Negligence Suit Against Wal-Mart Tossed

The Legal Intelligencer
January 13, 2004, Tuesday
HEADLINE: Negligence Suit Against Wal-Mart Tossed
BYLINE: By Asher Hawkins
BODY: A U.S. Eastern District judge has granted Wal-Mart Stores Inc.'s summary judgment motion in a negligence suit brought by a Pottstown branch employee whose husband shot her in the head in the store breakroom using bullets purchased at the same Wal-Mart.

The court rejected both counts presented by plaintiff Marsha Midgette - the first, that Wal-Mart's not protecting Midgette from husband Bryan resulted in her injuries; the second, that Wal-Mart engaged in negligent entrustment by selling Bryan the bullets ultimately used in the shooting. "We find that, even if defendant had carried out all ... the duties that plaintiff believes defendant owed, Bryan very likely still would have succeeded in shooting his wife," Judge Franklin S. Van Antwerpen wrote in Midgette v. Wal-Mart. "As such, no reasonable jury could find that, but for the actions and/or omissions of Wal-Mart, Bryan would not have shot his wife that night."

Patrick J. McDonnell of McDonnell & Associates in King of Prussia represented Wal-Mart in the matter. "We are obviously pleased with the judge's decision," McDonnell said, declining to comment further. The facts of the case were undisputed, according to the opinion. Marsha, then 45, had been married to Bryan for 26 years by August 1999, with no history of physical spousal abuse. In June 1999, marital problems led to Bryan's voluntary commitment into a mental health facility, but he checked himself out against medical advice after a few days and returned home to Marsha.On Aug. 26, 1999, the opinion stated, the couple were engaged in an argument in their home when Bryan shoved Marsha off a stool on which she was sitting, causing her to fall and injure her back. He threatened to strike her with his fist but eventually called an ambulance instead. A local hospital gave her pain medication, and she was soon released. According to the opinion, Bryan was charged with assault that day and was told by the district justice to stay away from Marsha until the preliminary hearing, on Aug. 31, 1999. However, Bryan's bail conditions did not mention Wal-Mart, and no protection from abuse order was ever signed.

Later that evening, Marsha went to work and informed support manager Terry Moore of the pain in her back and the assault that had caused it. After her shift ended, the opinion stated, Marsha went to a co-worker's car to rest her back. The co-worker soon went out to the car to tell Marsha that Bryan had gone in to the store, looking for her. Marsha later said that Moore directed her and the co-worker to drive to a nearby diner. Once there, they telephoned Moore, who told them to return to the store and use a rear entrance.

According to the opinion, Marsha went to work on the night of Aug. 27 and told another store manager, Randall Mummert, about the assault and the couple's surrounding marital difficulties. Mummert cautioned her to keep her personal business out of the store. Later, support manager Cathy Eroh, when informed of Marsha's situation, suggested that Marsha take time off work to deal with the problem and use the company's confidential employee assistance hotline. Marsha did neither. On the morning of Aug. 29, the opinion stated, Marsha was getting off her shift when a co-worker informed her that Bryan was sitting in the parking lot. She went to his car alone and spoke with him without incident. As she was leaving, she saw him enter the store. Later that day, she visited the Philadelphia Zoo with her daughters, sons-in-law and grandchildren. When the group returned to her daughter Joy's house, where Bryan had been staying, the group saw Bryan parked across the street. A son-in-law confronted Bryan, and the police were later called, though they informed Marsha that they could do nothing until physical harm had occurred. According to the opinion, Marsha later reported for work, accompanied by daughter Victoria and her husband.

She was early for her shift and was chatting with co-workers outside the store when Bryan drove in to the
parking lot. When Victoria learned of Bryan's arrival, she told Marsha to go to the employee breakroom. Victoria saw Bryan enter the store but did not speak to him, the opinion stated. She later testified that he looked at the time like "a trained robot... there on a mission, and he was going to do it." However, the opinion noted, Bryan's presence did not lead Victoria to call the police or alert store officials, and she and her husband began to shop for items they needed.

Earlier that evening, the opinion stated, referring to the testimony of a sales clerk, Bryan had bought ammunition for a .22-caliber firearm; the clerk noticed nothing suspicious in his behavior. About this time, Bryan asked manager Richard Faulk whether Marsha would be working that night. Faulk said he did not know. Faulk had previously been informed of the couple's marital problems, but he did not know about the court's ordering Bryan to stay away from Marsha.
According to the opinion, Marsha was in the breakroom at 9:30 p.m. when Bryan located her. Marsha later testified that she tried to make him leave and then began to talk to him when he would not do so. The opinion cited a police report as stating that at 9:39 p.m., Bryan brandished a .22-caliber revolver, shot Marsha in the head and then committed suicide.

Marsha survived but suffered extensive brain damage, she alleged in her complaint.
The court concluded that Wal-Mart was not bound by any pre-existing duty to protect Marsha, an employee of the store, from a threat posed by a third party - in this case, her husband. While noting that Pennsylvania law defines such a duty as existing between common carriers and their passengers and innkeepers and their guests as well as in other special relationships, Van Antwerpen explained that Wal-Mart would not have been negligent concerning Marsha's injuries even had a law prescribing such a duty been applicable in this case. "We agree with defendant that, based on the record before us, viewed in favor of plaintiff, plaintiff could not establish that anyone in management positions at Wal-Mart knew that she was in a position of imminent danger of serious harm," Van Antwerpen wrote. "The record shows that neither plaintiff nor her children knew, despite their special knowledge of the circumstances. If they were not aware, we fail to see how a reasonable jury could find that Wal-Mart knew Bryan was going to shoot plaintiff."

As for Marsha's negligent entrustment allegation, the court found that Wal-Mart could not have been negligent over a danger it did not know existed. Because Bryan was legally permitted to buy ammunition and did not act erratically while doing so, Van Antwerpen reasoned, Wal-Mart could not have foreseen his shooting Marsha. "It is undisputed that Bryan was under no kind of restriction preventing him from using a firearm or ammunition," Van Antwerpen wrote. "Further, Wal-Mart clearly is not the only place where one can purchase ammunition, especially for a firearm as common as a .22-caliber gun. ... Wal-Mart simply had no control over Bryan and could not have prevented the shooting from occurring."

Louis Aurely III of Wusinich Brogan & Stanzione in Downingtown handled Marsha 's case. He did not immediately respond to calls seeking comment.

[Copies of the 32-page opinion in Midgette v. Wal-Mart, PICS No. 04-0023, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.]