Roddey v. Wal-Mart Stores

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Travis A. Roddey, as the Personal Representative of the
Estate of Alice Monique Beckham Hancock, deceased,
Petitioner,
v.
Wal-Mart Stores East, LP, U.S. Security Associates, Inc.,
and Derrick L. Jones, Respondents.
Appellate Case No. 2012-213375
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Lancaster County
Brooks P. Goldsmith, Circuit Court Judge
Opinion No. 27615
Heard October 8, 2015 – Filed March 30, 2016
REVERSED AND REMANDED
John S. Nichols and Blake Alexander Hewitt, both of
Bluestein Nichols Thompson & Delgado, LLC, of
Columbia; S. Randall Hood and William Angus
McKinnon, both of McGowan Hood & Felder, LLC, of
Rock Hill; and Brent Paul Stewart, of Stewart Law
Offices, LLC, of Rock Hill, for Petitioner.
W. Howard Boyd, Jr., and Stephanie G. Flynn, both of
Gallivan, White & Boyd, PA, of Greenville, for
Respondents.
ACTING JUSTICE TOAL: Petitioner appeals the court of appeals' decision
affirming the trial court's grant of Wal-Mart's motion for a directed verdict on
Petitioner's negligence claim. We reverse and remand for a new trial.
FACTUAL/PROCEDURAL BACKGROUND
The following facts are undisputed. On June 20, 2006, Alice Hancock
waited in her vehicle in the parking lot of Wal-Mart while her sister, Donna
Beckham, attempted to shoplift several articles of clothing.1 Hope Rollings, a
Wal-Mart customer service manager, noticed Beckham attempting to shoplift and
alerted several other employees, including fellow manager Shawn Cox and the on-
duty security guard Derrick Jones of U.S. Security Associates, Inc. (USSA), which
provided security in the Wal-Mart parking lot pursuant to a contract with Wal-
Mart.
Ultimately, Beckham exited Wal-Mart without the clothing. However,
Jones approached her in the parking lot. Beckham ran towards Hancock's vehicle,
and Jones followed her in his truck and blocked Hancock's vehicle with his truck.
After Beckham entered Hancock's vehicle, Hancock turned the vehicle around and
drove towards the parking lot's exit, with Jones following. Hancock exited the
parking lot onto a highway, and Jones followed. Approximately two miles from
Wal-Mart, Hancock's vehicle left the highway and crashed. Hancock died at the
scene of the accident.
Travis Roddey, the personal representative of Hancock's estate (Petitioner),
brought an action alleging negligence on the part of Wal-Mart, USSA, and Jones.
At trial, there was varying witness testimony, especially with regard to the course
of events that occurred between Jones and the two Wal-Mart customer service
managers—Rollings and Cox—and between Jones and Beckham.
Beckham testified that when she exited Wal-Mart, she heard Jones yelling
from his vehicle, "Hey, I need to talk to you." According to Beckham, Jones
1
Beckham testified that Hancock was unaware of her intention to shoplift from
Wal-Mart.
"zoomed in on [them]" and blocked Hancock's vehicle as she entered Hancock's
backseat. Beckham testified that she remained crouched in the backseat as they
drove, but looked up periodically to see Jones following behind them at a close
distance with his emergency lights on and frequently flashing his high beam
headlights. Beckham testified that about two miles from Wal-Mart, Hancock
remarked that "he's still on our ass," Beckham observed Jones "on [their] bumper,"
and then Hancock's vehicle "shot off to the left" and crashed.
Rollings testified that when she saw Beckham attempting to shoplift, she
radioed Cox,2 and instructed the door greeters to stop Beckham and ask for a
receipt if she exited the store. Rollings explained that she then walked to the
parking lot and notified Jones of the suspected shoplifting. Rollings testified that
she did not have authority or responsibility over Jones, and that she did not intend
for Jones to approach, delay, or stop Beckham. Rollings acknowledged that Wal-
Mart policy prohibited employees from pursuing shoplifters beyond the parking
lot,3 but testified that she could not radio Jones to tell him to stop pursuing
2
Cox testified that the night of the incident, the following employees had radios:
Cox, Rollings, Jones, and assistant manager Chuck Campbell.
3
Specifically, Wal-Mart's policy for investigating and detaining suspected
shoplifters provides:
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.
Hancock's vehicle because only one person could speak into the radio at a time,
and other employees were using the radio during the incident. Further, she
remembered Cox telling Jones to "[j]ust get the tag number [from Hancock's
vehicle,]" but was unsure whether Cox knew that Jones was pursuing Hancock's
vehicle when Cox gave the instruction to Jones.
Cox testified that the night of the incident, Rollings notified her of
Beckham's shoplifting. After Beckham abandoned the clothing and exited Wal-
Mart, Cox walked outside and saw Jones driving down the aisle of the parking lot
where Hancock's vehicle was parked. Cox testified that Hancock's vehicle struck a
median in the parking lot and headed toward the exit, at which point Cox
instructed: "Get her tag number." Cox testified that she did not intend for Jones to
follow Hancock out of the parking lot and acknowledged that it was Wal-Mart
policy not to pursue shoplifters, but stated that Jones was not a Wal-Mart
employee. According to Cox, she observed Jones's truck two car lengths behind
Hancock's vehicle as they exited the parking lot, but that Jones was less than two
car lengths behind as she saw them driving away.
Jones testified that the night of the incident, he received a call on his radio
informing him that Beckham shoplifted and that she was exiting Wal-Mart.
According to Jones, he asked: "[W]hat do you want me to do because I'm a
security officer; I'm not a police officer. I cannot detain, so what do you want me
to do?" Jones testified that he was instructed to delay Beckham by talking to her.
When he saw her exit the store, he attempted to engage her in conversation, at
which point she ran to Hancock's vehicle. Jones testified that he then blocked
Hancock's vehicle with his truck "because the whole time all [he was] hearing from
[Wal-Mart] was, 'You've got to get that license plate tag. We need that license
plate tag number.'" Jones testified that at the time, he was under the impression
that if he did not get the license plate tag number, he could be fired for not doing
his job. According to Jones, both Rollings and Cox repeatedly instructed him to
get the license plate tag number. After telling them that he could not see the tag
number and that Hancock's vehicle was "about to leave the parking lot," Jones
Further, the Guidelines for Private Security Contractors provide that security
contractors are prohibited from using their vehicles in an attempt to apprehend any
suspects, and only allow their vehicles to leave Wal-Mart property for gas or
maintenance of the vehicle. These guidelines also note that it is the responsibility
of Wal-Mart management to enforce Wal-Mart policies and procedures.
testified that through the radio, someone said, "Man, well, you got to do what you
got to do. You need to get that license plate tag number."
Jones knew that he was not supposed to leave the parking lot, but stated that
he felt pressure due to the instruction to "do what you got to do," which Jones
interpreted to mean pursuing Hancock's vehicle beyond the parking lot. Jones
testified that even after he told Wal-Mart employees over the radio that Hancock's
vehicle was leaving the parking lot, Wal-Mart employees continued to instruct him
to obtain the license plate tag number. Jones stated that he was in radio
communication with Wal-Mart employees until a highway on-ramp, where he
witnessed Hancock's vehicle almost cause an accident. He then lost sight of
Hancock's vehicle until he later saw lights flashing on the side of the road, where
he found Beckham screaming for help and Hancock severely injured.
Jeff Gross, Petitioner's expert witness in parking lot security, guard force,
and loss prevention, testified that several of Wal-Mart's policies were violated
"through tacit approval of [Wal-Mart]." Gross further testified that Wal-Mart
"didn't do anything to stop [Jones] . . . . [T]hey told him to go out and get [the]
license plate number, with that they didn't give any other instruction or guidance."
Gross stated that "the very headwaters of this problem starts with [Wal-Mart
employees] not following their own policies [and] asking [Jones] to do something
that [Wal-Mart] specifically says they won't do themselves and they don't want
their contractors to do." Finally, Gross testified that Cox witnessed the pursuit and
had enough time to process the information, yet chose not to use the radio to
instruct Jones to end the pursuit. Based on the testimony of the parties involved in
the incident, Gross opined that there was sufficient range on the radios to
communicate beyond the Wal-Mart parking lot.
Chip Tipton, a representative for Wal-Mart, testified that he saw no evidence
that any Wal-Mart employee violated Wal-Mart policies, and found no fault in the
employees' failure to instruct Jones to end the pursuit. Regardless, Tipton stated
that he did not believe the radio's range would have enabled Wal-Mart employees
to call Jones back because there were often issues with radio transmission inside
Wal-Mart itself.
At the conclusion of Petitioner's case, Wal-Mart moved for a directed verdict
on three grounds: (1) Petitioner presented no evidence that 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; and (3) Hancock's fault in causing her own death was
more than fifty percent as a matter of law. The trial court granted the motion on
Wal-Mart's first two grounds, finding insufficient evidence that Wal-Mart was
negligent, and that even if Wal-Mart was negligent, there was a lack of proximate
cause because the events were not foreseeable. The trial court stated that at that
point, it could not find Hancock more than fifty percent negligent as a matter of
law. Upon the conclusion of trial, the jury found that Hancock was sixty-five
percent at fault, and that USSA and Jones were collectively thirty-five percent at
fault.
The court of appeals affirmed the trial court's decision to grant Wal-Mart's
motion for a directed verdict in a split opinion. See Roddey v. Wal-Mart Stores E.,
LP, 400 S.C. 59, 732 S.E.2d 635 (Ct. App. 2012). Chief Judge Few found that the
trial court should not have directed a verdict on the basis that there was insufficient
evidence of Wal-Mart's negligence because evidence existed that Wal-Mart
employees violated Wal-Mart policies. Chief Judge Few further found that the
actions of Jones and Hancock were foreseeable. Nevertheless, Chief Judge Few
determined that the trial court should have granted Wal-Mart's directed verdict
motion on the following grounds: (1) the jury's factual determination of fault
apportionment between Hancock, Jones, and USSA was binding on Petitioner even
though Wal-Mart's actions were not included in the jury's analysis; and (2)
Hancock was more than fifty percent at fault as a matter of law. Judge Short
concurred in a separate opinion, finding that Wal-Mart was entitled to a directed
verdict because it was not foreseeable that Jones would leave the parking lot and
continue to aggressively pursue Hancock for several miles.
Judge Huff dissented, agreeing with Chief Judge Few that evidence existed
from which a jury could find that Wal-Mart was negligent, and that negligence
proximately caused the injuries that occurred. Judge Huff also stated that while a
jury still could have found Hancock sixty-five percent negligent even after
considering Wal-Mart's liability, it could also have conceivably found—after
factoring in Wal-Mart's negligence—that Hancock was less than fifty percent at
fault. Accordingly, Judge Huff opined that the trial court should have submitted
the issues of negligence and proximate cause to the jury.
We granted Petitioner's petition for a writ of certiorari to review the court of
appeals' decision pursuant to Rule 242, SCACR.
STANDARD OF REVIEW
When ruling on a motion for a directed verdict, the trial court must view all
evidence and all reasonable inferences in the light most favorable to the
nonmoving party, and if the evidence is susceptible of more than one reasonable
inference, the trial court should submit the case to the jury. Unlimited Servs., Inc.,
v. Macklen Enters., Inc., 303 S.C. 384, 386, 401 S.E.2d 153, 154 (1991). In a
comparative negligence case, the trial court should grant a directed verdict motion
if the sole reasonable inference from the evidence is the nonmoving party's
negligence exceeded fifty percent. Bloom v. Ravoira, 339 S.C. 417, 422, 529
S.E.2d 710, 712 (2000). Comparing the negligence of two parties is ordinarily a
question of fact for the jury. Creech v. S.C. Wildlife & Marine Res. Dep't, 328
S.C. 24, 32, 491 S.E.2d 571, 575 (1997). This Court is "reticent to endorse
directed verdicts in cases involving comparative negligence." Thomasko v. Poole,
349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002).
ANALYSIS
Viewing the evidence in the light most favorable to the nonmoving party—
Petitioner—we find that there is evidence from which a jury could determine that
Wal-Mart was negligent, and that its negligence proximately caused the injuries in
this case. Accordingly, we hold that the trial court should have submitted to the
jury the issues of Wal-Mart's negligence and proximate cause, and we remand for a
new trial as to all of the defendants.
I. Evidence of Wal-Mart's Breach of its Duty of Care
To prove a cause of action for negligence, a plaintiff must show: (1) the
defendant owes a duty of care to the plaintiff; (2) the defendant breached that duty
by a negligent act or omission; (3) the defendant's breach was the actual and
proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or
damages. Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 135, 638
S.E.2d 650, 656 (2006). In a given case, a court may establish and define the
standard of care by looking to the common law, statutes, administrative
regulations, industry standards, or a defendant's own policies and guidelines. Id. at
140, 638 S.E.2d at 659. Evidence of a company's deviation from its own internal
policies is relevant to show the company deviated from the standard of care, and is
properly admitted to show the element of breach. Peterson v. Nat'l R.R. Passenger
Corp., 365 S.C. 391, 397, 618 S.E.2d 903, 906 (2005); see also Caldwell v. K-Mart
Corp., 306 S.C. 27, 31, 410 S.E.2d 21, 24 (Ct. App. 1991) (holding that K-Mart's
loss prevention manual was relevant on the material issue of the reasonableness of
K-Mart's actions, and noting that in negligence cases, internal policies or self-
imposed rules are often admissible as relevant on the issue of failure to exercise
due care (citations omitted)).
There is evidence that Wal-Mart breached its duty of care, and therefore, the
trial court erred in finding that the directed verdict was proper on that ground.
While a jury could conclude from the evidence that Wal-Mart employees merely
requested Jones to delay Beckham or obtain the license plate tag number of
Hancock's vehicle in a manner that did not violate Wal-Mart's policies, there is also
evidence that Wal-Mart employees violated Wal-Mart's policies by instructing
Jones to engage in the pursuit that occurred. Specifically, there is evidence
indicating that Wal-Mart employees directed Jones to obtain Hancock's license
plate tag number while observing Jones following Hancock's vehicle in the parking
lot and even after Jones stated that Hancock's vehicle was leaving the parking lot.
Accordingly, there is evidence from which a jury could find that Wal-Mart
employees either instructed Jones to act in violation of Wal-Mart's policies, or
acquiesced in Jones's improper pursuit of Hancock and Beckham.
II. Proximate Cause
To show proximate cause, a plaintiff must show both causation in fact and
legal cause. Madison, 371 S.C. at 146, 638 S.E.2d at 662 (citing Oliver v. S.C.
Dep't of Highways & Pub. Transp., 309 S.C. 313, 316, 422 S.E.2d 128, 130
(1992)). A plaintiff proves causation in fact by establishing that the injury would
not have occurred "but for" the defendant's negligence, and legal cause by
establishing foreseeability. Id. (citing Oliver, 309 S.C. at 316, 422 S.E.2d at 130).
"Foreseeability is determined by looking at the natural and probable consequences
of the complained of act, although it is not necessary to prove that a particular
event or injury was foreseeable." Id. (citations omitted). The defendant's
negligence does not have to be the sole proximate cause of the plaintiff's injury;
instead, the plaintiff must prove the defendant's negligence was at least one of the
proximate causes of the injury. Id.An intervening force may be a superseding cause that relieves an actor from
liability, but for there to be relief from liability, the intervening cause must be one
that could not have been reasonably foreseen or anticipated. Rife v. Hitachi Const.
Mach. Co., 363 S.C. 209, 217, 609 S.E.2d 565, 569 (Ct. App. 2005). In other
words, the intervening negligence of a third party will not excuse the first
wrongdoer if such intervention ought to have been foreseen in the exercise of due
care. Bishop v. S.C. Dep't of Mental Health, 331 S.C. 79, 89, 502 S.E.2d 78, 83
(1998). "In such case, the original negligence still remains active, and a
contributing cause of the injury." Id. Accordingly, if the intervening acts are set
into motion by the original wrongful act and are the foreseeable result of the
original act, the "final result, as well as every intermediate cause, is considered in
law to be the proximate result of the first wrongful cause." Wallace v. Owens-Ill.,
Inc., 300 S.C. 518, 521, 389 S.E.2d 155, 157 (Ct. App. 1989).
As an initial matter, there is evidence that "but for" Wal-Mart employees
instructing Jones to obtain Hancock's license plate tag number, the accident would
not have occurred. Moreover, viewing the evidence in the light most favorable to
Petitioner, the trial court erred in finding the directed verdict was proper as to
foreseeability, because there is more than one reasonable inference as to whether
the consequences of the Wal-Mart employees' actions were foreseeable. It is a
natural and probable consequence that a contracted security guard would follow
instructions from Wal-Mart employees telling him to "do what you got to do,"
including pursuing a suspect off-premises. Furthermore, Wal-Mart's own policies
demonstrate that Wal-Mart recognized the danger of pursuing a shoplifting
suspect, and it was reasonably foreseeable that instructing a contracted security
guard to engage in such pursuit would be dangerous.
We find that there is sufficient testimony indicating that upon the Wal-Mart
employees' instruction to obtain Hancock's license plate tag number, Jones's
actions were not independent unforeseeable intervening acts. There was evidence
presented that: Wal-Mart employees' instructions led Jones to drive through Wal-
Mart's parking lot in pursuit of Beckham; Wal-Mart-employees directed Jones to
obtain Hancock's license plate tag number while observing Jones pursue Beckham
and Hancock in his patrol vehicle, with both vehicles being operated recklessly;
and Wal-Mart continued to instruct Jones to obtain the tag number even after Jones
informed them that Hancock's vehicle was leaving the parking lot.
Accordingly, there is evidence that Jones's acts—which were the foreseeable
results of Wal-Mart employees' actions—were set into motion by the original
wrongful acts of Wal-Mart. We therefore reverse the court of appeals' decision to
uphold trial court's grant of a directed verdict on the issue of proximate cause.
III. Apportionment of Fault
Unlike Chief Judge Few, we do not view Wal-Mart's liability as strictly
derivative of Jones's or USSA's liability. In addition to Petitioner's claim that
Jones was Wal-Mart's agent and thus, Wal-Mart is vicariously liable for his
conduct, Petitioner also alleged that Wal-Mart was liable based on its failure to
properly supervise Jones and Wal-Mart's improper advice or instruction to Jones to
follow Hancock to obtain her license plate tag number. Considering Wal-Mart's
potential liability, it is conceivable that a jury could find that the collective fault of
the defendants was over fifty percent and that Hancock was less than fifty percent
at fault.4 In light of the reversal of the directed verdict as to Wal-Mart's liability,
the only appropriate remedy in this situation is a new trial.
CONCLUSION
Based on the foregoing, we reverse the court of appeals' decision and
remand for a new trial as to all defendants.
REVERSED AND REMANDED.
BEATTY and HEARN, JJ., concur. PLEICONES, C.J., dissenting in a
separate opinion in which KITTREDGE, J., concurs.
4
The dissent, by adopting Chief Judge Few's rationale, merely assumes the
outcome of the jury's deliberations when it is impossible to know what would
influence the jury's comparison if the jury was permitted to consider Wal-Mart's
liability. Here, we cannot say that the sole reasonable inference to be drawn from
the evidence was that Hancock was more than fifty percent negligent in light of the
testimony that Wal-Mart employees instructed Jones to follow Hancock. Bloom,
339 S.C. at 422, 529 S.E.2d at 713 ("In a comparative negligence case, the trial
court should only determine judgment as a matter of law if the sole reasonable
inference which may be drawn from the evidence is that the plaintiff's negligence
exceeded fifty percent." (citation omitted) (emphasis added)). Therefore, it would
be inappropriate for this Court to speculate. See Thomasko, 349 S.C. at 11, 561
S.E.2d at 599 ("Because the term is relative and dependant on the facts of a
particular case, comparing the negligence of two parties is ordinarily a question of
fact for the jury. For these reasons, this Court is reticent to endorse directed
verdicts in cases involving comparative negligence." (internal citations omitted)).
CHIEF JUSTICE PLEICONES: I respectfully dissent and would affirm the
decision of the Court of Appeals. I agree with Chief Judge Few:
Even under [Petitioner'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, [Petitioner] is bound by the jury's finding that she was
65% at fault, and the trial court's decision to grant Wal-Mart a
directed verdict could not have prejudiced [Petitioner].
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).
Roddey v. Wal-Mart Stores E., LP, 400 S.C. 59, 68, 732 S.E.2d 635, 639-40 (Ct.
App. 2012).
Moreover, I am not convinced that even if Petitioner were entitled to a new trial
against Wal-Mart, it would be proper to require USSA and Jones to face the
possibility of liability in a second trial having been absolved in the first. In arguing
for a joint retrial, Petitioner relies on Williams v. Slade, 431 F.2d 605 (5th Cir.
1970). In Williams, the "innocent" passenger sued both the driver of the
automobile in which she was riding and the driver of the other car involved in the
accident. The trial court directed a verdict in favor of one of the drivers, and the
jury returned a verdict in favor of the other. In Williams, either of the defendants,
or both, might have been liable to the plaintiff. Here, however, Wal-Mart could
not be liable unless USSA and Jones were also responsible, and unlike the
Williams' innocent plaintiff, a jury could (and did) find Hancock to be most at
fault. I am unable to determine why the majority concludes, without discussion,
that both USSA and Jones should again face a jury trial and the possibility of
liability.
KITTREDGE, J., concurs.