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Business Liability to Customers

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Case:  Jolyn Cullum, et al v. Jan McCool, et al

Issue Is a business liable to a customer injured by a third party when the business expels the third party from its store for being inebriated but does not undertake safety measures to protect customers from the third party?

Facts:  Ms. McCool (“Third Party”) entered Wal-Mart to obtain prescription medications but was refused service and ordered to leave by employees who noticed she was inebriated.  Third Party returned to her car to drive away and unfortunately drove directly into Ms. Cullum (“Plaintiff”).  Plaintiff sued Third Party and Wal-Mart, but the trial court dismissed the claims against Wal-Mart on the basis that Wal-Mart did not have a duty to control Third-Party and lacked the means and ability to do so.

Appellate Decision:  The COA reversed and held in favor of Plaintiff, concluding that the trial court should have focused on the duty to protect Plaintiff rather than the ability to control Third-Party.  Under this approach, the COA noted that businesses have a duty to take reasonable steps to protect customers from reasonably foreseeable risks, and here Wal-Mart had actual notice of a specific danger to its customers.  The COA also noted that Wal-Mart may not have been able to prevent Third-Party from leaving the store, but it did not have to “actively expel her” without undertaking some measures to ensure the safety of its customers.

Review Granted:  May 14, 2013.

Prediction Ben thinks the Supreme Court will affirm the COA in favor of the Plaintiff because of Wal-Mart’s actual knowledge of the threat to its customers.  The Plaintiff may have a tough time showing that Wal-Mart could have taken a feasible action that would have protected the Plaintiff, but, as the COA observed, “it is ultimately for the trier of fact to determine” whether Wal-Mart is liable.