No Duty to Exclude the Creepy

Interesting tort analysis stemming from a supermarket ice cream aisle murder.

|The Volokh Conspiracy |

Connor MacCalister Mug Shot

[Maine State Police mugshot of Connor MacCalister, copied from the Heavy.com article.]

From Budreau v. Shaw's Supermarkets, Inc.handed down Thursday by Maine U.S. District Court Judge D. Brock Hornby (emphasis added):

A violent grocery store murder in 2015 generated this civil lawsuit. Without provocation, one customer murdered another customer in the store's ice cream aisle on a summer afternoon. Later that year, the murderer was sentenced to life in prison. In 2017, the personal representative of the victim's estate (her husband) brought this wrongful death lawsuit against the grocery store for negligence, arguing that the store should have foreseen the danger and taken preventive action….

[Connor] MacCalister[, the murderer,] visited Shaw's virtually daily, sometimes more than once a day. She wore baggy men's clothing, either black or camouflage, with a chain on one side, and men's military boots. Her head was shaved; her jaw was clenched; she had bulging eyes, an angry-looking face, and offensive Nazi tattoos [a swastika and an SS symbol] on the underside of her arms just above her wrists. She spoke little and sometimes not at all, even when spoken to directly. She often had a backpack and did not always use a shopping cart or basket. When she bought anything, she usually purchased a small number of items. There were unverified rumors that she sometimes shoplifted…. Some Shaw's employees reported comments made about MacCalister after the murder—that, for example, she engaged in "shoplifting and that she was kind of creepy." …

It is tempting to say that there is a material factual issue on foreseeability, and simply leave this tragic case to a jury to straighten out. But Maine law is clear—Shaw's is liable only if it reasonably should have anticipated that MacCalister was a danger to another customer on August 19, 2015. MacCalister's appearance and behavior in Shaw's scared some customers and sometimes made a customer service representative feel awkward or uncomfortable, and her clothing and shopping behavior made her a suspect for shoplifting. Viewing this record in the light most favorable to the plaintiff, I conclude that what Shaw's knew, should have known, or should reasonably have anticipated did not suggest that on August 19, 2015, MacCalister was a danger to other customers.

And there is a potential policy issue here. Because the record does not establish reasonable anticipation of danger, I need not resolve it, but the lurking issue is what should be the duty of public retailers whose customers have bizarre or offensive clothing, appearance, demeanor or behavior but do not actually engage in or threaten violence on the retailers' premises? To avoid risk, should the retailers exclude them from their stores? …

Wendy Boudreau's August 2015 murder in the Saco Shaw's ice cream aisle was a shocking, tragic event. Could or should police and health care personnel, with the information available to them, have appreciated MacCalister's danger to others and taken steps to thwart it? I don't know. But the summary judgment record does not support the conclusion that either generally or on the day in question Shaw's' personnel knew or reasonably should have anticipated that MacCalister posed a danger to other customers ….

NEXT: Be Who You Are, Love Who You Want

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  1. Where have I seen that look before? Oh yea:
    All over the media these days

    1. Grr. We need a preview function. 2nd Attempt

  2. Huh. This was apparently a woman transitioning to a man. A “duty to exclude the creepy” would have certainly have a negative effect on such people.

    1. According to current prog standards, where does this leave this wo/man? Trans are now personized, while nazis are to be de personized. S/he is apparently a trans nazi, and would s/he have a right to a wedding cake?

      1. I don’t know. I suppose this person truly identifies as a man, and perhaps identifies as a member of the master race. But trans people and Nazis are people. The law shouldn’t require people to exclude other people from their property because they act funny, and it shouldn’t require them to bake wedding cakes for others.

  3. The decision should have also mentioned the potential discrimination charges the store could have faced. For example, if they had banned her without any threatening behavior, it’s possible that the store could be held liable for sex, or disability discrimination. For example, she could claim sex discrimination because part of the reason (in the quoted description, at least) is that she wore baggy men’s clothes and had a shaved head…not typical women’s clothing (since employees wouldn’t know if she was transgender, those reasons could also be transgender discrimination). Also, since she exibited weird behavior, banning her could also be discrimination on account of perceived mental health issues (some states include perceived status and not just actual status as discrimination), AS LONG AS she didn’t pose a threat or do some other behavior that is valid grounds for banning (eg. loitering outside without buying stuff, littering, ruining products, public urination).

    1. I should have been clearer that this comment is about the store’s decision making…ie. they would be reluctant to act for these reasons. “charges” should have been “charges or lawsuit”.

  4. My first thought reading this was in terms of racial discrimination. If Ms. MacCalister were instead Black then any attempt to exclude her would be immediately framed as racial discrimination and accusations her actions are “creepy” would be framed as the store employee being racist.

    In the store’s defense there are a lot of harmless people who act in a way some consider creepy. A store which excludes people who dress strangely or aren’t openly sociable is also asking for trouble. Unfortunately, I don’t think anybody has come up with a way to predict which “creepy” people will suddenly become violent and which are truly harmless.

    1. What defines “creepy” is the question-if someone isn’t acting creepy? Where I live though, her nazi tattoos would most certainly get her banned from most places

  5. According to the opinion, the store had raised the policy issue but only at oral argument, so he decided the case strictly on foreseeability grounds – there was no evidence of violence towards other customers, and hence no duty. judge Hornby did address the issue in the footnotes. He briefly noted that finding a duty of care would raise significant policy issues regarding treatment of people with differences including “gender identity.” He said that if the case were appealed and the First Circuit chose to address the policy issue, he would recommend certifying the question to the Maine Supreme Court, as it is the sort of issue that is a quintessential policy matter which a Federal court doesn’t really have tools to decide in the first instance.

  6. Yummy. Any chance of a conjugal visit? ~:O

  7. I love greedy people who decide to try to cash in on what’s supposedly a personal tragedy by suing an innocent party because they have deep pockets.

    1. It’s the American Way.

  8. The store isn’t responsible for this, but society is. We should have told the ACLU to f*** off back in the 1970s when they brought cases that made it impossible to institutionalize people who were just creepy and weird, but hadn’t yet done anything violent. Now we have to wait until the crazy schizophrenics actually DO act it out, and this is the result.

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