Posecai v. Wal-Mart Stores, Inc.
752 So.2d 762 (1999)
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Rule of Law:
A business owner's duty to protect patrons from the criminal acts of third parties is determined by balancing the foreseeability and gravity of the harm against the burden of imposing a duty to protect. A high degree of foreseeability, which generally requires evidence of prior similar incidents of crime on the premises, is necessary to impose a duty to provide security measures.
Facts:
- On July 20, 1995, at approximately 7:20 p.m. while it was still daylight, Shirley Posecai returned to her car in the parking lot of Sam's Wholesale Club in Kenner.
- As Posecai was placing items in her trunk, a man who had been hiding under her vehicle grabbed her, pointed a gun at her, and robbed her of her purse and jewelry valued at nearly $19,000.
- At the time of the robbery, Sam's employed a security guard who was stationed inside the store but had no security personnel patrolling the parking lot.
- In the six and a half years prior to the robbery of Posecai, there had been only three predatory offenses on Sam's premises.
- Of the three prior offenses, only one was a similar crime against a customer in the parking lot: a mugging that occurred in 1992.
- The other two prior incidents included the robbery of a delivery man behind the store after hours in 1989 and a purse snatching of an employee in 1994 that was related to a domestic dispute.
- While a residential subdivision behind Sam's was known as a high-crime area, police testified that Sam's itself was not considered a high-crime location.
Procedural Posture:
- Shirley Posecai filed suit against Wal-Mart Stores, Inc. (d/b/a Sam's Wholesale Club) in a Louisiana state trial court.
- After a bench trial, the trial judge found in favor of Posecai, ruling that Sam's owed a duty to provide security and was 75% at fault.
- Sam's, as appellant, appealed the judgment to the intermediate court of appeal.
- The court of appeal affirmed the trial court's award but amended the judgment to find Sam's 100% at fault.
- Sam's, as applicant, sought and was granted a writ of certiorari by the Supreme Court of Louisiana to review the decision.
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Issue:
Does a business owner owe a duty to protect a patron from the criminal acts of a third party when there have been very few similar prior incidents on the business's premises, even if the business is located near a high-crime area?
Opinions:
Majority - Marcus, J.
No. A business owner's duty to implement security measures to protect patrons from third-party criminal acts arises only when the criminal act is reasonably foreseeable, which is determined by a balancing test. This test weighs the foreseeability and gravity of the harm against the burden of imposing a duty on the business. The court found that the history of crime on Sam's premises was insufficient to make the armed robbery of Mrs. Posecai a foreseeable risk. With only one similar crime against a customer in the preceding six and a half years, the crime risk was very low. The court concluded that this low degree of foreseeability did not justify imposing a duty on Sam's to provide security patrols or other lesser security measures in its parking lot.
Concurring - Lemmon, J.
Yes, I concur with the result. While the nature of the high-volume business near a high-crime area was a cause for concern, the defendant did not act unreasonably by failing to provide outside security. The virtual absence of criminal activity in the exterior area of this specific store during the preceding six years meant that the harm was not reasonably foreseeable, at least during daylight hours.
Concurring - Johnson, J.
Yes, I concur with the result but disagree with the legal test adopted. The majority should have adopted the more flexible 'totality of the circumstances' test, which is the majority rule in the United States, rather than the narrower 'balancing test.' However, even under the broader test, the facts of this case—specifically the low number of prior similar incidents on the premises—would lead to the same conclusion that Sam's did not owe a duty to provide parking lot security.
Analysis:
This case establishes the governing standard in Louisiana for premises liability involving third-party criminal acts. By formally adopting the balancing test, the court set a relatively high bar for plaintiffs, making it more difficult to establish a duty of care. The decision emphasizes that the most important factor is the history of prior similar crimes on the specific premises, rather than general crime rates in the surrounding area. This precedent provides businesses with greater certainty about their legal obligations and limits their liability, shifting the focus from broad neighborhood crime statistics to the specific foreseeability of harm at the business location itself.
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