Down to Size: Preventing Overreaches in Premises Liability Cases
By Paul V. Esposito
We are surrounded by chain stores. Go anywhere in the country, and you’ll likely see the same stores you see at home. Makes you feel like you never left. Though chains have been around for centuries, their number has grown exponentially in recent decades.
Certainly, a chain’s size has its advantages. Wherever its customers live or go, they can count on finding a favorite store nearby. What customers need and want will likely be there. As for a chain, it can take advantage on a nationwide basis of product trends. And with its better buying power, it can lower prices and so attract new customers.
But for a chain, size can also be disadvantageous. Size creates a big footprint that can spell trouble in premises liability cases. Although the general rule is that land is assumed to be unique, the multiplicity of stores encourages generalizing among stores. So, even though differences exist, everything tends to get lumped together.
This happened in a premises liability case we recently monitored. A man lost both legs when a reckless driver’s car jumped a curb in front of a chain store. Over objection, he was allowed to discover evidence of incidents occurring up to 15 years earlier at the chain’s many stores nationwide. The court allowed discovery despite the lack of prior personal injuries and despite the difference in property conditions involved in them. A massive settlement followed.
A couple weeks later, the Kentucky Supreme Court rendered a decision that might provide help for chains fighting premises claims. It’s worth knowing. Walmart, Inc. v. Reeves, 2023 Ky. LEXIS 6 (2/16/23).
It was after midnight when Leigh Ann Reeves finished her shopping at a local Wal-Mart. After she entered her car, two men tried to rob her. They hit Leigh Ann twice before a bystander chased them away. She sued Wal-Mart for negligently failing to protect her from the assault and robbery. Leigh Ann contended that Wal-Mart should have assigned security personnel to the parking lot.
In response to Wal-Mart’s motion for summary judgment, Leigh Ann produced police reports and a CAP Index Crimecap Report showing crime statistics for an area. But because there were no crimes near the store so close in character and number to make the assault reasonably foreseeable, the trial court granted the motion. The Court of Appeal reversed.
The Kentucky Supreme Court reinstated summary judgment. The Court applied the longstanding rule that a landowner’s duty to protect patrons arises if it knows of activities or conduct that would lead a reasonably prudent person to anticipate that a patron might be injured. But the key was that the Court applied its analysis to the property in question, not the entire chain. Leigh Ann’s best evidence from the police reports concerned two prior purse snatchings, one over 15 years old, the other eleven years later, on the premises itself. Other reported incidents were far different: disputes between people known to each other, disputes between loss prevention staff and shoplifters, or incidents started off-premises. There were no assaults. The incidents did not evidence foreseeability.
Nor did the CAP Index crime report help Leigh Ann. Though it showed higher-than-average crime statistics, including for assault and battery, for the county, it showed “no statistical information specific to Wal-Mart’s actual premises” (emphasis in original). It even showed that crime statistics covering the area of the Wal-Mart store were lower than average. Because “foreseeability is specific to the premises at issue,” the Court ruled that Wal-Mart had no duty to protect Leigh Ann from an assault and robbery in its parking lot.
Learning Point: Profitable and likely highly insured, chains are obvious targets for litigation. To best defend them from premises liability claims, make every effort to shrink their size. The focus must be kept on the premises in question, not on stores miles away. The design, layout, dimensions, grounds, and physical features may significantly differ from store to store. So, too, may the stores’ history of prior incidents. A store having no history of incidents should not be lumped with a store having them.
The groundwork must be laid during discovery. Defendants should oppose discovery of incidents not involving the property in question. This is particularly important for chains having a significant franchise component. It is unlikely that independent franchisees will know what happened at others’ stores. Defendants should oppose disclosure of incidents not sufficiently like the involved case. A parking-lot purse snatching is irrelevant to a parking-lot collision. They should also oppose accidents that are so old as to not establish foreseeability. A five-year window should be the max.
Defendants should also be prepared for extensive motion in limine practice. Before a jury hears evidence bearing on foreseeability, a court must determine whether it is similar enough to the incident to be probative. A plaintiff obtains a huge advantage just by mentioning prior incidents to a jury. Their number must be whittled down to the incidents on the property itself. At the very least, a plaintiff must be made to show a substantial similarity between properties on which similar incidents occurred.
These days, limiting the scope of evidence to the property at issue won’t be easy. But for a chain, it’s crucial to controlling the narrative and limiting liability and damages exposure.