Boudreau v. Shaw's Supermarkets Inc. ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-1754
    JEFFREY BOUDREAU, as Personal Representative of the Estate of
    Wendy Boudreau,
    Plaintiff, Appellant,
    v.
    SHAW'S SUPERMARKETS, INC.,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. D. Brock Hornby, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Lynch and Thompson, Circuit Judges.
    Laura H. White and Bergen & Parkinson, LLC on brief for
    appellant.
    Heidi J. Eddy, Elizabeth G. Stouder, and Richardson, Whitman,
    Large & Badger on brief for appellee.
    April 10, 2020
    LYNCH,    Circuit   Judge.       On   August     19,   2015,    Connor
    MacCalister attacked and killed Wendy Boudreau with a knife in the
    ice cream aisle of the Saco, Maine Shaw's Supermarket.              Both Wendy
    Boudreau and MacCalister were regular customers of the Saco Shaw's.
    MacCalister later confessed that she went to Shaw's intending to
    kill someone and chose Wendy Boudreau because she was elderly and
    would be unable to fight back.
    Two years later, Jeffrey Boudreau, Wendy Boudreau's
    husband and the executor of her estate, sued Shaw's in federal
    court asserting wrongful death and conscious pain and suffering
    under Maine law.      Boudreau asserted that Shaw's owed a duty to
    protect its patrons from foreseeable harm and that MacCalister's
    attack was foreseeable.        He further argued that Shaw's breached
    this duty by failing adequately to monitor the store and that this
    breach was the proximate cause of Wendy Boudreau's death.                   In a
    separate   count,    he   alleged   that    Shaw's'    breach     caused   Wendy
    Boudreau conscious pain and suffering.           The district court entered
    summary judgment for Shaw's, concluding that Shaw's did not owe a
    duty under Maine wrongful death law to protect Wendy Boudreau from
    this   attack   by   MacCalister    because      it   was   not   foreseeable.
    Boudreau v. Shaw's Supermarkets, Inc., No. 2:17-cv-259, 
    2019 WL 3242051
    , at *1, *14 (D. Me. July 18, 2019).            We affirm.
    - 2 -
    I.
    A.   Facts
    We recount the facts in the light most favorable to
    Boudreau and draw all reasonable inferences in his favor.    Roy v.
    Correct Care Sols., LLC, 
    914 F.3d 52
    , 57 (1st Cir. 2019).1
    1.      The Saco Shaw's
    The Saco Shaw's is a grocery store located in downtown
    Saco, Maine that serves around 15,000 customers per week.2    It is
    one of the biggest Shaw's in Maine.      The Saco Shaw's served "a
    very, very diverse clientele with a lot of walkers with backpacks."
    The store has two front entrances, one on each side of
    the store.    When a customer enters the store, the produce section
    is on the far left and the floral department is on the far right
    of the store.     The ice cream aisle is closer to the side of the
    store with the floral department.
    The management personnel of the Saco Shaw's changed
    several times between 2009 and 2015.     John DeRoche was the store
    manager from 2009 to 2014.     An interim manager served for a few
    months in mid-2014 until Bryan Goodrich took over as the manager
    1    We describe the testimony and incidents involving
    MacCalister primarily relied upon by Boudreau.     For additional
    detail, we refer the reader to the district court's decision.
    2    Shaw's conceded at the district court that the knowledge
    of its employees may be treated as its own knowledge.
    - 3 -
    around November 1, 2014.         Goodrich was the Saco Shaw's manager at
    the time of Wendy Boudreau's murder.
    2.     MacCalister's Interactions with Shaw's Employees and
    Customers Before the August 2015 Attack
    Connor MacCalister frequently visited the Saco Shaw's in
    the years before the murder of Wendy Boudreau.               DeRoche recalled
    first seeing MacCalister in the Saco Shaw's in 2010 or 2011.                 He
    stated that the first time he saw her he was "a little shocked"
    because of her "really baggy clothes" with a "chain down on her
    side" and her "shaved head."           During his time at Shaw's, DeRoche
    never    saw    MacCalister   behave    violently,   raise    her   voice,   or
    carrying a weapon at any time inside the Saco Shaw's.               He had no
    knowledge of her acting strangely in the Saco community.
    On May 24, 2011, more than four years before the murder
    of   Wendy     Boudreau,   two   customers   complained   to    DeRoche   that
    MacCalister had scared them outside as they entered the store.
    MacCalister had been standing outside of Shaw's by the entrance,
    smoking discarded cigarettes out of an ashtray and blowing smoke
    rings from underneath a hood that partially covered her face.
    DeRoche promptly went outside to investigate the complaints, saw
    MacCalister, and recalled that "it looked like something out of a
    scary movie." DeRoche stated that usually MacCalister "just looked
    weird" but on that day "she looked scary" and "frozen."
    DeRoche acted on the complaints by calling the police.
    - 4 -
    He told the police, "can you tell this person I don't want her
    here anymore."    The police conveyed to MacCalister that she was
    banned from the Saco Shaw's.      The police also told DeRoche that
    they had interacted with MacCalister before, that she lived nearby
    with her mother, and that "her mother is crazier than she is."
    For a year following this incident, MacCalister was not permitted
    to shop at the Saco Shaw's.3
    A year later in mid-2012, MacCalister called DeRoche and
    asked if she could return to Shaw's.       DeRoche did not realize
    MacCalister was the caller until he later saw her in Shaw's and
    asked what she was doing there.    MacCalister told DeRoche that she
    had called to ask if she could come back.     DeRoche told her that
    she could return if she did not "cause any problems."
    After the May 2011 incident, DeRoche requested that the
    Shaw's Loss Prevention Department watch MacCalister because she
    "look[ed] suspicious," but he had never heard any complaint that
    she shoplifted.   In response to the request, Loss Prevention told
    DeRoche that they had watched her before and she had "never taken
    3    Boudreau also relies on several phone calls referenced
    in the affidavit of a Saco police dispatcher.     The dispatcher
    stated that "[a]fter MacCalister was banned, [he] took dispatch
    calls from employees of Shaw's who noted that MacCalister had
    returned to the premises and they were concerned." We understand
    these calls to be evidence of Shaw's employees enforcing the ban
    against MacCalister. As to the several other calls referenced in
    the record, we agree with the district court's decision to
    disregard them because they do not specifically reference
    MacCalister.
    - 5 -
    anything."     Loss Prevention continued to watch her "a couple more
    times" but never observed her shoplifting.           Nor did they observe
    any other concerning behavior by her.         Warren McCourt, a Shaw's
    Asset Protection Specialist, also observed MacCalister about four
    or five times between 2012 and 2014.        He stated that her behavior
    never seemed unusual.     McCourt observed MacCalister come into the
    store, purchase product, and leave.
    After the 2011 smoking incident, there were no further
    customer     complaints   to    DeRoche   about   MacCalister     and    no
    observations by Shaw's employees of MacCalister engaging in scary
    or concerning behavior.        DeRoche specifically stated that "[n]o
    one ever said a word to [him] about feeling uncomfortable with her
    in the store or being afraid of her" and that he "didn't have any
    fear of [his] safety or any of [his] employees' safety when she
    was in the store."
    Goodrich stated that after becoming manager in 2014, "no
    one ever reported anything to [him] about MacCalister" and he never
    saw her behaving strangely.        Adam Veno, Shaw's assistant store
    director who started six weeks before the murder, stated that he
    never saw MacCalister in the store.
    Joan Doyle worked as a cashier at the Saco Shaw's from
    1997   through   2015.    She   typically   worked    midday   shifts   and
    estimated that she had seen MacCalister "probably four times" in
    the Saco Shaw's before 2015.        When asked what stood out to her
    - 6 -
    about MacCalister, Doyle stated "[w]hat she was wearing," which
    Doyle described as usually a "camouflage outfit."                   Doyle stated
    that MacCalister was "very quiet, never said anything" in response
    to Doyle's greetings, and that this was "pretty unusual for
    customers."         She never heard that MacCalister had bothered a
    customer.      Doyle had heard rumors that MacCalister shoplifted but
    never observed this herself.        She also never observed MacCalister
    act violently or even speak, nor had she ever seen MacCalister
    outside of the Saco Shaw's.
    Michelle   Schaffer   worked      for   Shaw's   as    a    customer
    service representative beginning in 2011.             She estimated that she
    had seen MacCalister "multiple" times between 2011 and 2015 and
    stated that MacCalister came into the store "quite often."                    She
    described MacCalister as dressing in baggy clothes that were "all
    black, [with] big jackets, [a] hood . . . [and] dark, black
    makeup."      Schaffer stated that MacCalister's eyes were "big from
    time to time" and she would "just look at you" in a way that made
    Schaffer think that she was "on something."            Sometimes MacCalister
    came into the store "shaking."          Schaffer stated that "if somebody
    saw the same thing that [Schaffer] saw," they would think that
    "something is up with [MacCalister]" but that this was not "out of
    the   norm"    in    downtown   Saco.     She    stated   that      she   thought
    MacCalister's appearance and demeanor may have made "some people
    probably [feel] threatened" and be "a little bit more on guard"
    - 7 -
    but that she had never witnessed any threatening behavior by
    MacCalister.       She explained that there were "moments" where she
    "felt probably uncomfortable" or "awkward" around MacCalister but
    that MacCalister "never did anything directly towards [her]."
    Schaffer had heard rumors that MacCalister shoplifted
    but   never      observed     MacCalister      shoplifting.       She    had   seen
    MacCalister "a couple times" outside of the Saco Shaw's but never
    saw her behaving strangely.            She also never saw MacCalister with
    a   knife   inside      the   Saco   Shaw's,    nor   had   she   ever   witnessed
    MacCalister act violently or raise her voice.
    Brittani Wood worked as a Shaw's cashier beginning in
    2013.    In 2015, she worked shifts during the "late evening[] into
    the     night"    and     she   recalled       seeing   MacCalister       "[q]uite
    frequently" at Shaw's and sometimes "more than once in a day."
    Wood observed MacCalister wearing baggy pants, military clothing,
    and a backpack and with a shaved head, which Wood described as
    "strange."       She never observed MacCalister carry a weapon, appear
    angry, or "yell or lunge at another customer."                Wood had not heard
    any rumors that MacCalister shoplifted and stated that MacCalister
    always bought something when she entered the Saco Shaw's.                  In her
    interactions with MacCalister, Wood stated that MacCalister "would
    acknowledge you were talking to her; but she wouldn't really, like,
    speak."     Wood stated that MacCalister was "quiet" and "shy."                Wood
    had heard customers make comments such as "what's with her or she
    - 8 -
    seems weird" when referring to MacCalister but no customer ever
    made a report about MacCalister to Wood.
    In the weeks before Wendy Boudreau's murder, MacCalister
    had several interactions with customers at the Saco Shaw's.    These
    interactions were not reported to Shaw's except as we explicitly
    note, and even then, they were not reports made to supervisors but
    verbal comments made to a cashier.     The rest of the statements we
    describe were only made at depositions after this suit started.
    First, Debra Surran stated she went to Shaw's in June or
    July 2015 and estimated she was in the store for about forty-five
    minutes.   While shopping, Surran saw MacCalister at the end of the
    aisles she was shopping in three separate times, as if MacCalister
    were following her.   MacCalister was not going down the aisles and
    did not have a cart, which Surran thought was "a little strange."
    When Surran went to check out, she noticed that MacCalister had
    gotten in line directly behind her.       Surran stated that "Connor
    was glaring at me, like she really wanted to hurt me" and she
    looked angry and her jaw was tight.        Surran was scared so she
    grabbed a nearby cart and placed it between herself and MacCalister
    until MacCalister checked out and left the store.
    Before leaving, Surran told Michelle Lavoie, the cashier
    with whom both MacCalister and Surran checked out, that "there's
    something wrong with that girl."       Lavoie stated "no, no, Connor
    comes in here all the time.    She's fine."     Surran repeated that
    - 9 -
    "there's something wrong with her" and whispered to Lavoie that
    MacCalister scared her.4    Surran did not talk to any other Shaw's
    employee about the incident.
    Lavoie stated that she was familiar with MacCalister and
    recalled that she had seen her "occasionally from time to time" in
    the years before 2015.     Lavoie was also familiar with Surran and
    stated that she often waited on Surran at Shaw's. When asked about
    the incident, Lavoie could only recall that Surran was "not
    thrilled with Connor" based on her "interpretation of [Surran's]
    body language."   Lavoie explained that with her regular customers,
    she "can tell sometimes if they're having a good day."     She stated
    that "with my years of experience, [I think I would have] picked
    up if [Surran] was uncomfortable.       I didn't pick up on body
    language that she was on defensive."     Lavoie stated that she did
    not report the incident to a manager because "it would need
    something more than just [her] own gut instinct that there was
    something more going on."    She explained that:
    [i]f I'm not seeing anything out of the norm
    and I'm not getting anything from the customer
    . . . that there was a problem, I'm not going
    4    Surran stated in her affidavit that she "whispered to
    the cashier . . . that [she] was scared of MacCalister." But later
    at her deposition, she did not include this fact when recounting
    what happened. Counsel for Shaw's asked her if she said anything
    else to Lavoie and Surran stated, "No. That was it." Counsel for
    Shaw's confronted Surran with her affidavit and Surran stated,
    "[i]t's basically the same thing, yeah." Like the district court,
    we assume favorably to Boudreau that Surran did whisper to Lavoie
    that MacCalister scared her.
    - 10 -
    to go any further than what I normally would,
    other than to wait on her, check her out, and
    thank her for shopping with us.
    In early August 2015, Katherine Corriveau rode her bike
    to the Saco Shaw's.      She saw MacCalister sitting under a tree at
    the back entrance to the Shaw's plaza.        As Corriveau passed, she
    made eye contact with MacCalister, who was wearing sunglasses.
    She stated that she "got the willies" and her "alarm bells went
    off" because MacCalister looked "angry," had a "set jaw," and stood
    up as Corriveau passed.     As Corriveau locked up her bike, she saw
    MacCalister    walking   with   a   "determined   gait"   toward   Shaw's.
    Corriveau entered the store and about five minutes later, she saw
    MacCalister about ten feet away from her in the ice cream aisle.
    Corriveau felt as though MacCalister was following her and "feared
    for [her] safety" so she went to another aisle.           Within a short
    time, MacCalister appeared in the same aisle.       Corriveau then went
    to the produce section and again saw MacCalister.         Corriveau lost
    track of MacCalister while she finished shopping.            She went to
    check out after spending about thirty minutes at the most in the
    store and saw MacCalister ahead of her at a different register.
    MacCalister purchased a Coke and left the store.           Corriveau did
    not tell any Shaw's employee about the incident.
    About a week before the murder, Cindy Belanger, another
    Shaw's customer, noticed MacCalister while waiting in the Shaw's
    checkout line.     MacCalister was "laughing and talking" in a group
    - 11 -
    of people on the other side of the store.           Belanger stated that
    when MacCalister noticed Belanger looking at her, MacCalister
    turned her body, put her arms back, and "lunged" at Belanger
    without moving her feet while yelling "rah."          Belanger could not
    hear MacCalister well because she was "too far away."             The act
    scared Belanger and she "took it as a threat."           She stated that
    other customers saw the gesture, but that no Shaw's employee seemed
    to see it.     Belanger checked out, left the store, and did not
    report the incident to a Shaw's employee.
    3.   MacCalister's Behavior on the Day of the Attack
    On   August   19,   2015,   MacCalister    visited   Shaw's   two
    separate times.   Her first visit was around 12:00 p.m. and did not
    provide cause for concern to Shaw's.         She wore army fatigues,
    sunglasses, and a backpack, and she did not use a shopping cart.
    She checked out with Doyle and purchased a gallon of milk and a
    couple of other items.        Doyle stated that MacCalister "kind of
    gave [her] a little smirk when [she] was handing her the receipt"
    but that she "didn't think too much of it at the time." MacCalister
    left the store and sat on the ground, almost on the automatic door
    sensor, for about five minutes.       There is no evidence any Shaw's
    employee observed this behavior.
    Around 3:00 p.m., Wendy Boudreau entered Shaw's, as did
    MacCalister for the second time that day.           Two Saco EMTs, Jerry
    and Armand Beaulieu, were shopping in the store at this time.
    - 12 -
    Armand stated that he and MacCalister "passed each other in the
    same       area    a   couple   of   times."     He   did    not    "think   anything
    different" about her behavior and stated that she appeared to be
    shopping.          Jerry described MacCalister's behavior as "walking the
    back row, like she was looking for something . . . she kept going
    back and forth."          He stated that she did not look angry, just that
    "she was in a hurry, looking for something."5
    About   ten    minutes    after     3:00    p.m.,     MacCalister
    approached Wendy Boudreau, who was alone in the ice cream aisle.
    She walked up behind Wendy Boudreau and stabbed her multiple times.
    Wendy Boudreau screamed and that caught the attention of another
    customer, who pinned MacCalister to the ground.                    A Shaw's employee
    who had also gone to investigate the screams attempted to help
    Wendy Boudreau.           Wendy Boudreau was transported to a hospital but
    did not survive.
    MacCalister was arrested by the Saco Police and taken to
    the Saco Police Department.                The police interviewed her around
    5:20 p.m.         She confessed that she went to Shaw's intending to kill
    someone.          She chose Wendy Boudreau because she was "in the open
    with no one around [and] couldn't fight back."                 MacCalister stated
    5  Boudreau asserts that two individuals in the security
    footage of the minutes leading up to the attack are Shaw's
    employees. Like the district court, we assume in the plaintiff's
    favor that these two individuals were Shaw's employees and so could
    have observed what the two EMTs observed.
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    that she always carried two knives in her pockets.         There is no
    evidence that the knives were visible to a Shaw's employee before
    the attack.6
    B.    Procedural History of the Litigation
    Jeffrey Boudreau filed this lawsuit against Shaw's as
    the personal representative of Wendy Boudreau's estate in federal
    court on July 10, 2017, alleging causes of action for wrongful
    death and conscious pain and suffering under Maine law. He alleged
    that Shaw's "owed a duty of care to protect its patrons from
    foreseeable risks of harm on its premises," that Shaw's breached
    this duty by failing to "adequate[ly] monitor its premises or use
    existing security measures to protect Shaw's patrons," and that
    this breach was the proximate cause of Wendy Boudreau's death as
    well as her pain and suffering.
    Shaw's moved for summary judgment, arguing that Wendy
    Boudreau's murder was not foreseeable because Shaw's had no reason
    to   foresee   that   MacCalister   would   violently   attack   another
    customer.   Shaw's also argued that there was no evidence that even
    if Shaw's had watched MacCalister or tried to interact with her,
    as Boudreau asserted that it should have, that this would have
    6   Boudreau also relies on MacCalister's medical records,
    her history with the police, and observations of her behavior
    outside of the Saco Shaw's to support his argument.         As the
    district court correctly stated, there is no evidence in the record
    that Shaw's knew about these facts, or that Shaw's should have
    known any of this information.
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    prevented the attack.
    The   district    court,    in   a   detailed   analysis   of   the
    undisputed facts, entered summary judgment for Shaw's, holding
    that Shaw's did not owe a duty to Wendy Boudreau under Maine law
    because it was not reasonably foreseeable that MacCalister was a
    danger to other customers.      See Boudreau, 
    2019 WL 3242051
    , at *1.
    The district court explained that despite MacCalister's various
    interactions with Shaw's employees and customers, she had never
    been violent at Shaw's and had never displayed her knives at
    Shaw's.    Id. at *12.      Further, Shaw's had no knowledge, nor any
    ability to learn, of MacCalister's behavior outside of Shaw's.
    Id.   Concluding there was no duty under Maine law, the district
    court did not reach the issue of proximate cause.            Id. at *14-15.
    Boudreau timely appealed.
    II.
    We review the district court's grant of summary judgment
    de novo.   River Farm Realty Tr. v. Farm Family Cas. Ins. Co., 
    943 F.3d 27
    , 36 (1st Cir. 2019).          Summary judgment should be granted
    when "the movant shows that there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter
    of law."    Fed. R. Civ. P. 56(a).          As a federal court sitting in
    diversity, we apply Maine substantive law.           See River Farm Realty
    Tr., 943 F.3d at 36.
    - 15 -
    A.   Shaw's Did Not Owe a Duty to Protect Wendy Boudreau from
    MacCalister
    Boudreau argues that the district court erred in holding
    that Shaw's did not owe a duty to protect Wendy Boudreau from harm
    from MacCalister.   He asserts that he is entitled to a jury trial
    on this issue, arguing that it is a question of fact.   He further
    contends that it was foreseeable that MacCalister would harm
    another customer, "if only Shaw's had been paying attention."
    Finally, he relies on Shaw's' purported violation of its own loss
    prevention policies to argue that Shaw's owed, and breached, a
    duty to Wendy Boudreau.     We address each argument in turn and
    conclude that each fails.
    First, Boudreau's argument that he is entitled to a jury
    trial on the issue of duty fails.   "Even though the issue is fact
    driven, the question of duty is a legal question decided by the
    court, not the jury."   Brown v. Delta Tau Delta, 
    118 A.3d 789
    , 791
    (Me. 2015).   Boudreau confuses the issue of whether Shaw's owed
    Wendy Boudreau the duty alleged with whether, assuming such a duty
    existed, Shaw's breached that duty.     The issue of breach is a
    question of fact, Lewis v. Knowlton, 
    688 A.2d 912
    , 914 (Me. 1997),
    but whether a duty exists in the first place is a question of law
    that we may resolve at summary judgment, see Denman v. Peoples
    Heritage Bank, Inc., 
    704 A.2d 411
    , 413 (Me. 1998) (affirming no
    duty holding on summary judgment in premises liability case).
    - 16 -
    We turn to Boudreau's primary argument on appeal: that
    Shaw's owed Wendy Boudreau a duty because MacCalister's attack was
    foreseeable.     Under Maine law, for "[a] proprietor of an inn,
    hotel, motel, restaurant, or similar establishment [to be] liable
    for an assault upon a guest or patron by another guest, patron, or
    third person," the proprietor must "[have] reason to anticipate
    such assault."    Kaechele v. Kenyon Oil Co., 
    747 A.2d 167
    , 170 (Me.
    2000) (quoting Brewer v. Roosevelt Motor Lodge, 
    295 A.2d 647
    , 651
    (Me. 1972)).     "A proprietor must guard its patrons against not
    only known dangers but also those which it 'should reasonably
    anticipate.'"    Id. at 171 (quoting Brewer, 
    295 A.2d at 651
    ).           The
    defendant need not be able to foresee "the exact nature of the
    injury which in fact occurred . . . if some harm was reasonably
    foreseeable under the circumstances."          Schultz v. Gould Acad., 
    332 A.2d 368
    , 370 (Me. 1975).       So, the question here is whether Shaw's
    "[knew], or should . . . have anticipated, that [MacCalister]
    would assault a patron on the evening in question."           Kaechele, 
    747 A.2d at 171
    .
    We    agree    with   the    district   court's   conclusion   that
    Maine's law of premises liability is clear that the harm must have
    been foreseeable.       Because we conclude that MacCalister's attack
    was not foreseeable, we need not address the policy element of
    Maine's duty analysis.      See Brown, 118 A.3d at 792 (stating that
    - 17 -
    the duty analysis "is a multi-factored analysis that necessarily
    evokes policy-based considerations").
    Kaechele       does      not    support    Boudreau's      argument        that
    MacCalister's       attack      on    Wendy    Boudreau       was   foreseeable.         In
    Kaechele, the plaintiff presented evidence to show that his assault
    by another customer of the same convenience store was foreseeable.
    Kaechele, 
    747 A.2d at 169
    .                 Before the assault, store employees
    observed the attacker yell obscenities for fifteen minutes, slam
    the store door, and pound on the store window.                            
    Id.
         Another
    individual in the store suggested the police be called but no call
    was made.     
    Id.
            The Maine Supreme Judicial Court concluded that
    these     facts     sufficiently           established     that     the    attack       was
    foreseeable.       
    Id. at 173
    .
    There is no such evidence here.                    Shaw's first observed
    MacCalister in early 2010 or 2011, more than four years before the
    murder.     In May 2011, two customers complained about MacCalister
    because she was standing outside of the Saco Shaw's smoking
    discarded cigarettes.           Shaw's promptly called the police and had
    MacCalister removed from the store premises.                        The police barred
    MacCalister       from    the     Shaw's      and   told   Shaw's     that      they    had
    interacted with her before but provided no further details.
    During MacCalister's ban, Shaw's employees called the
    Saco police to enforce the ban against her.                         After MacCalister
    returned    from    the     ban      in    2012,    DeRoche    requested        that   Loss
    - 18 -
    Prevention     watch   MacCalister     to     ensure   that    she   was    not
    shoplifting.      McCourt observed MacCalister four or five times
    between 2012 and 2014 and never observed her acting strangely or
    shoplifting.     Other employees had also heard rumors MacCalister
    shoplifted but they never saw her shoplifting either.
    Between   2010   and    2015,    Shaw's   employees     observed
    MacCalister in the Saco Shaw's wearing baggy, black or camouflage
    clothing and with a shaved head.             She rarely spoke to them and
    they described her as "weird," "strange," "quiet," and "shy."
    Schaffer recalled that MacCalister sometimes exhibited "big" eyes.
    She thought that MacCalister's appearance and demeanor might make
    some people feel "threatened" but she had only felt "uncomfortable"
    or "awkward."      In 2015, Wood had heard customers make comments
    such as "what's with her" and "she seems weird."              In June or July
    2015,   Surran     told   Lavoie      that     "something's      wrong     with
    [MacCalister]" and that she was scared of MacCalister.
    On the day of the murder, August 19, 2015, MacCalister
    entered Shaw's twice. The first time, she purchased several items,
    gave Doyle a "smirk" while checking out, and then sat for five
    minutes nearly on the automatic door sensor.           She then returned to
    Shaw's three hours later and walked back and forth in the aisles.
    These facts did not make it foreseeable that MacCalister
    posed a danger to other customers.            As to the smoking incident,
    Shaw's acted promptly in seeking police help to deal with the
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    situation.    Further, this incident occurred four years before the
    murder and there was no intervening concerning behavior from
    MacCalister between that incident and the summer of 2015.
    The only other information provided to Shaw's about
    MacCalister by a customer was Surran's statement to Lavoie, a
    cashier,   in    June    or    July   2015.      Surran   told    Lavoie   that
    "something's wrong" with MacCalister and that MacCalister scared
    her.   But      Surran   did   not    report   MacCalister's     actions   to   a
    supervisor, she did not request that the store do anything about
    the incident, and she did not provide Lavoie with any particulars
    about what MacCalister had done.          People are scared of many things
    short of violent physical attacks.             Further, Lavoie was familiar
    with both Surran and MacCalister and explained that based on her
    experience as a cashier, she would have picked up on the fact that
    a customer was uncomfortable or defensive.            But here she did not.
    These facts did not make MacCalister's attack foreseeable.
    Indeed, no Shaw's employee ever saw MacCalister act
    violently, raise her voice, or threaten someone in the Saco Shaw's.
    Nor was Shaw's aware of MacCalister's behavior outside of Shaw's.
    The fact that MacCalister's appearance was perceived as "strange,"
    that Schaffer felt "awkward" or "uncomfortable" around her, and
    that MacCalister rarely responded when spoken to did not make her
    violent attack on another customer foreseeable.                Weird clothing
    and affect were not uncommon among the store's many customers.
    - 20 -
    As to shoplifting, Shaw's investigated and saw none, so
    shoplifting provides no basis for any theory that violent behavior
    is associated with shoplifting.       And since there was no evidence
    of shoplifting, that provides no basis for any theory of an
    obligation to do continuous surveillance.
    MacCalister's actions on the day of the murder also do
    not establish that it was foreseeable that she was a danger to
    other customers.      The fact that she gave a "smirk" to the cashier
    and sat in a strange place for five minutes before leaving does
    not forecast a violent attack.      Further, walking back and forth is
    not out of the ordinary in a grocery store.
    Even   assuming   favorably   to   Boudreau    that   a   Shaw's
    employee should have observed the incidents involving Corriveau
    and Belanger, neither made it foreseeable that MacCalister was a
    danger to other customers.        As to the incident with Corriveau,
    MacCalister did not threaten, or even speak, to Corriveau.              To a
    reasonable    observer,    MacCalister     would   have    appeared    to   be
    shopping the Saco Shaw's by walking across the store from the ice
    cream aisle to the produce section.             As to the incident with
    Belanger, even if Belanger considered the "lunge" to be a threat,
    MacCalister was across the entire store and did not get any closer
    to Belanger.        These facts do not make the violent assault of
    - 21 -
    another customer foreseeable.7
    Boudreau seems to argue further that Shaw's' internal
    policies and procedures for deterring shoplifting gave rise to a
    legal duty to abide by those policies, and that the store's alleged
    failure to do so constituted a breach of duty.   He highlights the
    fact that the store's Loss Prevention Specialist Manual instructs
    associates to watch individuals wearing baggy clothing or clothing
    that is inappropriate for the weather, individuals who carry
    backpacks, those who do not have hand baskets or carriages, and
    those who linger in the store, even if the suspected shoplifter is
    never seen shoplifting.   The policy advises associates to "[g]reet
    customers" and "[o]ffer assistance to customers" in order to deter
    shoplifting.   Boudreau emphasizes that the manual states that
    7    Boudreau analogizes his case to Mu v. Omni Hotels
    Management Corp., 
    882 F.3d 1
     (1st Cir. 2018). But not only does
    that case apply Rhode Island law, it does not support his theory.
    Id. at 5. In Mu, the court reversed a grant of summary judgment
    to the defendant-hotel, concluding that a jury could find that the
    plaintiff's harm, which was caused by an angry mob on the hotel's
    premises, was foreseeable. Id. at 9-12. The court pointed out
    that prior to the attack, the mob had been thrown out of the hotel
    for causing a disturbance, returned to the hotel the same night,
    fought among themselves, and then attempted to fight a passerby by
    yelling racial slurs, all of which was observed by hotel employees.
    Id. at 9-10. Here, MacCalister was never seen acting violently or
    attempting to start a fight and was banned from the Saco Shaw's
    four years earlier, in contrast to Mu where the attackers were
    banned the night of the attack. Id. at 4. Gould v. Taco Bell,
    
    722 P.2d 511
     (Kan. 1986), is similarly distinguishable because the
    attacker, a patron of Taco Bell who attacked another customer, had
    been involved in a similar altercation two weeks earlier. Id. at
    514.
    - 22 -
    shoplifters       can       "create        a    serious    risk      for    customers      and
    associates" and "[s]hoplifters may be armed, under the influence
    of drugs, violent or pose other risks."
    Boudreau's reliance on Shaw's' purported violation of
    its own loss prevention policies is misplaced.                        He has provided no
    authority       for        the     proposition          that   the     store's     internal
    shoplifting policies created a duty under Maine law that the store
    must watch every customer suspected of shoplifting to ensure that
    they do not violently attack other customers.                         Maine law is clear
    that for a duty to be imposed, the harm must be foreseeable, and
    here it was not.            Further, Shaw's did watch MacCalister and there
    is   no   basis       to    think     that       any    deviations     from    the     policy
    foreseeably would cause harm to customers.8
    B.    The District Court Did Not Err in How It Viewed the Facts
    Boudreau      separately          argues    that      the    district    court
    failed    to    resolve          genuine       disputes   of   fact    in    his   favor   by
    disregarding the following facts: that "police specifically told
    . . . DeRoche they had a history with" MacCalister, that "employees
    of Shaw's called the Saco PD to report they were concerned about
    [MacCalister] being in the store," that DeRoche's "scary movie"
    comment could mean that he believed MacCalister had a propensity
    8   As the district court stated, Shaw's' loss prevention
    policies may be relevant to causation. But as Shaw's did not owe
    a duty here, we need not reach this issue.
    - 23 -
    for violence, that Schaffer stated some customers felt threatened
    by MacCalister's demeanor, and that Surran may have told a Shaw's
    cashier that she was "stalked" by MacCalister.
    This argument fails.   The district court was required to
    take the record in the light most favorable to Boudreau but that
    does not mean that it was required to draw inferences that lacked
    factual support.   Each fact that Boudreau has singled out as being
    inappropriately resolved in the defendant's favor was accurately
    recounted by the district court and based on the record.
    First, as to what the police told DeRoche, the district
    court correctly recounted that DeRoche stated that the police did
    not say "anything specific at all" to him about MacCalister.     As
    to the phone calls involving the Saco police, the district court
    appropriately disregarded the calls that were too broad to be tied
    to MacCalister and did consider the police dispatcher's statements
    about the two calls made by Shaw's.      Next, in making the "scary
    movie" comment, DeRoche made no reference to violence.     So, the
    district court did not err by stating that no one at Shaw's stated
    that they believed MacCalister was violent.   Further, the district
    court did not "overlook" Schaffer's comment but rather accurately
    described how she thought some people "probably felt threatened"
    by MacCalister's demeanor and appearance.     Finally, the district
    court correctly stated that there was no evidence that Surran told
    Lavoie that MacCalister "stalked" her.
    - 24 -
    C.     Evidentiary Issues
    1.       The Plaintiff's Expert Witness
    Boudreau argues that "it was reversible error for the
    district court to overlook the expert witness opinion of Stephen
    Melia on summary judgment."              He asserts that the district court
    erroneously "drew its own conclusions about [Shaw's'] obligations
    in the field of loss prevention and retail security."9
    Boudreau mischaracterizes the district court's treatment
    of Melia's expert opinion.              The district court did not draw its
    own conclusions about the field of retail security but rather
    explained that Melia's opinion about Shaw's' purported breach of
    retail security protocols was not relevant to the duty analysis
    under      Maine      law.     As   said,   there   is   no     authority   for    the
    proposition that a store's own loss prevention policies give rise
    to a duty absent foreseeability.
    Boudreau also asserts that "Melia testified that Shaw's
    owed       a   duty    to    prevent   [MacCalister]     from    causing    harm   to
    customers" and that the district court should have accepted this
    conclusion.           It is not clear that Melia's opinion makes such a
    claim, as its primary focus seems to be that Shaw's violated
    standard retail security procedures, not that such procedures
    9  We assume that the evidence considered at summary
    judgment was admissible as it does not change our conclusion that
    Shaw's did not owe Wendy Boudreau a duty.
    - 25 -
    created a legal duty under Maine law.                But even if Melia's opinion
    makes such a claim, Boudreau's argument would fail because the
    presence of duty is a legal question to be resolved by the court,
    not an expert.          Nieves-Villanueva v. Soto-Rivera, 
    133 F.3d 92
    , 99
    (1st Cir. 1997).
    2.      Spoliation
    At the district court, Boudreau moved for sanctions
    against       Shaw's     for   spoliation    of    evidence   consisting    of   the
    security camera footage from the store for the weeks leading up to
    the murder.10          He sought "a permissive negative inference, both on
    summary judgment and before the jury" about the contents of the
    footage.       The district court applied Rule 37(e), which states that
    "upon        finding    prejudice    to    another    party   from   loss   of    the
    information,       [the     court]   may    order    measures   no   greater     than
    necessary to cure the prejudice."              Fed. R. Civ. P. 37(e)(1).         The
    district court was "doubtful there [was] any prejudice" because
    "[a]t most, the missing video might [have] provide[d] images of
    what certain customers say they observed about MacCalister at
    Shaw's before the day of the murder."                The court then stated that
    it would "assume that MacCalister was in the store virtually every
    day, and that she always dressed the same way and exhibited the
    10
    The parties learned of the footage's existence after the
    2018 deposition of McCourt. When McCourt was asked to retrieve
    the footage, it could not be located.
    - 26 -
    same mien . . . [and] that she had encounters with customers as
    they describe[d] the encounters" and that this would "cure[] any
    prejudice."
    We review the district court's denial of sanctions for
    abuse of discretion.                 See Sharp v. Hylas Yachts, LLC, 
    872 F.3d 31
    ,
    41-42 (1st Cir. 2017).                 We see none.      The district court followed
    the    guidance           in   the    advisory    committee       notes    for   assessing
    prejudice and evaluated the missing video's importance to the
    litigation by concluding that at most, it "might provide images of
    what     certain          customers     say   they     observed    about   MacCalister."
    Further, as the district court stated, even if the video showed
    what Boudreau argues it could have shown, summary judgment still
    would        have    been      appropriate      because    the     incidents     involving
    Corriveau           and     Belanger      did    not    make      MacCalister's     attack
    foreseeable, even if they had been observed by Shaw's employees.11
    Affirmed.
    11Boudreau asserts that the video would show "who was
    telling the truth" in the interaction between Surran and Lavoie.
    This argument is meritless because the statements of Surran and
    Lavoie are not contradictory.
    - 27 -