Mitchell v. Giant Food, Inc.

JAMES S. GETTY, Judge, Specially Assigned. The issue of the liability of a storekeeper for injury to a customer arising out of the pursuit of a suspected shoplifter by an employee has not heretofore been addressed by our appellate courts. On May 10, 1986, Cynthia Mitchell was at Kettering Plaza in Prince George’s County, assisting with a bake sale. After concluding her participation in the bake sale, shortly before 2:00 p.m., Ms. Mitchell approached one of the two entrances to a Giant Food market located within the Kettering Plaza complex.

Her purpose was to complete her Saturday grocery shopping. The two entrances to the Giant Market have two sets of glass doors, each set has two doors, one for patrons entering the store and one for those exiting the premises. The outer doors adjoin a sidewalk and the inner doors permit entry into the market area. The short space between the two sets of doors forms an enclosed walkway.

Both sets of doors open automatically as a shopper approaches the door area. Approximately nine feet from the east entrance door is a parcel pick-up area delineated by a line of metal grating that establishes the outer boundary of the pick-up areas. The grating is spaced to allow customers, but not shopping carts, to pass between the sections when entering or leaving the area. An unwary Cynthia was walking through the parcel pick-up area toward the store entrance when she noticed a man leaving the store followed by a store employee.

What she observed at the time did not appear unusual and gave her no cause to fear for her safety. As she took several more steps ¹⁴⁸ toward the entrance, the suspect, then being pursued by a store employee, ran into Ms. Mitchell, knocking her to the pavement and causing her to strike her forehead on the metal grating beside her. The suspect fell on top of Ms. Mitchell and a scuffle ensued between the suspect and the store employee as Ms. Mitchell lay on the pavement. From this incident Ms. Mitchell suffered multiple injuries; the suspect escaped both injury and apprehension.

The store employee, Glen Dye, was engaged in his duties as a management trainee at the Kettering Plaza Giant market. While observing the activity within the market, Mr. Dye observed a young man stop a grocery cart near the manager’s office at the front of the store. The man removed a shopping bag from the cart and proceeded toward the exit and Mr. Dye followed him. As the man stepped on the treadle causing the inner exit door to open, Mr. Dye, who was then directly behind the person being followed, observed approximately nine cartons of cigarettes inside the bag.

Believing that a shoplifting was taking place, Mr. Dye attempted to grab the bag. A struggle ensued and the suspect broke free and ran through the second exit door with Mr. Dye in pursuit. A second scuffle ensued between the suspect and Mr. Dye after Ms. Mitchell had been knocked to the ground and the suspect had fallen on top of her. On these facts Ms. Mitchell filed suit against Giant Food, alleging that Giant was negligent in that it knew or should have known that shoplifting would occur on the premises and •that shoplifters posed a threat to the safety of its customers.

The complaint asserted that Giant adopted a policy authorizing all personnel to aid in the detection and apprehension of shoplifters without providing any training to non-security personnel in order to minimize the risk posed to customers. Nor did Giant warn customers of the potential harm to business invitees by shoplifting suspects. At the conclusion of Ms. Mitchell’s case on March 4, 1992, Giant filed a motion for judgment. The court reserved its ruling on the motion and the case was submitted to the jury following a second motion for judgment when Giant declined ¹⁴⁹ to present any further evidence.

The jury eventually reported that it was deadlocked “eleven to one for the plaintiff.” No harm was done by the jury’s announcing the box score in reporting that a unanimous verdict could not be returned, because the court dismissed the jury without further comment. Thereafter, the case was briefed and argued before the trial judge on a renewed motion for judgment filed by Giant. By written order dated May 15, 1992, the court granted Giant’s motion. From that judgment, Ms. Mitchell appealed to this Court.

The trial judge clearly relied upon reported cases from Wisconsin, Florida and Minnesota in granting summary judgment for Giant. He said: In the present case the record is barren of any evidence from which the defendant store could have anticipated violence on the part of the shoplifter. This reasoning is consistent with the holding in the following cases: Graham v. Great Atlantic and Pacific Tea Company, 240 So.2d 157 (Fla.1970); Maloney v. Great Atlantic and Pacific Tea Company, 369 So.2d 590 (Fla.1978); Radloff v. National Food Stores, Inc., 20 Wis.2d 224 , 121 N.W.2d 865 (1963); and Knight v. Powers Dry Goods Co., Inc., 225 Minn. 280 , 30 N.W.2d 536 (1948). In Graham, supra, a shoplifter, who voluntarily returned to the store with the store manager, bolted and ran toward an exit where he collided with a customer who was injured as a result of the collision.

The Florida court upheld a lower court dismissal of the case although acknowledging that the principal question in such a case is one of foreseeability. The court held that: Unless defendant should reasonably have anticipated violence on the part of the suspected shoplifter, then clearly it had no duty to take the extraordinary safety measures alleged by the plaintiff to have been negligently omitted. A more egregious factual scenario was described in Malo- ney, supra, involving a “rather extended chase up and down the aisles” of the store, culminating in a customer being ¹⁵⁰ knocked down and injured. Despite evidence of thirty to fifty shoplifting attempts per day, 1 the A & P employees were not instructed on how to deal with shoplifters, or whether and to what extent they should be chased.

The court, however, upheld the granting of summary judgment upon the same rationale stated in Graham . The Supreme Court of Wisconsin reversed a judgment against a storekeeper in Radlojf, supra, on the following facts: Two store employees observed a man place two cartons of cigarettes under his jacket and leave the premises. The shoplifter was detained by the employees and agreed to return to the store manager’s office. En route to the rear of the store he pushed one of the employees to the floor and ran out the front exit.

As he was running through a check-out aisle, one of the employees yelled, “Stop, you thief.” Ignoring the request, the shoplifter continued running and knocked a customer to the floor in the course of his escape. A divided court held that a directed verdict should have been entered, because only the plaintiffs testified and there was no testimony showing knowledge on the part of the storekeeper or his employees that the shoplifter would take such action as he did and injure another customer. Thus, the majority held there was no prima facie case giving, rise to a jury determination of whether the storekeeper or his employees had discovered or by the exercise of reasonable care could have discovered that the shoplifter was about to do acts threatening bodily harm to other customers. Two dissenting justices would have affirmed the jury verdict for the plaintiff.

In Knight, supra, the Supreme Court of Minnesota held that a storekeeper was not liable to a customer who was knocked down and injured by a fleeing shoplifter. The court reasoned that “until [the shoplifter] started to run, there is no evidence that the defendant knew or should have known that ¹⁵¹ he was vicious.” The employees “did not know they were dealing with a vicious or violent person.” In each of the cases cited above the courts concluded that a plaintiff must demonstrate that the defendant should have foreseen that the specific shoplifter in question was dangerous. More recent cases, however, analyze the issue within the context of the principles set forth in section 344 and 448 of the Restatement (Second) of Torts. Passovoy v. Nordstrom, 52 Wash.App. 166 , 758 P.2d 524 (1988), represents that state’s first case discussing a merchant’s liability to its patrons for injury caused by a fleeing shoplifter.

A Nordstrom store detective observed two men surreptitiously place clothing into bags. He notified a second security officer and they decided to confront the men in the store. While being escorted to the security office, one of the suspects fled and knocked down two customers on a stairway. One of the detectives pursued the suspect yelling, “Stop that man.” Detectives from an adjoining store caught the suspect.

The trial court granted summary judgment to Nordstrom; the Court of Appeals reversed. Citing sec. 344(b) of the Restatement, 2 the Court held that whether the pursuing detective could have given a warning adequate to enable the two customers to avoid the harm presents a material issue of fact that precludes summary judgment. Nordstrom’s second argument was that it was not the proximate cause of the injuries because the suspect’s criminal act was unanticipated and, therefore, a superseding cause of the accident. The court disposed of this contention, stating: ¹⁵² Only when the intervening negligence is so highly extraordinary or unexpected that it can be said to fall outside the realm of reasonable foreseeability, as a matter of law, will it be held to supersede the defendant’s negligence.

The likelihood that a shoplifter may flee, or collide with other customers while escaping, did not impress the court as being unforeseeable. Summary judgment for a store owner was also reversed in Jones v. Lyon Stores, 82 N.C.App. 438 , 346 S.E.2d 303 (1986). The practice in these stores was to lock the exit doors when a shoplifting was in progress and call the police. The system was successful