DEPRINS v. WAL-MART

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE HARRY DEPRINS, Individually and as Personal Representative of the Estates of Armand DePrins and Simonne DePrins, Deceased, ) ) ) ) ) Plaintiff/Appellant, ) ) v. ) ) WAL-MART STORES, INC., a ) Delaware corporation, ) ) Defendant/Appellee. ) ) __________________________________) DIVISION ONE FILED: 6/4/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0502 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Navajo County Cause No. S0900CV201000575 The Honorable John N. Lamb, Judge AFFIRMED The Nielsen Law Firm, PLLC By Yuri B. Nielsen Attorneys for Plaintiff/Appellant Phoenix Lewis and Roca LLP By Craig W. Phillips Lawrence A. Kasten Georgia Hamann Attorneys for Defendant/Appellee Phoenix T H O M P S O N, Judge ¶1 Plaintiff/Appellant Harry DePrins, individually and as personal representative of the Estates of Armand DePrins and Simonne DePrins, appeals the superior court s summary judgment for Defendant/Appellee Wal-Mart Stores, Inc., on his claim for the wrongful death of Armand and Simonne. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 On March 2, 2009, Donald Belanger murdered Armand and Simonne DePrins in a Wal-Mart parking lot in Show Low. ¶3 history Belanger was the DePrins s former neighbor and had a of animosity toward them stemming from a dispute concerning the maintenance fund for a common well that supplied several properties, DePrinses. including those of Belanger and the In 2005, the DePrinses and other homeowners filed a lawsuit against Belanger and his wife asking the court for a declaratory judgment concerning the well dispute. They also asked the court to enjoin Belanger s harassment, which, in the case of the DePrinses, consisted of Belanger taking video footage of them on their property, monitoring their movements with motion sensors, entering their property at night to commit vandalism, and cutting the brake lines on their motor home. During the trial, Belanger acknowledged he had previously been treated for mental without illness a and doctor s had stopped order. The 2 taking court prescribed ruled in medication favor of the DePrinses and the other homeowners and ordered Belanger to pay attorneys fees. ¶4 Sadly, Belanger Belanger in October then fell and his 2008, into wife moved Belanger s a severe to California wife committed in depression, blamed 2008. suicide. others, including the DePrinses, for his wife s death, and threatened suicide. ¶5 In late February 2009, Belanger returned to the Show Low area and rented a cabin. On March 2, 2009, the DePrinses, following their established pattern for household shopping, drove to the Wal-Mart in Show Low. Belanger entered the parking lot a few minutes after the DePrinses and waited in the lot until they exited the store and began loading their vehicle. Belanger then approached the DePrinses, removed a gun from his pocket, shot Armand and Simonne multiple times, and fled. ¶6 Later that night, New Mexico police observed Belanger driving erratically and initiated a traffic stop of his vehicle. After Belanger pulled to the side of the road, he shot and killed himself. Police found a suicide note on his dashboard. ¶7 The wrongful death DePrins s against son, Harry, Wal-Mart. filed this Wal-Mart moved action for for summary judgment on the grounds that Harry had not produced sufficient evidence to create a material question of fact regarding whether Wal-Mart breached the duty of care it owed to the DePrinses and 3 whether any such breach caused their deaths. The superior court granted the motion, ruling Wal-Mart did not breach its duty of care because it could not have foreseen that Belanger would kill the DePrinses in its parking lot. contribute to or cause the It also ruled Wal-Mart did not DePrins s deaths. Harry timely appealed. ¶8 We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (2012). ISSUES ¶9 Harry contends the superior court erred by granting summary judgment for Wal-Mart because material disputes of fact existed regarding whether Wal-Mart breached the duty of care it owed the DePrinses and whether that breach caused their deaths. Wal-Mart urges us to affirm on the grounds that Harry did not produce sufficient evidence to create a genuine issue of material fact on the issue of breach, or on the alternative basis that he cannot, as a matter of law, establish causation. DISCUSSION ¶10 A court may grant summary judgment when there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. 56(c)(1). Ariz. R. Civ. P. We view the evidence in the light most favorable to Harry and determine de novo whether there are any genuine issues of material fact and whether the 4 trial court erred in its application of the law. Unique Equip. Co., Inc. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App. 1999). ¶11 To establish a claim for negligence, a plaintiff must prove four conform elements: a to (1) standard certain a duty requiring of care; the (2) a defendant breach by to the defendant of that standard; (3) a causal connection between the defendant s damages. 228, conduct and the resulting injury; and (4) actual Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 230 (2007). We examine the elements of breach and causation, which the superior court ruled on as a matter of law. A. Breach of Duty ¶12 A duty is an obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. Id. at 143, ¶ 10, 150 P.3d at 230 (citations omitted). Because the DePrinses were Wal-Mart s business invitees, WalMart s duty required it to premises safe for their use. use reasonable care to make its Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985), superseded on other grounds by statute as recognized in Wringer v. United States, 790 F.Supp. 210, 212 (D. Ariz. 1992). duty must not be confused required to satisfy the duty. with However, the existence of a the details of the conduct Markowitz, 146 Ariz. at 355, 706 5 P.2d at 367. While Wal-Mart s duty remained constant, the acts necessary to fulfill it varied with the circumstances. Grafitti- Valenzuela v. City of Phoenix, 216 Ariz. 454, 458, ¶ 12, 167 P.3d 711, 715 (App. 2007). ¶13 Whether a defendant has exercised the care required to satisfy its duty is generally a question of fact for the jury, but the court may rule as a matter of law when no reasonable juror could conclude that the standard of care was breached. Gipson, 214 Ariz. at 143 n.1, ¶ 9, 150 P.3d at 230 n.1. We therefore must determine whether, as a matter of law, Wal-Mart s conduct was reasonable and, thus, satisfied the duty it owed the DePrinses. Wal-Mart argues no reasonable jury could find that it breached its duty to the DePrinses because there was no evidence of any similar criminal activity in the Wal-Mart parking lot in Show Low and Belanger s conduct was not reasonably foreseeable. Harry contends Wal-Mart was aware that crimes had occurred in the Show Low parking lot and other Wal-Mart parking lots across the country and that whether, in light of this information, Wal-Mart did enough to keep the DePrinses safe from crime in its parking lot was a question of fact for the jury. ¶14 The scope and nature of the conduct required to satisfy a duty to keep premises reasonably safe is limited to keeping them safe from those harms that are foreseeable . . . . Grafitti-Valenzuela, 216 Ariz. at 458, ¶ 14, 167 P.3d at 715. 6 Accordingly, a defendant may be required to take precautions against the criminal acts of third parties if they are reasonably foreseeable and preventable. Martinez v. Woodmar IV Condo. Homeowners Ass n, Inc., 189 Ariz. 206, 211-12, 941 P.2d 218, 22324 (1997) (holding summary judgment was inappropriate because defendant criminal knew acts of and gang incursions could have taken involving drugs reasonable and other precautions to prevent harm to the plaintiff); Rogers By & Through Standley v. Retrum, 170 Ariz. 399, 401-02, 825 P.2d 20, 22-23 (App. 1991) ( [T]he reckless or criminal nature of an intervenor s conduct does not place it beyond the scope of a duty of reasonable care if that duty entails foresight and prevention of precisely such a risk. ). While a defendant need not take every precaution to prevent crime, it must act reasonably under the circumstances. Grafitti-Valenzuela, 216 Ariz. at 459, ¶ 14, 167 P.3d at 716. ¶15 from Wal-Mart contends Harry has not offered any evidence which a reasonable jury could conclude that Belanger s criminal acts were the type of foreseeable harm from which WalMart was bound to protect the DePrinses. Harry argues that because Wal-Mart knew of past crimes in the Show Low parking lot, as well as Wal-Mart parking lots across the country, the risk of injury to customers in the Show Low parking lot was foreseeable, even if murder by gunshot from a stalking madman like . . . Belanger was not specifically predictable. 7 ¶16 Wal-Mart cited police records for more than two years prior to the murders that showed no similar crimes had occurred in the Show Low parking lot. During that time, twenty-one incidents were reported to police, including, as relevant, eight thefts from the parking lot while persons were shopping in the store and two charges of disorderly conduct (one brawl resulting in a small screaming). 1 cut and one intoxicated person urinating and In addition, the officer who responded to the scene testified that he was personally and professionally familiar with the Wal-Mart store and that, to his knowledge, the murders were the first violent crimes that had occurred there. ¶17 Harry argues, however, that the Show Low parking lot was not a low-crime area, noting that in the ten years prior to the DePrins s murder, the police had received numerous reports of disorderly criminal aggravated conduct, damage, criminal theft, assault, trespass, domestic stalking, and 1 burglaries, violence, weapons assaults, armed misconduct robbery, in the With one exception, the other reports related to hit and runs, a traffic accident, possession of controlled substances, using a pay phone to make harassing calls, criminal trespass, and loitering. The exception was that in September 2008, a WalMart employee reported that a co-worker sexually assaulted her in his vehicle in the Show Low parking lot in May 2008. After police interviewed the alleged perpetrator, they declined to file charges against him. There is no indication that this incident was reported to Wal-Mart. 8 parking lot. 2 Harry contends Wal-Mart s awareness of these parking lot crimes is evidenced by the fact that it took security measures, such as installing video cameras and sending employees on periodic patrols of the parking lot, but asserts these steps were inadequate to fulfill its duty. ¶18 Belanger s crime differed substantially from the earlier reported crimes and those acts did not make his murder of the DePrinses foreseeable. See Hill v. Safford Unified Sch. Dist., 191 Ariz. 110, 115, 952 P.2d 754, 759 (App. 1997) ( A reasonably foreseeable event is one that might reasonably be expected to occur now and then, and would be recognized as not highly unlikely if it did suggest itself to the actor s mind. ) (quoting Tellez v. Saban, 188 Ariz. 165, 172, 933 P.2d 1233, 1240 (App. 1996)). perpetrated on Belanger s random crime victims was not selected availability in the Show Low parking lot. one only of opportunity, because of their Rather, Belanger had a long-standing grudge against the DePrinses, whom he blamed for his wife s death. He followed them into the Wal-Mart parking lot, laid in wait while they shopped in the store, and murdered 2 Harry does not provide a citation to the record in support of this argument, but appears to rely on the police department synopsis of the location history for the Show Low Wal-Mart submitted by Wal-Mart in support of its motion for summary judgment. Wal-Mart contends Harry has mischaracterized this evidence. For purposes of our review, we accept Harry s alleged facts as true and draw all reasonable inferences from the evidence in his favor. Sanchez v. City of Tucson, 191 Ariz. 128, 130, ¶ 7, 953 P.2d 168, 170 (1998). 9 them without hesitation. Although Wal-Mart s duty required it to take reasonable safety precautions against crime in its parking lot, it was not required to protect enemies seeking to do them harm. its customers from all The evidence of prior crimes in Wal-Mart s parking lot did not make Belanger s crime foreseeable such that Wal-Mart was required to take precautions to prevent it. Grafitti-Valenzuela, 216 Ariz. at 458, ¶ 14, 167 P.3d at 715. ¶19 Harry next claims Wal-Mart s knowledge of violent acts routinely occurring in its parking lots around the country made Belanger s conduct foreseeable. In particular, Harry cites: (1) The concurring opinion of Justice Starcher of the West Virginia Supreme Court in Jane Doe v. Wal-Mart Stores, Inc., 558 S.E.2d 663, 678 (W. Va. 2001), in which the justice wrote, Wal-Mart parking lots are a virtual magnet for crime. (2) A report entitled Crime and Wal-Mart Is Wal-Mart Safe? An Analysis of Official Police Incidents at Wal-Mart Stores, dated May 1, 2006, and published by www.WakeUpWalMart.com. (3) An article entitled, Loss Prevention Racks Up Success, by Dave Gorman a former WalMart security management official. (4) An internal, confidential memorandum dated April 10, 1995. 3 3 Wal-Mart Wal-Mart challenged the admissibility of this evidence, arguing it lacked foundation and was inadmissible hearsay. The superior court did not strike the documents before granting summary judgment for Wal-Mart. 10 ¶20 We agree with Wal-Mart that evidence of crime at other Wal-Mart parking lots is conduct was foreseeable. not relevant to whether Belanger s First, these documents do not indicate that crimes similar to Belanger s murder of the DePrinses are a common occurrence in Wal-Mart parking lots around the country. Further, a defendant s knowledge that a particular crime has occurred somewhere, sometime, does not make it foreseeable that the same or a similar crime will occur on the defendant s premises such that he must take precautions to safeguard his patrons against that crime. See Grafitti-Valenzuela, 216 Ariz. at 459, ¶ 15, 167 P.3d at 716 (stating the law did not require the City to install additional amenities at bus stops with no history of criminal conduct, which would be tantamount to requiring it to install them at virtually every bus stop to prevent crime at those locations). Wal-Mart was not required to take precautions in the Show Low parking lot to prevent crimes similar to any and all other crimes that had occurred in Wal-Mart parking lots. ¶21 because Harry also argues Wal-Mart breached its duty of care it did not discover Belanger s arguably suspicious activity in the Show Low parking lot while he waited for the DePrinses to exit the store. However, there is no evidence that Belanger s conduct in the parking lot prior to his shooting the DePrinses was suspicious or should 11 have caused Wal-Mart to intervene for its customers safety. The police officer who investigated the murder testified that, as recorded on Wal-Mart s surveillance video, Belanger had not behaved in an obviously threatening manner prior to the shooting. ¶22 Under the circumstances of this case, a reasonable jury could not find that Wal-Mart breached the duty of care it owed to the DePrinses by not implementing security measures that would have prevented Belanger s crime. See Martinez, 189 Ariz. at 210- 11, 941 P.2d at 222-23 (stating premises owner must only do what is reasonable to protect others from foreseeable and preventable danger); Retrum, 170 Ariz. at 403, 825 P.2d at 23 (noting that, in approaching the question of negligence or unreasonable risk, the courts set outer limits. A jury will not be permitted to require a party to take a precaution that is clearly unreasonable . . . . (quoting 3 F. Harper, F. James, & O. Gray, The Law of Torts § 15.3, at 355-57 (2d ed. 1986))). Accordingly, we find no error in the superior court s ruling that, as a matter of law, Wal-Mart did not breach the duty of care it owed to the DePrinses. B. Causation 4 4 Although our determination that Wal-Mart did not breach the duty of care it owed the DePrinses could conclude our analysis, in the exercise of our discretion we consider WalMart s argument that there exists an additional basis to affirm the superior court s ruling. 12 ¶23 Wal-Mart urges us to affirm on the grounds that Harry cannot, as a matter of law, establish that Wal-Mart s conduct caused the DePrins deaths. Harry argues that a reasonable jury could conclude that Wal-Mart s failure to provide adequate safety measures proximately caused the DePrins deaths. ¶24 A plaintiff s defendant s injury only if bringing about the harm. ¶ 21, 167 P.3d at 717. would not have acts are they the are proximate a cause substantial of factor a in Grafitti-Valenzuela, 216 Ariz. at 460, The plaintiff must show that the injury occurred but for the defendant s negligent conduct, even if the conduct contributed only a little. Id. The mere possibility of causation is not sufficient to create a material question of fact and defeat summary judgment. Id. As with the question of breach, causation is usually a factual issue to be decided by the jury, but the court may rule as a matter of law when no reasonable juror could conclude that the damages were proximately caused by the defendant s conduct. Gipson, 214 Ariz. at 143 n.1, ¶ 9, 150 P.3d at 230 n.1. ¶25 Here, there is no evidence that Wal-Mart s inadequate security caused Belanger to commit his crime. alleged Harry contends that additional security measures might have prevented the DePrins s deaths, and suggests Belanger may have chosen to commit his crime in the Wal-Mart parking lot because he knew the security was inadequate. In particular, he asserts Belanger may 13 have known Wal-Mart did not monitor the parking lot surveillance cameras. We have rejected such speculative evidence in other cases involving the criminal conduct of a third party. For example, in Shaner v. Tucson Airport Authority, Inc., 117 Ariz. 444, 448, 573 P.2d 518, 522 (App. 1977), we held that a security expert s testimony that inadequate lighting and security caused the victim s speculative kidnapping and probability. did Id. not at from an rise 448, to 573 airport the P.2d parking level at of 522. a lot was reasonable Similarly, in Grafitti-Valenzuela, we rejected as speculation the plaintiff s expert s opinion that the lack of a bus shelter and inadequate lighting caused the victim s kidnapping, because there was no indication that conditions or committed the the lack criminal of a abduction additional lighting. made shelter, if there use or of that had the he been low would a lighting not have shelter and 216 Ariz. at 461-62, ¶¶ 24-28, 167 P.3d 718-19. ¶26 Wal-Mart s Harry s contention that Belanger might have known that parking lot security cameras were not actively monitored and chose to murder the DePrinses there because he was unlikely to be apprehended is nothing more than speculation, as there is no evidence in the record that Belanger was familiar with Wal-Mart s surveillance techniques or had, as Harry posits, cased the parking lot. Moreover, the circumstances of the 14 crime, including Belanger s apparent mental illness, support the notion that he would not have been deterred by increased security measures. ¶27 Based on the undisputed facts of this case, a reasonable jury could not find that Wal-Mart contributed to the DePrins s deaths because Belanger would not have murdered them if Wal-Mart had taken additional security measures in its Show Low parking lot. Id. at 461-62, ¶ 28, 167 P.3d 718-19. CONCLUSION ¶28 For the foregoing reasons, we affirm. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ JOHN C. GEMMILL, Presiding Judge /s/ DONN KESSLER, Judge 15

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