Submitted: May 4, 1994
Filed: June 16, 1994
Charles A. Riffee, II
Caldwell, Cannon-Ryan & Riffee
Charleston, West Virginia
Attorney for the Appellant
W. Michael Moore
Kay, Casto, Chaney, Love & Wise
Charleston, West Virginia
Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus point 3, Aetna Casualty & Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
This is an appeal by Patricia Ward from an order of the
Circuit Court of Cabell County awarding Sears, Roebuck & Co.
summary judgment in a personal injury action. The appellant argues
that the trial court erred in granting summary judgment inasmuch as
a genuine issue of material fact existed at the time of the
granting of summary judgment and that, under the circumstances,
summary judgment was improper. After reviewing the questions
raised and the documents filed, this Court agrees with the
appellant's assertions. Accordingly, the judgment of the Circuit
Court of Cabell County is reversed.
On February 9, 1992, the appellant, Patricia Ward, was
shopping with family members in the Sears, Roebuck & Co. retail
store located in the Barboursville Mall in Barboursville, Cabell
County, West Virginia. At the same time, two employees of Sears
were politely escorting a suspected shoplifter, Darrin West, to the
Sears security office. The incident which gave rise to the present
case occurred when the suspected shoplifter bolted and started
running. As he was running, he knocked the appellant to the ground
and broke her coccyx.
Following the incident, the appellant sued the suspected
shoplifter, Darrin West, and she also sued Sears, Roebuck & Co. and
the owner or tenant of the property in which the Sears store was located. In suing Sears, the appellant essentially claimed that
the company had failed to use appropriate care in chasing and
pursuing the suspected shoplifter. She also claimed that Sears
failed to take reasonable precautions to protect her from the
dangers inherent in the design, layout, arrangement, and use of its
premises. She prayed for trial by jury.
Following the filing of various documents in the case,
Sears moved for summary judgment. In support of its motion, Sears
argued that the documents showed that the shoplifter readily
admitted that he had attempted to shoplift, and that when Michelle
Taylor and Henry Jones, who were employed by Sears as loss
prevention guards, approached him in the store, he agreed to
accompany them to the loss prevention office. Sears stated that at
the time Mr. West was neither violent nor disorderly and that,
under the circumstances, its employees had no reason to foresee
that Mr. West would bolt and cause injury to the appellant. It
essentially took the position that negligence on the part of its
employees did not proximately cause the appellant's injuries.
Sears argued that a party cannot be held liable for damages which
result from an event which is not expected and which can not be
anticipated by an ordinarily prudent person, a position supported
by a number of West Virginia cases. Haddox v. Suburban Lanes,
Inc., 176 W.Va. 744. 349 S.E.2d 910 (1986); Puffer v. Hub Cigar
Store, 140 W.Va. 327, 84 S.E.2d 145 (1954). It further argued that
many cases indicate that where a shoplifter has voluntarily agreed to accompany a store employee and has unexpectedly bolted from the
store employee, the store is not responsible for the customer's
injury. In support of this proposition, it cited Graham v. Great
Atlantic & Pacific Tea Co., 240 So.2d 157 (Fla.App. 1970); Radloff
v. National Food Stores, Inc., 20 Wis.2d 224, 121 N.W.2d 865,
rehearing denied, 20 Wis.2d 224, 123 N.W.2d 570 (1963); Knight v.
Powers Drygoods Co., 225 Minn. 280, 30 N.W.2d 536 (1948); and
Martin v. Piggly-Wiggly Corp., 469 So.2d 1057 (La.App. 1985).
To support its position that its employees did not expect
the shoplifter to bolt and injure the appellant, Sears submitted
the affidavits of Henry Jones and Michelle Taylor, the loss
prevention guards who were escorting the shoplifter. In the
affidavits, which were essentially identical, the affiants stated
that they reasonably believed that Darrin West had committed
shoplifting and that Mr. West had freely admitted to attempting to
shoplift, that he had agreed to accompany them to the loss
prevention office, and that he had given no indication that he
might try to flee. They stated that at no time prior to his
attempted flight did they expect him to make such an attempt and
that they did not regard him as dangerous. They claimed that
neither they nor any other employee of Sears, Roebuck & Co. were
chasing him prior to his running into the appellant and that only
after he ran into the appellant did any employee of Sears pursue
and apprehend him.
After taking the motion for summary judgment under
consideration, as well as the material submitted in support of that
motion, the circuit court, on May 10, 1993, granted the motion of
Sears, Roebuck & Co. for summary judgment. In granting the motion,
the circuit court accepted Sears argument and affidavits. The
court found that Mr. Jones and Ms. Taylor, as loss prevention
employees employed by Sears, had authority under the West Virginia
Code to detain Darrin West, whom they reasonably believed had
committed shoplifting. The court further found that Mr. West
admitted that he had shoplifted and that he agreed to be escorted
to the loss prevention office and that at that time Mr. West was
neither violent nor disorderly, and he gave no indication of a
propensity to flee. The circuit court concluded that the evidence
showed that while Ms. Taylor and Mr. Jones were escorting Mr. West,
he began to run without warning, and that he had run approximately
ten feet when he collided with the appellant and knocked her down.
Lastly, the court found that at no time prior to the attempted
flight did Ms. Taylor and Mr. Jones expect Mr. West to make an
attempt to flee and that Sears and its employees had no duty to
take extraordinary safety measures since they could not have
reasonably anticipated violence on the part of the suspected
shoplifter, Darrin West. The court concluded:
The Court finds from the evidence that the employees of Sears did not know that they were dealing with a vicious or violent person, and there is nothing in the record to indicate that they should have so known. The undisputed evidence in the case does not create a case of negligence. Knowledge of the fact that Darrin West was a shoplifter was not knowledge that he was vicious, violent or dangerous as well. The undisputed evidence in the case does not create a case of negligence.
The court concluded that Mr. West's negligence and willful conduct was the proximate cause of the injuries to the appellant and that Sears and its employees maintained the premises in a reasonably safe condition and exercised ordinary care to protect their customers, including the appellant. On the basis of all these facts, the court ruled that summary judgment was appropriate.
On appeal, the appellant claims that the circuit court
erred in granting summary judgment.
In Aetna Casualty & Surety Company v. Federal Insurance
Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this
Court discussed at some length when summary judgment should be
granted under the West Virginia Rules of Civil Procedure. In
syllabus point 3 of that case, the Court stated:
A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.
See also Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992); Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990); Lusk v. Doe, 175 W.Va. 775, 338 S.E.2d 375 (1985); Handley v. Town of Shinnston, 169 W.Va. 617, 289 S.E.2d 201 (1982); and Hines v. Hoover, 156 W.Va. 242, 192 S.E.2d 485 (1972).
The appellant claims that the owner/occupant of the
premises is required by the law to exercise ordinary care to
protect an invited person from injury inflicted by other persons
present on the premises. She argues that the documents submitted
in the case, at the very least, raise a genuine and material issue
of fact as to when and how the pursuit of the shoplifter, Darrin
While the cases advanced by Sears, Roebuck & Co. in the
present case in support of its motion for summary judgment suggest
that a storeholder should not be liable when a seemingly peaceful
shoplifter is being escorted and he bolts and injures a customer of
the store, those cases involve situations where the shoplifter
bolted and, while not being pursued by store employees, struck a
There are cases which suggest that, when store employees
do attempt to pursue a bolting shoplifter, the pursuit may
constitute negligence. For instance, in Williams v. McCrory's
Department Store, 354 So.2d 725 (La.App. 1978), cert. denied, 356
So.2d 1004 (La. 1978), where a security guard pursued and
eventually caught a suspect, the court ruled that the pursuit by
the security guard was a substantial factor in the customer's
injury and concluded that the security guard had deviated from
approved police procedure in making the pursuit. Somewhat
similarly, in McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901 (Tex. 1980), on remand Tex.App. 622 S.W.2d 618 (1981), the
court held that the negligence of a security guard in chasing one
of two shoplifters through a crowded mall was a substantial factor,
cause in fact, and a proximate cause of a collision between the
shoplifter and the customer. The court concluded that the
shoplifters ran as they did because they were being closely pursued
by security guards.
In view of these cases, this Court believes that a
material question relating to the potential liability of Sears,
Roebuck & Co. in the present case is whether the Sears guards were
attempting to pursue the shoplifter, Darrin West, at the time he
struck the appellant, or whether they did not attempt to pursue him
until after the collision had occurred.
Although the affidavits of the two security guards
suggested that they were not pursuing the suspected shoplifter at
the time of the collision with the appellant, the deposition of
James West, another person present at the time of the collision,
was introduced before the circuit court ruled on the motion for
summary judgment. In that deposition, David James, a witness to
the collision in which the appellant was injured, stated:
As I came around the bend, I noticed a commotion. I saw three people, young people. It didn't really register, I just thought three young people raising cane or something, and before I got hit, I stepped aside with the baby, and they kept going by me and the man security guard was pretty close to the guy that they were chasing, and there was a girl behind him . . . they were coming at me so, so I had enough time to -- they were probably, when I noticed the first person, was probably ten feet.
The statement in this deposition, that "the man security
guard was pretty close to the guy that they were chasing," in this
Court's view contradicts the affidavits of Sears' security guards
and raises a question of fact as to whether the guards were chasing
the shoplifter at the time the collision occurred. As previously
indicated, there is authority indicating that where a store's
guards are actually chasing a shoplifter at the time a collision
with an innocent bystander occurs, the store may, under certain
circumstances, be held to be negligent and liable.
Given all the documents submitted in this case, the Court
cannot say that it is clear that there is no genuine issue of fact
to be tried. To the contrary, there are plainly contradictory
statements, two of which indicate that the security guards were not
chasing Darrin West and a third which says that they were. The
Court also believes that inquiry concerning the facts is desirable
to clarify the application of law. Under such circumstances,
syllabus point 3 of Aetna Casualty & Surety Company v. Federal
Insurance Company of New York, supra, indicates that summary
judgment is inappropriate.
The summary judgment of the Circuit Court of Cabell
County is, therefore, reversed and this case is remanded for trial.