No Duty to Exclude the Creepy

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

[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 ….