Roddey v. Wal-Mart Stores East, LP , 400 S.C. 59 ( 2012 )

FEW, C.J.

Alice Hancock died in an automobile crash as she drove away from the Wal-Mart in Lancaster. She was being chased by Derrick Jones, an employee of U.S. Security Associates, Inc., which provided security in the Wal-Mart parking lot pursuant to a contract with Wal-Mart. Wal-Mart management had advised Jones that a passenger in Hancock’s vehicle attempted to steal merchandise from the store, and they instructed him to get the vehicle’s license tag number. At trial, the court directed a verdict for Wal-Mart, and the jury returned a defense verdict on the claims against Jones and U.S. Security. Hancock’s estate appeals the decision to direct a verdict in favor of Wal-Mart. We affirm.

I. Facts and Procedural History

On the night of June 20, 2006, Hancock drove to Wal-Mart with her sister, Donna Beckham. Hancock entered the store with Beckham but later returned to her vehicle in the parking lot. While Hancock waited in the car, Beckham attempted to shoplift several items from the store by placing them in plastic bags. As Beckham testified at trial, “I then went and got a bag and went and put some pants into the bag[.] I shouldn’t have done it.” ¹

Hope Rollings, one of the store’s customer service managers, saw Beckham do this. Rollings alerted fellow manager Shaun Cox and several other employees that Beckham was attempting to steal merchandise. Rollings then walked outside to speak with Jones, who was on duty in his company truck. As Rollings and Jones spoke, Cox used a handheld radio to tell them that Beckham was headed towards one of the exits. Rollings went back inside, and Jones drove to the exit. Jones testified he asked over the radio what he should do, as he did not have the authority to detain Beckham. He was told to “try to delay her. Try to talk to her until we can get out there.”

As Beckham approached the exit with the bags of merchandise, a Wal-Mart greeter asked to see her receipt. Beckham told the greeter Hancock had the receipt in the car. She testified, “I told her that my sister had it but that was a lie.” Beckham then put down the bags and walked out of the store. Jones saw Beckham and spoke to her briefly. Beckham testified Jones screamed at her. Beckham began running towards Hancock’s car. Jones followed her in his truck but did not physically detain her. Hancock saw Beckham, pulled out of her parking space, and drove down a lane of the parking lot towards Beckham. Jones drove into the lane, blocking Hancock’s vehicle. While Hancock’s car was still moving, Beckham jumped into the back seat.² As Beckham later testified, she told Hancock to “get them the hell out of here.” Hancock put her car in reverse, backed up at a high speed, struck a median in the parking lot, turned around, and drove towards the exit of the parking lot. Jones followed behind her.

As these events unfolded, Cox walked to the main entrance of the store and radioed to Jones, “Get her tag number.” According to Jones, he received instructions over the radio from Cox and Rollings to get the license tag information from Hancock’s vehicle. Jones testified, “And I’m on the walkietalkie, telling them, I can’t see this license plate tag number, and they’re about to leave the parking lot.” A Wal-Mart employee replied, “Man, well, you got to do what you got to do. You need to get that license plate number.” These instructions by Wal-Mart personnel violated Wal-Mart’s policy for investigating and detaining suspected shoplifters, which provided: As Hancock left the parking lot and drove onto a highway, she ran a stop sign and a stop light, nearly getting into an accident. In violation of his training and U.S. Security policy, Jones left the parking lot and pursued Hancock and Beckham onto the highway. According to Jones, Hancock drove up an onramp, “almost slamm[ing] into the back of another lady’s car” and missing it by swerving to the left. Jones testified he lost Hancock and Beckham at that point, and he did not find them again until he saw her vehicle’s hazard lights flashing off of the side of the road. However, Beckham testified Jones stayed close behind them. Crouching in the back seat, she periodically looked up over the seat and saw Jones driving “on [their] bumper” and flashing the high-beams on his truck. After about two miles, Hancock told Beckham “he’s still on our ass,” and then Beckham heard and felt a bump. Hancock’s car left the road and crashed. Hancock died at the scene.

NEVER pursue a fleeing Suspect more than approximately 10 feet beyond the point you are located when the Suspect begins to run to avoid detention. Ten feet is about three long steps. This limitation applies both inside and outside the facility.

NEVER pursue a Suspect who is in a moving vehicle.

NEVER pursue a Suspect off the Facility’s property.

NEVER use a moving vehicle to pursue a Suspect.

TERMINATE the pursuit of a Suspect, if the Suspect begins to enter a vehicle.

LET THE SUSPECT GO, rather than continue a pursuit that is likely to injure or cause harm to someone.

Travis Roddey, the personal representative of Hancock’s estate, sued Wal-Mart, U.S. Security, and Jones for negligence. At trial, the court granted Wal-Mart’s motion for a directed verdict. The jury found Hancock was 65% at fault and U.S. Security and Jones were 35% at fault. Roddey filed a motion under Rule 59(e), SCRCP, seeking a new trial as to all defendants on the basis that the court erred in directing a verdict for Wal-Mart. The court denied the motion.

II. How the Panel Votes to Affirm

Wal-Mart asserted three grounds for its directed verdict motion: (1) Roddey presented no evidence Wal-Mart breached its duty of care; (2) Wal-Mart’s actions were not the proximate cause of Hancock’s death as a matter of law because Jones’ and Hancock’s actions were not foreseeable; and (3) Hancock’s fault in causing her own death was more than 50% as a matter of law. The trial court granted the motion on the first two grounds, stating “I ... find that there is insufficient evidence that Wal-Mart was negligent, or even if [it was] there is a lack of proximate cause [in] that the events were not foreseeable.” As to the third ground, the court stated it was “[un]able to find as a matter of law that Hancock was more than 50 percent [at fault].”

Judge Huff and I believe the trial court erred in finding there was insufficient evidence of Wal-Mart’s negligence and in finding Jones’ and Hancock’s actions were not foreseeable. However, I vote to affirm because I believe Hancock was more than 50% at fault. As Judge Short explains in his concurring opinion, he votes to affirm because he believes the trial court correctly found no proximate cause as a matter of law. As Judge Huff explains in his dissent, he would reverse and remand for a new trial as to Wal-Mart.

III. Evidence of Wal-Mart’s Negligence

Cox and Rollings’ instructions that Jones get the tag number of Hancock’s vehicle, including the command “do what you got to do,” violated the Wal-Mart policy designed to prevent injuries and deaths caused by fleeing suspects. A defendant’s violation of its own safety policies is some evidence of negligence. See Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 140, 638 S.E.2d 650, 659 (2006) (stating a defendant’s standard of care in a negligence action “may be established and defined by ... a defendant’s own policies and guidelines”); Peterson v. Nat’l R.R. Passenger Corp., 365 S.C. 391, 397, 618 S.E.2d 903, 906 (2005) (holding “evidence of [a defendant’s] deviation from their internal maintenance policies is admissible to show the element of the breach”); Tidwell v. Columbia Ry., Gas & Elec. Co., 109 S.C. 34, 35, 95 S.E. 109, 109 (1918) (stating “violation [of a defendant’s rules] was evidence tending to show negligence”); Caldwell v. K-Mart Corp., 306 S.C. 27, 31, 410 S.E.2d 21, 24 (Ct.App.1991) (stating a jury may consider violations of internal policies or self-imposed rules as evidence of negligence). Therefore, the trial court should not have directed a verdict on the basis that there was insufficient evidence of negligence.

IY. Foreseeability of Hancock’s Actions

The purpose of Wal-Mart’s policy is to prevent injury or death resulting from negligent or reckless driving in pursuit of a suspect. The policy states: “LET THE SUSPECT GO, rather than continue a pursuit that is likely to injure or cause harm to someone.... Remember to put people first. Protecting the physical well-being of Suspects ... is your first priority.” Similar instructions and reminders to “put people first” appear throughout the policy. The danger sought to be prevented by this policy arises from the anticipated negligent or reckless driving of the pursuer and the pursued. Therefore, the danger that a fleeing suspect or the security officer chasing her might drive negligently or recklessly and injure the suspect or someone else is not simply foreseeable — it is the very reason Wal-Mart adopted the policy in the first place. I disagree that Jones’ and Hancock’s actions were not foreseeable to Wal-Mart.

V. Hancock’s Fault

There are two reasons this court should hold that Hancock was more than 50% at fault and on that basis affirm the directed verdict in favor of Wal-Mart. First, the jury’s factual determination of how fault should be apportioned between Hancock, Jones, and U.S. Security is binding on Roddey even though Wal-Mart’s actions were not included in the jury’s analysis. Second, the trial court should have directed a verdict for Wal-Mart on the ground that Hancock was more than 50% at fault as a matter of law.

a. Effect of the Jury’s Apportionment of Fault

In his post-trial motion, Roddey stated his theory of the case is that the “car accident was due less to the decedent’s actions and more to (1) Wal-Mart’s decision to encourage Derrick Jones to chase the decedent by vehicle, and (2) Jones’ actions during the chase — flashing his lights and driving on the decedent’s bumper.” The specific allegations in Roddey’s complaint were that Wal-Mart was liable in three ways: (1) it was vicariously liable for Jones’ actions; (2) it failed to properly supervise Jones; and (3) it “improperly advised or instructed” Jones to follow Hancock and obtain her license tag information.³ None of these allegations can possibly result in liability against Wal-Mart, now that the jury has found Hancock to be 65% at fault in the accident.

With respect to the first allegation, Roddey claims Jones was Wal-Mart’s agent, and therefore Wal-Mart is vicariously liable for his conduct. Roddey’s right to recover from Wal-Mart under this claim depends entirely on whether Jones was liable. In other words, because Wal-Mart’s liability is derivative of Jones’ liability, the jury’s finding that Jones was only 35% at fault forecloses the liability of Wal-Mart.

Roddey’s other two allegations involve acts and omissions by Wal-Mart. Roddey argues that because the jury apportioned fault only between Hancock, Jones, and U.S. Security, Wal-Mart’s conduct, if considered by the jury, could have reduced Hancock’s proportion of fault to the point that her negligence was not greater than that of all the defendants. See Nelson v. Concrete Supply Co., 303 S.C. 243, 245, 399 S.E.2d 783, 784 (1991) (“If there is more than one defendant, the plaintiffs negligence shall be compared to the combined negligence of all defendants.”). In many cases involving multiple tortfeasors, the negligence of a tortfeasor absent from the case could affect the relative fault of the plaintiff. In this case, however, Wal-Mart’s conduct cannot reduce Hancock’s proportion of fault.

The jury’s comparison of fault necessarily involved an examination of the actions taken by the two participants in the chase — Hancock and Jones — and a determination of how their actions contributed to Hancock’s death. Evidence was presented that Hancock drove through the parking lot towards Beckham as she ran from the store, did not stop the car as Beckham jumped into it, backed up in the parking lot at a high rate of speed, hit a concrete median, ran a stop sign and a stop light as she turned onto a public highway, swerved through traffic, and narrowly avoided two collisions with other cars.⁴ There was also evidence that Jones blocked Hancock’s car, pursued her through the parking lot, left his assigned area, followed Hancock’s car onto the highway, drove “on [the] bumper” of Hancock’s car on the highway, flashed his headlights, and possibly made contact with Hancock’s car. Whatever Jones’ and Hancock’s motivation may have been for taking those actions, it was the actions themselves that proximately caused the crash that killed Hancock. The jury already considered all of those actions, and it determined Hancock’s actions made her 65% at fault.

Even under Roddey’s theory of the case, Wal-Mart’s conduct merely provides some explanation of what motivated Jones’ actions. Wal-Mart’s negligence could affect how much of the remaining 35% of fault is attributable to Jones, for if Jones was motivated by Wal-Mart’s improper actions, arguably he would bear less of the fault for Hancock’s death. However, Wal-Mart’s actions can have no effect on Hancock’s fault. Wal-Mart obviously did not advise or instruct Hancock to flee, nor did it enable her actions by failing to adequately supervise her. There is no evidence in the record that Hancock knew anything about what Wal-Mart told Jones. Therefore, Wal-Mart’s alleged conduct could not have reduced Hancock’s proportion of fault in the way it could have reduced that of Jones. Even if the jury had been permitted to consider Wal-Mart in its apportionment of fault, Wal-Mart’s conduct could not have affected the jury’s determination that Hancock was 65% at fault.

Because Wal-Mart’s conduct could not have reduced Hancock’s fault, Roddey is bound by the jury’s finding that she was 65% at fault, and the trial court’s decision to grant WalMart a directed verdict could not have prejudiced Roddey. Therefore, I believe we must affirm. See O’Neal v. Carolina Farm Supply of Johnston, Inc., 279 S.C. 490, 497, 309 S.E.2d 776, 780 (Ct.App.1983) (affirming directed verdict without deciding whether trial court erred because jury’s verdict made error harmless).

b. Hancock’s Fault as a Matter of Law

I would also affirm on the basis that no reasonable jury could have concluded Hancock was 50% or less at fault. See Erickson v. Jones Street Publishers, L.L.C., 368 S.C. 444, 463, 629 S.E.2d 653, 663 (2006) (“The appellate court must determine whether a verdict for a party opposing the motion would be reasonably possible under the facts as liberally construed in his favor.”); Bloom v. Ravoira, 339 S.C. 417, 422, 529 S.E.2d 710, 712-13 (2000) (stating a plaintiff in a negligence action “may only recover damages if his own negligence is not greater than that of the defendant”). Beckham testified Hancock “had no idea I was going in there to steal.” However, the evidence is overwhelming that once Beckham “jumped” into the back seat of Hancock’s moving car, Hancock was aware that she was fleeing a crime scene. Rather than testifying Hancock did not know they were fleeing the WalMart, Beckham testified she commanded Hancock to “get them the hell out of here.” Viewing all the evidence in the light most favorable to Roddey, no reasonable jury could have concluded Hancock’s fault was not greater than the fault of the defendants, even including Wal-Mart. See Bloom, 339 S.C. at 424, 529 S.E.2d at 714 (“Any factual issues which might exist as to Ravoira’s fault in this accident cannot alter the inescapable conclusion that, as a matter of law, Bloom’s fault exceeded fifty percent.”). Therefore, even though the trial court did not grant the motion for directed verdict on this basis, I would affirm. See Rule 220(c), SCACR (“The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal.”).

VI. Conclusion

The trial court’s decision to direct a verdict in favor of WalMart is AFFIRMED.

SHORT, J., concurs in a separate opinion. HUFF, J., dissents in a separate opinion. SHORT, J., concurring in a separate opinion.

I agree the trial court’s order should be affirmed. I write separately because I would decline to rule on whether WalMart breached its duty to Hancock and whether Hancock was more than 50% at fault. Rather, I affirm because even when viewing the evidence in the light most favorable to Roddey, I find Wal-Mart was entitled to a directed verdict on the proximate cause element of Roddey’s negligence action based on the unforeseeability of Jones’ actions. See Thomasko v. Poole, 349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002) (explaining that in reviewing a motion for directed verdict, the evidence is viewed in the light most favorable to the non-moving party). Wal-Mart argued:

This event ... is about as classically unforeseeable as any event in the history of the law and there was simply no way for anyone to foresee that Derrick Jones would pursue Ms. Hancock off of the premises of Wal-Mart in a high speed pursuit just because he was asked to get a license tag on the premises. So on the grounds that no negligence on the part of Wal-Mart, secondly on the ground that no negligence of Wal-Mart was the proximate cause, we would ask that the Court grant our motion for directed verdict as to WalMart. .. .

The trial court ruled: “I do find that there is insufficient evidence that Wal-Mart was negligent, or even if they were[,] there is lack of proximate cause that the events were not foreseeable.... ”

I agree with the trial court that Wal-Mart was entitled to directed verdict based on proximate cause. I conclude Roddey failed to establish legal cause sufficient to submit the question to the jury. “Proximate cause requires proof of both causation in fact and legal cause.” Small v. Pioneer Mach., Inc., 329 S.C. 448, 463, 494 S.E.2d 835, 842 (Ct.App.1997). “Legal cause is proved by establishing foreseeability.” Id. The test of foreseeability is whether the injury is the natural and probable consequence of the alleged negligent act. Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994). “Where the injury complained of is not reasonably foreseeable there is no liability.” Crolley v. Hutchins, 300 S.C. 355, 357, 387 S.E.2d 716, 717 (Ct.App.1989). Where intervening acts occur, the original wrongdoer may be liable despite intervening acts if the intervening acts are foreseeable, or if not foreseeable, if the original wrongdoer’s acts “ ‘would have caused the loss in natural course.’ ” Young v. Tide Craft, Inc., 270 S.C. 453, 463, 242 S.E.2d 671, 676 (1978) (quoting Benford v. Berkeley Heating Co., 258 S.C. 357, 365, 188 S.E.2d 841 (1972)).

I agree with the learned trial court that it was not foreseeable to Wal-Mart that Jones would leave the parking lot and continue pursuit for several miles while flashing his high-beams and aggressively following Hancock as she ran a stop sign and a stop light and drove onto a highway. I would affirm the trial court’s finding that Wal-Mart was entitled to directed verdict based on the lack of foreseeability of Jones’ actions. See Stone v. Bethea, 251 S.C. 157, 161-62, 161 S.E.2d 171, 173 (1968) (“One is not charged with foreseeing that which is unpredictable or that which could not be expected to happen. When the [original wrongdoer’s] negligence appears merely to have brought about a condition of affairs, or a situation in which another and entirely independent and efficient- agency intervenes to cause the injury, the latter is to be deemed the direct or proximate cause, and the former only the indirect or remote cause.”); Dixon v. Besco Eng’g, Inc., 320 S.C. 174, 180, 463 S.E.2d 636, 640 (Ct.App.1995) (“For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.”).

1 . Beckham also testified:

Q: And you elected not to leave with [Hancock] because you were attempting to take clothing from the store, correct?

A: Couple of pair of jeans, yes.

Q: There's no question, Ms. Beckham, you had absolutely no intention of paying for the clothing items that night, did you?

A: No, sir.

2 . The word “jump” comes from the testimony of Roddey’s expert Jeffrey Albert, who used the word to describe what he observed in the video of Beckham leaving the Wal-Mart and entering Hancock's car.

3 . The complaint is not in the record on appeal. Roddey described his allegations in one of his briefs to this court.

4 . Because I am explaining evidence the jury considered in its apportionment of fault, I do not view the evidence described in this sentence in the light most favorable to Roddey. In all other portions of the opinion, I have described the evidence in the light most favorable to Roddey.