Cause of Action: Retail Store (Wal-Mart) Owed No Duty to Patrons of store when altercation occurs Rose vs. Wal-Mart COA Not Published 9/12/2014; PJ Combs Affirming Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons (Rose v. Wal-Mart, COA, NPO 9/12/2014)

Torts.  Duty Owed to Patrons of store when altercation occurs
Rose vs. Wal-Mart
COA Not Published 9/12/2014; PJ Combs Affirming
Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons under facts of this case.

COMBS, JUDGE: Frances L. Rose and Zachary Rose, her minor son, appeal from a summary judgment entered by the Floyd Circuit Court in favor of Wal-Mart Stores East, LP, and Tom Wyatt (one of the store’s asset protection associates). The trial court granted summary judgment on the basis that Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons under the facts and circumstances presented. After our review, we affirm.

Instead of seeking assistance from a Wal-Mart employee regarding the offensive language, Rose immediately confronted the group in the aisle and asked that they stop swearing.  According to Rose, immediately before the argument turned into a physical altercation, Wyatt (dressed in plain clothes) moved down the aisle between her and the other two women and their husbands and then exited the aisle without comment. Spriggs then pushed her own cart into Rose’s back. Punches were immediately exchanged between Rose and Spriggs. Rose admitted that it was possible that she threw the first punch. After Rose got Spriggs to the floor, Isaacs attempted to restrain Rose. According to Rose, the altercation between the women ended when Spriggs and Isaacs overheard Wyatt telephone the police for assistance. Less than two minutes had elapsed between the time that Rose initially confronted Spriggs and Isaacs and the call for police assistance was made.

Rose filed a negligence action against Wal- Mart, Wyatt, Spriggs and Isaacs. After a period of discovery, Wal-Mart filed a motion for summary judgment. It argued that it had no duty, as a matter of law, to protect Rose and/or her son from the unforeseeble conduct of third parties or to intervene once the altercation had commenced. After a hearing, the trial court granted Wal-Mart’s motion. Concluding that there was no just cause for delay, the trial court designated the order as final and appealable. Rose filed a motion to alter, amend, or vacate the judgment, which was denied. This appeal followed.

To recover under a claim of negligence, the plaintiff must prove that the defendant owed her a duty of care, that the defendant breached that duty, and that the breach was the legal cause of the plaintiff’s damages. Lee v. Farmer’s Rural Elec. Co-op. Corp., 245 S.W.3d 209 (Ky. App. 2007). It is well established that an owner of a business must exercise ordinary care to protect its customers from injury. Sidebottom v. Aubrey, 267 Ky. 45, 101 S.W.2d 212 (1937). However, a proprietor is never the insurer of the safety of his guests. Napper v. Kenwood Drive-in Theatre Co., 310 S.W.2d 270 (Ky. 1958).

A business owner has a duty to prevent an assault upon a patron only where: (1) the proprietor had knowledge that one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent the injury if he reasonably could or (2) the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests. Murphy v. Second Street Corp., 48 S.W.3d 571 (Ky. App. 2001). The critical question is whether the assault was foreseeable. Id. Foreseeability varies with the circumstances, and the care required is proportionate to the danger presented. Napper, supra.

Viewing the facts most favorably to Rose, we agree with the trial court that the unruly and offensive behavior of Spriggs and Isaacs would not lead a reasonably prudent person to conclude that the two women would become suddenly combative and seek to physically injure other patrons.

We conclude that there existed no genuine issues of material fact and that the appellees were entitled to judgment as a matter of law. Summary judgment was proper, and we affirm.

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