published Wednesday, July 24th, 2013

Drunken Chattanooga Walmart customer case to set precedent

Jolyn Cullum was loading groceries into her car in the parking lot of a Chattanooga Walmart in February 2011 when another driver backed out without looking, knocked her over, crushed her with a shopping cart and pinned her between the two vehicles.

That driver was Jan McCool, who had just been kicked out of the Signal Mountain Road Walmart because she was acting drunk and belligerent.

Soon after, Cullum sued both McCool and Walmart, arguing that the retailer's employees were negligent because they didn't call the police or warn customers about McCool's intoxication. The Chattanooga case is headed to the Tennessee Supreme Court and is drawing national attention from business advocates who claim it could significantly increase business owners' liability.

The National Federation of Independent Business filed a brief last week to protest the most recent decision in the case by the Tennessee Court of Appeals, which overturned a lower court's initial decision to dismiss the case.

"How far does a store have to go to ensure that no harm occurs to any patron that comes in the doors?" said Elizabeth Milito, senior executive council with the NFIB Small Business Legal Center. "There are some things that a business owner just can't control."

In the appeal, Cullum, represented by Chattanooga attorney Amelia Roberts, argued that Walmart had a legal duty to protect her from the danger presented by McCool. But Walmart argued that the retailer does not have a duty to control or accommodate an intoxicated customer when the store didn't contribute to the intoxication.

"This is a regrettable accident involving two customers in a parking lot," said Randy Hargrove, a Walmart spokesman. "We think the issue of a business having liability for the actions of an allegedly intoxicated customer is an important one for the Supreme Court of Tennessee to decide. We believe the trial court properly ruled when it dismissed the case against us."

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Cullum is asking for $1 million in compensatory damages as well as additional punitive damages.

"This is a simple, straightforward following of the law that a business has a duty to protect its customers," Roberts said. "Walmart has a Wild West mentality that you better look out for yourself. And it's just egregious in this case. They actually knew of this danger and turned a blind eye to it."

The idea that a business has a responsibility to protect its customers from foreseeable danger is not new, said Jeremy Cothern, associate attorney at Berke, Berke & Berke in Chattanooga.

The concept was first established in a 1996 case, McClung v. Delta Square Ltd. Partnership. That case determined that a premises owner can be held liable for third party criminal acts on its premises if it has a reason to know those acts could occur, Cothern said.

"If McCool had gone inside and had never been identified as intoxicated, this wouldn't be a case," he said. "But the pharmacy employees knew who she was, they knew she was driving, they expelled her from the store and knew she posed a threat not only to the Walmart parking lot, but out on the road."

If criminal acts are foreseeable -- if the business knows or should know that criminal acts could reasonably happen -- then it has a duty to take reasonable steps to protect customers, the appellate court's opinion states, referring to the 1996 case.

In this case, Walmart employees could have called the police, decided not to kick McCool out or could have watched her leave and ensured that other customers stayed out of her path, Judge John McClarty wrote in the opinion.

Those options are "absurd," Milito said. She said the store did all it could do by kicking McCool out. She added that small businesses don't have the resources to police each and every customer.

"This really opens the door to almost putting a baby-sitting duty on retail stores to ensure the safety of their patrons inside the store, outside the store and to protect them from any other customers or even just people outside the store," she said.

But Cothern said he doesn't think a decision against Walmart would place an undue burden on business owners.

"It is not going to place an unreasonable burden on small business owners because the obligation is to act reasonably, and 'reasonably' is determined by the circumstances," he said. "It depends on the size of the business, how many employees there are, what exactly is noticed, what type of danger is posed, etc. It's difficult to imagine all the different facts that could be present."

The case will be heard in the Tennessee Supreme Court in September.

Contact staff writer Shelly Bradbury at sbradbury@timesfreepress.com or 423-757-6525.

about Shelly Bradbury...

Shelly Bradbury joined the Times Free Press as a business reporter in January 2013, after starting with the paper as a general assignment intern in July 2012. She is from Houghton, New York, and graduated from Huntington University in Huntington, Indiana, with a bachelor’s degree in journalism and minor in management. Before moving to Tennessee, Shelly previously interned with The Goshen News, The Sandusky Register and The Mint Hill Times. Outside the newsroom, Shelly enjoys ...

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