No Duty Owed to Patrons When Shoplifters Steal

On April 12, 2024, Florida’s Fifth District Court of Appeals affirmed summary judgment for Wal-Mart in response to a patron’s negligence action which focuses on Wal-Mart’s legal duty to protect patrons from a fleeing shoplifter. Johnson v. Wal-Mart Stores East, LP, 2024 WL 1595245. The decision adds to Florida’s scarce consideration of the issue where the Fifth DCA only recognized similar analysis in Kmart Corp. v. Lentini, 650 So. 2d 1031 (Fla. 2d DCA 1995) and Graham v. Great Atlantic & Pacific Tea Co., 240 So. 2d 157 (Fla. 4th DCA 1970).  

The Case

In this story, the proverbial Billie Joe and Bobbie Sue devised a plan to shoplift expensive electronics from the store while one concealed the vehicle’s license plate and the other utilized the self-checkout. Employees noticed the scheme and asked for the transaction receipt when the latter then spun his cart, collided with other shoppers, and escaped to the getaway car. Plaintiff walked into the store and noted the commotion as Wal-Mart employees called to one another to contact 911 and walked outside to hopefully identify the vehicle as it left. Plaintiff followed employees outside and continued into the parking lot towards his vehicle to leave, but unfortunately not before the shoplifters’ vehicle hit him, resulting in injuries.

Ultimately, the Fifth DCA affirmed the trial court’s decision and concluded that Wal-Mart did not create a reasonable foreseeable zone of risk by its employees’ actions based on the undisputed evidence and timing of events. As such, Wal-Mart had no legal duty to protect plaintiff from fleeing shoplifters. Taking together the analysis from other DCAs in Lentini and Graham, the Fifth DCA devised that “a store has no duty to protect customers from a fleeing shoplifter, at least without some special circumstances indicating danger before the shoplifter flees.” (Johnson, 2024 WL 1595245, at *4). Here, no such circumstances existed.

Additionally, the Fifth DCA considered and rejected plaintiff’s reliance on Wal-Mart’s internal policies regarding shoplifters as evidence that “escalating an encounter with a shoplifter” creates a foreseeable zone of risk for two reasons. First, the argument is premised in the previously rejected argument that Wal-Mart’s conduct escalated the incident whatsoever. Second, the court reflected that while generally legal duty is not in dispute, it is a question of law for the court. Nonetheless, internal policies related to standards of care tend to go “far beyond what is merely reasonably foreseeable” and alone are not evidence of a legal duty. [See Disc. Tire Co. v. Bradford, 373 So. 3d 399, 402 (Fla. 5th DCA 2023)]. 

Judge Makar provided a lengthy dissent where he relied on case law discussing a business’ general duty to make the premises safe and protect customers from foreseeable harm, distinguishing Lentini and Graham from the presented facts. Since there is limited discussion about this particular legal duty and the Fifth DCA advanced “special circumstances” can change the analysis, businesses should be mindful about shoplifter policies and employee training thereon.  

This article originally appeared on Freeman Mathis & Gary, LLP. 

About the Author:

Jessica Cauley is an associate at Freeman Mathis & Gary, LLP. jessica.cauley@fmglaw.com