McClung v. Delta Square Ltd. Pshp.

937 S.W.2d 891 (Tenn. 1996)



To establish negligence, one must prove: (1) a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. 


On September 7, 1990, thirty-seven year-old Dorothy McClung, plaintiff's wife, went shopping at Wal-Mart in the Delta Square Shopping Center in Memphis. As she was returning to her parked car around noon, Mrs. McClung was abducted at gunpoint and forced into her car by Joseph Harper, a fugitive from Chattanooga. Later, Harper raped Mrs. McClung and forced her into the trunk of her car where she suffocated. Her body was found by hunters in a field in Arkansas the day after the abduction. Harper confessed, and was convicted of kidnapping, rape, and murder. He committed suicide after being sentenced to life in prison. Plaintiff filed suit against defendants on his own behalf and on behalf of his and Mrs. McClung's three minor children. In his suit, he alleged that defendant Wal-Mart, the anchor tenant at the Delta Square Shopping Center, and defendant Delta Square, the owner and operator of the center, were negligent in failing to provide security measures for the parking lot and that their negligence was the proximate cause of Mrs. McClung's death. Citing the Supreme Court’s decision in  Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975), the trial court reluctantly  granted defendants' motions for summary judgment. Constrained by the precedence established in Cornpropst, the Court of Appeals has affirmed the decision of the trial court.


Does the precedence set by the Supreme Court’s decision in Cornpropst apply to an abduction from a shopping center parking lot?




In its decision, the court rejected the existing Tennessee law that shop owners owed no duty to customers to protect them against criminal acts of third parties unless the owner knew or should have known the acts were occurring or about to occur - a principle established by the Court’s prior decision in the Cornpropst case. This decision imposes a duty on businesses to take reasonable measures to protect their customers from foreseeable criminal attacks. Taking into consideration the number, frequency, and nature of the crimes reported to police, management's acknowledgement of security problems, and other evidence in the record, the Court concluded that the proof would support a finding that the risk of injury to the plaintiff’s wife was reasonably foreseeable. The Court instructed the trial court on remand to consider the burden that the duty would impose upon the business owner and the shopping center operator.

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