Boudreau v. Shaw’s Supermarkets, Inc. (1st Cir. Apr. 10, 2020)

On April 10, 2020, the First Circuit issued an important decision on the scope of a retailer’s duty under Maine’s wrongful death law to protect its customers, holding that a customer’s unprovoked murder of another customer in a supermarket was not foreseeable, and that therefore the supermarket was not legally liable to the victim.

On August 19, 2015, a woman attacked and killed an elderly customer in the ice cream aisle of a Shaw’s Supermarket in Saco, Maine. Both the attacker and the elderly customer were regular shoppers at the Shaw’s. The attacker was someone who regularly loitered outside the store smoking and was known to be a “strange” person who wore baggy military clothes and had a shaved head. In 2011, the attacker had been banned from the premises because she had been was hanging around outside of the store and scaring customers. However, Shaw’s allowed her to return to the store a year later, and from 2012 to the day of the attack, there were no other complaints about the attacker.

The decedent’s husband sued Shaw’s in federal court for wrongful death, arguing that Shaw’s owed its customers a duty to protect them from foreseeable harm and that the 2015 attack was foreseeable. The district court granted summary judgment in Shaw’s favor, finding that the attack was not foreseeable, and the decedent’s husband appealed to the U.S. Court of Appeals for the First Circuit.

The First Circuit likewise focused on whether the 2015 attack was foreseeable, and ultimately agreed with the district court that it was not. The court highlighted that no Shaw’s employee had ever seen the attacker act violently, raise her voice, or threaten anyone in the market. Although the court recognized that customers had complained that the woman was “strange” and made them feel “awkward” or “uncomfortable,” such complaints did not make the attack inside the store foreseeable. As the court observed, “[w]eird clothing and affect were not uncommon among the store’s many customers.” Without any previous specific threats or violence, Shaw’s was not on notice that the attacker posed any threat of violence to its customers.

The decedent’s husband further claimed that Shaw’s internal manual on shoplifting policies and procedures created a duty to follow those procedures and monitor “strange” people like the attacker. The court rejected this argument, explaining that there was no authority for the proposition that a store’s internal shoplifting policies created a duty under Maine law.

The court’s decision clarifies the bounds of a retailer’s duties to its customers. Even when facing tragic facts, the court refused to hold the supermarket liable for such an unprovoked and unforeseeable attack.

Courts in Vermont would likely follow the approach taken by the First Circuit on these kinds of facts, as that court’s approach is consistent with existing Vermont law. For example, in Edson v. Barre Supervisory Union No. 61, the Vermont Supreme Court considered a wrongful death action by the mother of a student who was murdered off-campus during the school day. 2007 VT 62, ¶ 13. 182 Vt. 157, 162, 933 A.2d 200, 205 (2007). The Court announced that generally “crimes committed by a third party fall within the realm of the unforeseeable, and therefore cannot form the basis for liability.” Id. In order to hold a defendant liable in such circumstances, a plaintiff must show that “the defendant had special knowledge or notice upon which to impose a duty to anticipate the wrongful act.” Id. The Court found that the school did not have sufficient knowledge or notice that the attack would take place for it to have been foreseeable, as there was no evidence that the school was or should have been aware that the attacker planned to assault the student victim.

Courts applying Edson have likewise focused on whether the defendant had notice or knowledge that an attack may take place, finding a duty only when a plaintiff put forward evidence of such notice or knowledge. Compare Harrington v Rheaume, No. 729-10-09 RDCV, 2012 WL 4294066, at *2 (Vt.Super. July 09, 2012) (landlord not liable for assault on tenant by another tenant because no evidence that attack was foreseeable) with Trafton v Champlain Housing Trust, No. 240-3-17 CNCV, 2018 WL 8666283, at *4 (Vt.Super. Mar. 19, 2018) (landlord could be held liable for assault on tenant by another resident where plaintiff adduced evidence that tenant had received multiple complaints about attacker posing threat to other tenants).

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