Giant Food, Inc. v. Mitchell

RODOWSKY, Judge. While walking toward the nearby entrance to a supermarket of the petitioner, Giant Food, Inc. (Giant), the respondent, Cynthia Robin Mitchell (Ms. Mitchell), was run into and injured by a shoplifter who was fleeing from the store on foot. Ms. Mitchell sued Giant, contending that a Giant management trainee, Glenn Dye (Dye), had negligently confronted the ⁶³⁶ shoplifter within the store. Here we review, under the law of business invitees, the sufficiency of Ms. Mitchell’s evidence that Giant was negligent, an issue on which the trial court and the Court of Special Appeals reached different conclusions.

The general principles governing liability in a case of this .type may be stated briefly. Giant is a storekeeper and Ms. Mitchell was its invitee. Storekeepers owe their invitees a duty of ordinary care to maintain their premises in a reasonably safe condition. Moulden v. Greenbelt Consumer Serv., 239 Md. 229, 232 , 210 A.2d 724, 725 (1965).

What constitutes “ordinary care” depends' upon the circumstances. Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 451 , 146 A. 282, 283 (1929). Thus, “conduct, which under one set of circumstances would constitute ordinary care, might under others be wholly insufficient to gratify the demands of that term.” Id. Storekeepers' are not insurers of their customers’ safety, and no presumption of negligence arises merely because an injury was sustained on a storekeeper’s premises.

Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 118 , 113 A.2d 405, 408 (1955). A storekeeper’s liability in negligence for a customer’s injuries arises only from a failure to observe the duty of ordinary care. Moulden, 239 Md. at 232 , 210 A.2d at 725 ; Safeway Stores, Inc. v. Bolton, 229 Md. 321, 326 , 182 A.2d 828, 830 (1962). Storekeepers who know, or by the exercise of ordinary care would discover, a dangerous condition that they have no reason to believe their customers will discover, may be held liable for injuries incurred as a result of that condition.

Evans v. Hot Shoppes, Inc., 223 Md. 235, 239 , 164 A.2d 273, 276 (1960); Yaniger v. Calvert Bldg. & Constr. Co., 183 Md. 285, 289 , 37 A.2d 263, 265 (1944). A storekeeper’s duty to use ordinary care to protect business invitees applies “not only against dangers which may arise from some defect or unsafe condition of the physical property ... but against dangers which may be caused by negligent acts of his ⁶³⁷ employees, or even of customers, where, as a reasonably prudent person, he should have anticipated the possible occurrence and the probable results of such acts.” Eyerly v. Baker, 168 Md. 599, 607 , 178 A. 691, 694 (1935). Eyerly held, inter alia, that a storekeeper was not liable for injuries sustained by a customer in a revolving door that had been given a sudden, violent, and unexpected impetus by a third party.

In another revolving door accident case, in which an elderly woman was injured when two male youths spun the non-defective door with great force, the plaintiff proved that five, similar, personal injury accidents had occurred at the defendant’s store between December 13, 1968 and August 11, 1970. Litz v. Hutzler Bros. Co., 20 Md.App. 115, 121 , 314 A.2d 693, 696 (1974). Affirming a judgment for the defendant entered at the end of the plaintiffs case, the court held that the prior incidents “do not, singly or collectively, provide a base for application of the rule declared in Eyerly____ They do no more than demonstrate that use of a revolving door necessarily involves some risk of harm to its user.

That risk is not, however, an unreasonable risk such as gives rise to a duty to warn of danger incident to it. The inherent risk was as well known to its user as to the storeowner.” Id. at 123 , 314 A.2d at 697 . In the case before us the Circuit Court for Prince George’s County reserved ruling on Giant’s motion for judgment at the conclusion of all of the evidence. The case was submitted to the jury which was unable to reach a verdict. 1 Thereafter, the trial judge entered judgment for Giant.

The circuit court concluded that “Dye was certainly acting within the realm of reasonableness when he apprehended the shoplifter within the ⁶³⁸ store,” and that there was no evidence from which Giant “could have anticipated violence on the part of the shoplifter.” Ms. Mitchell appealed to the Court of Special Appeals. There Giant contended “that it exercised reasonable and ordinary care and that it had no way of knowing that the shoplifter had any vicious or violent propensities, or that he would flee and, in that attempt, would injure Ms. Mitchell.” Mitchell v. Giant Food, Inc., 96 Md.App. 146, 152 , 623 A.2d 1305, 1309 (1993). The intermediate appellate court, however, after quoting the rule from Eyerly set forth above, concluded that “the issues of foreseeability and proximate cause are for the jury.” Id. at 156, 623 A.2d at 1311 . This Court granted Giant’s petition for certiorari.

The facts relevant to liability and most favorable to the plaintiff are these. At approximately 2:00 p.m. on Saturday, May 10, 1986, the day before Mother’s Day, Ms. Mitchell and her mother, Viola Mitchell (Mrs. Mitchell), were at the Kettering Plaza Shopping Center in Largo, Maryland. Intending to do their food shopping in the Giant store at Kettering Plaza, they walked toward the eastern entrance to the Giant premises. Ms. Mitchell observed “customers going in and out of the store.” The entrance approached by the Mitchells has two sets of glass, double doors that form opposite ends of a short, rectangular, enclosed walkway or vestibule that is parallel to the outside wall of the store.

One doorless side of the vestibule is enclosed by the brick, exterior wall of the store. The other doorless side is enclosed by a wall of glass panels in metal studding. From the perspective of one standing outside of the entrance and facing the outer set of doors, the right-side doors of the outer and of the inner sets of doors are for persons entering the store. From the perspective of a person standing inside the store and facing the inner set of doors, the right-side doors of the inner and outer sets of doors are for persons exiting the store.

Within the enclosed vestibule the lanes for persons entering and exiting the store are separated ⁶³⁹ by a vertical metal grating or railing approximately waist high in relation to an adult of average height. The entrance and exit lanes in the vestibule are each of a width that comfortably would accommodate passage of adults only in single file. Each of the four doors opens separately and automatically through a pneumatic system triggered by the weight of a pedestrian on a treadle. Outside of the vestibule is an area delineated by segments of vertical grating or railings.

The width of each open space between segments allows one person at a time to pass through, but each opening is too narrow to permit a shopping cart to pass through. The area within these segments of vertical grating is referred to as the parcel pickup area or shopping cart corral. Ms. Mitchell entered the cart corral through an opening that was approximately eight to nine feet from the outer set of doors at the entrance that she intended to use. As she did so, she saw nothing unusual.

There was a man on his way out of the store with a Giant employee behind him. The man whom she saw was “frail, thin, ... young.” Ms. Mitchell testified that when she was two or three feet inside of the parcel pickup area “[s]omething ... bumped against” her, spun her around, and knocked her off of her feet. She struck her forehead and face on the railing as she fell to the ground. When asked to describe where she was when her daughter was struck, Mrs. Mitchell testified: “Well, I was going in, I think I was in front of her.

It was the day before Mother’s Day and there were a lot of people there but I was going into Giant. I was inside of the grate.” She said that “a man came running out of the Giant and shoved [Ms. Mitchell] down, and she hit her head on a grating and a Giant employee came running after this man____” The Giant employee fell on top of Ms. Mitchell. The incident happened “[v]ery quick and very sudden.” ⁶⁴⁰ It is undisputed that the young man who first ran into Ms. Mitchell was a shoplifter, that the Giant employee was Dye, and that the shoplifter escaped. Dye was called as a witness by the plaintiff.

He testified that he first observed the suspected shoplifter parking a grocery cart next to the manager’s office in the front of the store. The cart was full of groceries, but from the center of the cart the suspect removed a shopping bag, the contents of which were unknown to Dye. The suspect, with the bag, walked rather quickly toward the exit door, leaving the groceries behind in the cart. Dye wanted to know what was in the shopping bag.

He followed, at a faster pace than the suspect. After the suspect had stepped on the treadle to open the exit door on the inner side of the vestibule, and as the suspect was going through that first door, Dye was able to look into the bag and see that it contained cartons of cigarettes. Dye estimated the value of the cigarettes to be over $100. In the enclosed walkway, Dye grabbed for the bag.

The shoplifter grabbed it back, and the bag dropped to the floor of the vestibule while the two struggled. Both Dye and the thief fell to the floor. The thief broke free, got to his feet, ran through the outer door of the vestibule, and collided with Ms. Mitchell in the parcel pickup area. Dye had gotten up as quickly as he could, and was at the outer exit door of the vestibule when the thief collided with Ms. Mitchell.

Thirty seconds elapsed, by Dye’s estimate, from the time when he first observed the thief take the shopping bag out of the cart to the time when the thief collided with Ms. Mitchell. Ms. Mitchell contends, as a general proposition, that a merchant who confronts a shoplifter should foresee that the shoplifter may flee. Specifically, Ms. Mitchell contends that Dye should have foreseen, when he decided to confront the shoplifter, that the thief might run through the outer exit door into the parcel pickup area where “there were a lot of people,” so that Dye acted negligently because he endangered customers and thereby breached the storekeeper’s duty. Giant, on ⁶⁴¹ the other hand, contends that Dye acted reasonably as a matter of law under the circumstances presented here.

The Court of Special Appeals focused its analysis on proximate cause and foreseeability. That court said: “The standard of reasonableness in deciding whether a storekeeper should have anticipated the possibility of injury to a business invitee brings into play the elements of that standard, proximate cause and foreseeability. Scott v. Watson, 278 Md. 160 , 359 A.2d 548 (1976).... Within the context of third party criminal activity that we are dealing with in this case, proximate cause and foreseeability may be measured by the rule set forth in Restatement (Second) of Torts, sec. 448: ‘The acts of a third person committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.’ ” 96 Md.App. at 153-54 , 623 A.2d at 1309-10 .

Section 448 concerns itself with whether the criminal act of a third person is a superseding cause of the actor’s negligence. For the purpose of § 448 the actor’s negligence is a given. For example, the wrongful death claim in Scott v. Watson, 278 Md. 160 , 359 A.2d 548 (1976), cited by the Court of Special Appeals, arose out of the murder of a tenant in the garage of the landlord-defendant’s high-rise apartment building. One issue was whether the crime of murder broke the causal connection between the landlord’s allegedly negligent failure to provide adequate security and the tenant’s death.

In the case sub judice we may assume, without affecting our analysis, that the shoplifter intentionally collided with Ms. Mitchell. We shall also assume that such an intentional tort ⁶⁴² or crime in the course of flight by the thief, with pursuit by the storekeeper, was not so remote as to fail to generate a jury issue on whether there was proximate causation between negligence, if any, on the part of Dye, and Ms. Mitchell’s injuries. 2 But, as we shall explain more fully below, the possibility of flight by the shoplifter and the possibility of injury to a customer do not necessarily create a jury issue on whether Dye was negligent. “Even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless the defendant’s conduct has created or increased an unreasonable risk of harm through its intervention.” - W.P. Keeton, Prosser and Keeton on the Law of Torts § 44, at 305 (5th ed. 1984). Nevertheless, the Court of Special Appeals concluded: “We submit that there is no reliable test that will determine the reaction of a shoplifter caught in the act. Some will submit meekly, others may resort to tears and beg forgiveness, some will flee, and still others may react with physical violence directed toward anyone present.

It is not a defense, as a matter of law, that the storekeeper can assert that he did not know the thief would flee. Common sense would indicate that if fleeing would preclude prosecution, the hares would certainly outnumber the tortoises. This is especially true in the case where the storekeeper provoked the dangerous course of action by grabbing the bag from behind [and] wrestling with the thief in the walkway____ Pellucidly, the issues of foreseeability and ⁶⁴³ proximate cause are for the jury.” 3 96 Md.App. at 156 , 623 A.2d at 1311 . By focusing exclusively on foreseeability and proximate causation the Court of Special Appeals failed to give any effect to Giant’s privilege to protect its property from theft. “Any property owner, including a storekeeper, has a ... privilege to detain against his will any person he believes has tortiously taken his property.” Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 656 , 261 A.2d 731, 739 (1970).

Restatement (Second) of Torts § 100 (1965) recognizes that “[t]he use of force against another for the sole purpose of retaking possession of a chattel is privileged,” if certain conditions are met. Those conditions, in general and as relevant here, are: 1. The person against whom the force is used has tortiously taken the chattel; 2. The actor is entitled to immediate possession as against the other; 3.

The recaption is effected promptly; 4.