Steffensen v. Smith's Management Corp.

• Decision Date: 22 October 1993
• Docket Number: No. 910560,910560
• Citation: 862 P.2d 1342
• Parties: Pearl H. STEFFENSEN, Plaintiff, Petitioner, and Cross-Respondent, v. SMITH'S MANAGEMENT CORPORATION, Defendant, Respondent, and Cross-Petitioner.
• Court: Utah Supreme Court

Page 1342

862 P.2d 1342

Pearl H. STEFFENSEN, Plaintiff, Petitioner, and Cross-Respondent, v. SMITH'S MANAGEMENT CORPORATION, Defendant, Respondent, and Cross-Petitioner.

No. 910560.

Supreme Court of Utah.

Oct. 22, 1993.

Rehearing Denied Nov. 12, 1993.

Curtis C. Nesset, Richard B. McKeown, Bradley H. Parker, Salt Lake City, for plaintiff.

Chris A. Tolboe, Salt Lake City, for defendant.

HOWE, Associate Chief Justice:

We granted cross-petitions for certiorari to review the court of appeals' affirmance of a trial court judgment based on a jury verdict in favor of defendant Smith's Management Corporation. Steffensen v. Smith's Management Corp., 820 P.2d 482 (Utah Ct.App.1991).

I. FACTS

Bradley Burnett entered a Smith's grocery store intending to shoplift. Gary Canham, the store's front-end manager, was standing in the middle of the store and observed Burnett coming from the produce department carrying beer and cigarettes. As Burnett walked toward the front of the store past Canham, they made eye contact with each other. Canham suspected that Burnett might attempt to leave without paying for the items he was carrying. Canham informed Paul Rompus, Smith's Drug King Manager, of his suspicion, and the two watched Burnett from the office area near the front of the store. Burnett believed the two Smith's managers were watching him so he stood in line at a check-out stand for a few minutes. The managers then assumed that Burnett intended to pay for the items, and their suspicions were momentarily abated. As soon as Burnett felt that he was no longer being watched, he left the check-out line and walked quickly toward the exit with the merchandise.

The two managers confronted Burnett and asked him to accompany them to the office. He agreed, but on the way, he suddenly "broke" toward the front exit, dropping the merchandise as he ran. Another Smith's employee tried to block Burnett, but as he did so, Burnett crashed into plaintiff Pearl H. Steffensen, who was standing near the front of the store writing a check. She fell, striking her head on the tile floor. She sustained severe injuries that resulted in stroke-like paralysis over the entire left side of her body.

Steffensen commenced this action against Smith's, alleging that it was negligent in dealing with the shoplifter and that this negligence caused her injuries. At the conclusion of the presentation of evidence, Smith's moved for a partial directed verdict on the ground that Smith's failure to deter Burnett from shoplifting before he reached the check-out stand could not, as a matter of law, be a proximate cause of Steffensen's injuries. The court granted this motion and incorporated this ruling into jury instruction 36. The court allowed the jury to consider only Smith's conduct that occurred after the stop and detention of Burnett. At the end of the trial, the judge submitted written interrogatories to the jury. The jury found that Smith's acted negligently but that its negligence was not a proximate cause of Steffensen's injuries. Steffensen appealed to the court of appeals, which concluded that the trial court committed error by granting the partial directed verdict but that the error was harmless. Steffensen, 820 P.2d at 489-90. The court similarly held that instruction 32, concerning foreseeability, was erroneous but harmless. Id. Finally, the court held that the exclusion of expert testimony on employee training and deterrence was also harmless error and that the exclusion of testimony as to the apportionment of fault was correct. Id. at 491.

II. ANALYSIS

A. Partial Directed Verdict

Steffensen contends that the court of appeals erroneously applied a harmless error analysis after determining that the trial court should not have granted Smith's motion for a partial directed verdict. On the other hand, Smith's contends that the court of appeals erred in determining that the trial court erred in directing a partial directed verdict.

At trial, Steffensen proceeded on two theories of negligence. First, she contended that Smith's failed to adequately train its employees to deter Burnett from shoplifting prior to stopping him. Specifically, Smith's employees did not use deterrence techniques detailed in Smith's own policy, including making eye contact with and greeting suspected shoplifters and periodically calling for security over the intercom. Second, Steffensen asserted that Smith's actions following the stop and detention of Burnett were negligent. She argued that Smith's endangered the safety of its customers by chasing and attempting to stop Burnett after he fled and that these actions ultimately caused her injuries.

At the close of the evidence, Smith's moved the trial court for a partial directed verdict. The motion was grounded on the argument that even if its employees had been inadequately trained about the need for deterrence and failed to utilize deterrence techniques, such failure could not have been the proximate cause of Steffensen's injuries. The trial court granted Smith's motion and instructed the jury:

You have heard testimony regarding events that occurred prior to the time of the stop of the shoplifter, Mr. Burnett. You are instructed that none of the actions of the Smith's employees prior to the stop and detention proximately caused plaintiff's injuries. Therefore, you must not take this testimony into consideration when deliberating and making your decision.

Both the trial court and the court of appeals evaluated the conduct of Smith's employees prior to the stop and detention of Burnett as to whether their conduct could be a proximate cause of Steffensen's injuries. We need not and do not enter into a proximate cause analysis because we conclude, as a matter of law, that Smith's had no legal duty to deter Burnett from shoplifting prior to the time he reached the check-out stand.

In Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991), we stated that a possessor of land must exercise due care and prudence for the safety of business invitees. We recognized that a business owner also has a duty to protect its customers from criminal acts by third parties. Id. (citing Restatement (Second) of Torts § 344, cmt. f (1965)). However, "the duty does not arise until the business owner knows, or should know, that criminal acts are likely to occur." Id. While we have not heretofore had occasion to apply these and related rules in a case involving shoplifting, other courts have done so with varying results. See Annotation, Liability of Storekeeper for Injury to Customer Arising Out of Pursuit of Shoplifter, 14 A.L.R.4th 950 (1982); Martin v. Piggly Wiggly Corp., 469 So.2d 1057 (La.Ct.App.1985); Jones v. Lyon Stores, 82 N.C.App. 438, 346 S.E.2d 303 (1986); Passovoy v. Nordstrom, Inc., 52 Wash.App. 166, 758 P.2d 524 (1988). Most of these cases involve the issue of whether a storekeeper should have reasonably foreseen that a detained shoplifter would suddenly bolt and flee, injuring a customer in his flight from the store. See 62A Am.Jur.2d Premises Liability § 517 (1990). We have not found a case where, as here, an injured customer sued a storekeeper because the storekeeper failed to deter a suspected shoplifter, openly carrying merchandise, before he reached the check-out stand.

When Canham first observed Burnett in the store, the latter was carrying beer and cigarettes which he had apparently taken from the store's shelves. Burnett did not at any time try to secrete any item. Canham suspected that he was a shoplifter solely because of the area of the store from which he was coming. The record provides no explanation why that fact would raise any suspicion except that prior shoplifters had come from that area. Without more of a basis for suspecting Burnett to be a shoplifter, it would be wholly unreasonable to charge Smith's with the duty to approach him before he reached the check-out stand and deter him from leaving the store without paying for the items. Until a person has indicated by some objective evidence that he or she does not intend to pay for items in his or her possession, such as where the person conceals the items, no duty to approach and deter can arise. It would be an onerous burden for a storekeeper to be required to approach and deter every customer who the storekeeper intuitively suspected might attempt to leave the store without paying for items which he was openly carrying toward the check-out stand. Such a burden would far exceed the duty stated in section 344, comment f of the Restatement and adopted by us in Dwiggins, i.e., no duty arises until the storekeeper knows or should know that a criminal act (like shoplifting) is likely to occur which might imperil the safety of customers (when the storekeeper attempts to apprehend and detain the suspect). See Dwiggins, 811 P.2d at 183.

Steffensen relies heavily on Smith's own policy which directed that employees on the sales floor should greet and make eye contact with customers, "especially those who are acting suspiciously," and to make use of the intercom system by calling for security from time to time. The calling gives the potential shoplifter "an uneasy feeling that security is in the store." This argument does not aid Steffensen. As we have already noted, Canham did make eye contact with Burnett as he walked past him. Burnett knew he was being watched and got in a check-out line. Also, Burnett was not objectively acting suspiciously. Canham's suspicion that he might be a shoplifter was only a "hunch" because of the area of the store from which he came. More importantly, the law fixes the legal duty owed by a storekeeper to its customers, and that duty cannot be altered by higher standards prescribed by the merchant for his or her employees. In a number of cases, it has been held that a merchant's policy for apprehending and detaining suspected shoplifters is not admissible when it conflicts with applicable statutory law. Alvarado v. City of Dodge City, ...