ms. Staples would act unreasonably by returning to the mall and encountering a known danger. On June 7, 1995, the trial court granted Proffitts' motion on the ground that Proffitts "had no knowledge of an imminent probability of the abduction of the plaintiff." However the court denied ERMC's summary judgment motion because it found that Ms. Staples had raised a question as to whether...

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