RENDERED: FEBRUARY 16, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0288-DG
WALMART, INC.; WAL-MART ASSOCIATES, APPELLANTS
INC.; WAL-MART REALTY COMPANY; WAL-
MART STORES, EAST, LIMITED
PARTNERSHIP; WAL-MART STORES, INC.;
WAL-MART TRS, LLC; WSE MANAGEMENT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2020-CA-0679
FAYETTE CIRCUIT COURT NO. 18-CI-00206
LEIGH ANN REEVES APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REINSTATING
Wal-Mart appeals to this Court from the Court of Appeals decision
reversing the trial court’s judgment. Wal-Mart argues that the Court of Appeals
improperly interpreted this Court’s precedent on premises liability for third-
party criminal acts. For the reasons stated below, we reverse the Court of
Appeals and reinstate the trial court’s judgment.
I. BACKGROUND
After midnight on March 22, 2017, Leigh Ann Reeves walked out of the
Wal-Mart on Nicholasville Road in Lexington, Kentucky. Reeves reached her
vehicle safely, but when she sat down in her driver’s seat, she was attacked by
two unknown men attempting to rob her while a third unknown man waited in
their getaway car. She was struck twice before a bystander interceded, at
which point her assailants fled. After this attack, Reeves filed suit against Wal-
Mart for failing to protect her from the assault and robbery. Reeves alleged that
Wal-Mart was negligent by not having a security presence outside the store to
protect patrons from third-party criminal acts.
After some discovery, Wal-Mart moved for summary judgment on
Reeves’s claims. To the trial court, Reeves produced police reports from the
Nicholasville Road Wal-Mart as well as Wal-Mart’s own CAP Index, Inc.
Crimecast Report to show that Wal-Mart had a duty to protect Reeves from
third-party criminal acts.1 However, none of the records produced by Reeves
indicated similar crimes close in time to her attack. The trial court therefore
granted Wal-Mart’s motion for summary judgment. The trial court found that
Reeves “has failed to prove that other alleged criminal acts at or near the
Nicholasville Road Wal-Mart were of sufficient character and number to make
this particular act reasonably foreseeable to Wal-Mart.” Accordingly, as a
matter of law, the trial court concluded that “Wal-Mart owed [Reeves] no duty”
and dismissed Reeves’s claims with prejudice.
1 CAP Index, Inc. “provides innovative solutions for companies and government
agencies looking to minimize losses,” including those due to general liability and
crimes against persons and property. CAP Index, Inc. is used by companies to predict
the likelihood of crime in a given area using historic statistical data. Companies then
use that prediction to determine what safety measures to implement.
2
Reeves appealed the trial court’s order to the Court of Appeals, which
reversed the decision of the trial court. Wal-Mart sought discretionary review
from this Court, which we granted.
II. ANALYSIS
On appeal to this Court, Wal-Mart argues that the Court of Appeals
improperly extended our holding in Shelton v. Kentucky Easter Seals Society,
Inc., 413 S.W.3d 901 (Ky. 2013) and, in doing so, incorrectly reversed the trial
court’s grant of summary judgment. We agree.
“The standard of review on appeal of a summary judgment is whether the
circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.”
Pearson ex rel. Trent v. Nat’l Feeding Sys., Inc., 90 S.W.3d 46, 49 (Ky. 2002). In
ruling on a motion for summary judgment, the Court is required to construe
the record “in a light most favorable to the party opposing the motion . . . and
all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr.,
Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted).
In general, negligence claims require proof that the defendant owed the
plaintiff a duty, that the defendant breached that duty, and that the plaintiff
suffered a harm that was proximately caused by the breach. Illinois Cent. R.R.
v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967) (citations omitted). For premises
liability cases involving third-party criminal acts, the owner of a premises has a
duty to protect patrons from third-party acts if he or she “knows of activities or
conduct of other patrons or third persons which would lead a reasonably
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prudent person to believe or anticipate that injury to a patron might be
caused,” (in other words, is foreseeable), and if he or she can reasonably
safeguard against them. Napper v. Kenwood Drive-In Theatre Co., 310 S.W.2d
270, 271 (Ky. 1958).
The trial court relied on this rule from Napper to determine that because
the third-party criminal act at issue in this case was not foreseeable, Wal-Mart
had no duty to protect Reeves from it. In reversing, the Court of Appeals
applied this Court’s holding in Shelton v. Kentucky Easter Seals Society, Inc.,
413 S.W.3d 901, which had never been extended by this Court beyond open-
and-obvious conditions. In Shelton, this Court decided that for open-and-
obvious premises liability cases, the foreseeability analysis formerly conducted
under both the duty and breach elements of a negligence claim would instead
apply only to the breach element. Id. at 914 (citation omitted) (“[T]he
foreseeability of the risk of harm should be a question normally left to the jury
under the breach analysis.”). In so holding, this Court reasoned that owners of
premises always have a legal duty due to “the landowner-invitee relationship
and general duty of reasonable care applicable to landowners.” Id. at 908.
Therefore, instead of starting with whether harm caused by an obvious hazard
was foreseeable enough to create a duty, the “analysis will almost always begin
with the breach question, given the broad sweep of the general duty of
reasonable care.” Id.2 The Shelton rule is consistent with the Restatement
2 The Court in Shelton redefined the open-and-obvious negligence analysis as
the following:
4
(Second) of Torts (1965), § 343A, “Known or Obvious Dangers,” upon which
this Court in part relied. In Shelton, therefore, the Court shifted any
foreseeability (or fact-dependent) analysis in open-and-obvious cases outside of
the duty analysis. Id.
In the case at bar, the Court of Appeals held that Shelton’s holding for
open-and-obvious conditions was intended to be a sea change in negligence
cases at large. The Court of Appeals noted that this Court had yet to extend
Shelton’s holding beyond open-and-obvious cases. Nevertheless, the Court of
Appeals determined that our Court intended for Shelton to apply to all
negligence claims. By extending Shelton, the Court of Appeals reasoned that
Wal-Mart, as a matter of law, always has a duty to safeguard all invitees from
harm on its property, regardless of the foreseeability of the danger that may
befall them. For that reason, the Court of Appeals held that the trial court
erred by finding “no duty” and remanded for the trial court to conduct the
foreseeability analysis within the element of breach.
Accordingly, the analysis we now apply proceeds this way:
1) Along with the defendant’s general duty of care, the defendant’s
duty is outlined by the relationship between the parties. E.g., an invitor
has a duty to maintain the premises in a reasonably safe condition in
anticipation of the invitee’s arrival.
2) Was the duty breached?
AND
3) Is the defendant’s liability limited to some degree by the
plaintiff’s comparative negligence?
Id.
5
This Court has never explicitly or definitively extended Shelton outside of
the open-and-obvious context. While in Carter, this Court wrote “Although
Shelton involved an indoor, man-made hazard, its rule is generally applicable to
all negligence cases,” that statement was mere dicta. Carter v. Bullitt Host, LLC,
471 S.W.3d 288, 297 (Ky. 2015). In Carter, this Court extended the holding in
Shelton from only man-made open-and-obvious cases to naturally occurring
open-and-obvious cases. Id. So, we continued to restrain Shelton to open-and-
obvious cases.
Shelton’s cabining of foreseeability to a breach analysis is thus limited
only to open-and-obvious cases. Even if it were to extend beyond open-and-
obvious cases, however, it certainly could not extend so far as cases involving
third-party criminal actions. Landowners cannot control the actions of third
parties on their property, making these cases markedly different from those
involving the man-made or naturally occurring aspects of a property capable of
maintenance or curative measures.
Additionally, extending Shelton to third-party criminal activity would
create an economically untenable reality for business owners and, ultimately,
their customers. A small business in a transitioning or high crime
neighborhood should not have to bear the costs of an ever-present duty to
protect patrons. Inevitably, such costs will be borne out in consumer prices,
exacerbating economic inequalities already present throughout the
Commonwealth. See Shelton, 413 S.W.3d at 919 (Cunningham, J., dissenting)
(“[If hospitals always have a duty even where harm is not foreseeable,] [t]he cost
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of health care . . . will be affected as insurance premiums rise. Naturally, this
cost is going to be passed to the consumer.”). We are wary to discourage
business development and consumer access in our communities which may
already be struggling.
In the case at bar, the Court of Appeals erred when it held that, pursuant
to Shelton, determining what constituted a duty of reasonable care in the
context of third-party criminal acts did not require a foreseeability analysis.
The trial court was correct in its application of Napper and its progeny. To
reiterate: a landowner has a duty to protect patrons from third-party acts only
if he or she “knows of activities or conduct of other patrons or third persons
which would lead a reasonably prudent person to believe or anticipate that
injury to a patron might be caused,” and if he or she can reasonably safeguard
against them. Napper, 310 S.W.2d at 271. As with the restriction of
foreseeability in open-and-obvious cases, this rule for third-party acts is
consistent with the rule offered in the Restatement (Second) of Torts (1965) §
344, which states:
A possessor of land who holds it open to the public for entry for his
business purposes is subject to liability to members of the public
while they are upon the land for such a purpose, for physical harm
caused by the accidental, negligent, or intentionally harmful acts
of third persons or animals, and by the failure of the possessor to
exercise reasonable care to
(a) discover that such acts are being done or are likely to be
done, or
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.
Comment (f) following this rule states that “[s]ince the possessor is not an
insurer of the visitor’s safety, he is ordinarily under no duty to exercise any
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care until he knows or has reason to know that the acts of the third person are
occurring, or are about to occur.” The Restatement (Second) thus mirrors this
Court’s holding in Napper, which remains good law under our holding today.
Because the trial court applied the correct law below, and because no
material facts are at issue, we undertake a de novo review of the trial court’s
grant of summary judgment. Stilger v. Flint, 391 S.W.3d 751, 753 (Ky. 2013)
(citations omitted). Whether Wal-Mart had a duty to protect Reeves from the
third-party criminal act that befell her hinges upon whether such a crime was
foreseeable to Wal-Mart. Napper, 310 S.W.2d at 271. Whether that crime was
foreseeable, in turn, depends upon whether the crime could have been
anticipated by the property owner. See id. For example, if crimes of a
sufficiently similar kind occurred sufficiently close in time to the one at issue,
then the crime at issue would have been foreseeable. See id.
Based on the evidence admitted, Wal-Mart could not have anticipated
this third-party criminal act occurring against Reeves on its premises. Here,
Reeves needed to provide evidence that a third-party criminal act involving
attempted robbery and assault were reasonably foreseeable to Wal-Mart.
Reeves provided only two examples of crimes of a similar nature to the one at
issue in this case, one from 2001 and one from 2012. Both instances were
purse snatchings occurring on the property. All other instances reported were
either between parties known to each other and involved in a dispute, or
between loss prevention staff and thieving customers, or were crimes that were
initiated off Wal-Mart’s premises.
8
Reeves did not provide evidence that the two purse snatchings, one of
which occurred over 15 years before her own incident, involved assaultive
behavior. So, even to the extent that the instances were similar, they failed to
truly compare to the crime at issue in this case. Additionally, because they
occurred so distantly in time (both from each other and from Reeves’s incident),
we cannot hold that they established a pattern that could lead Wal-Mart to
anticipate this kind of crime.
The CAP Index, Inc. Crimecast Report is similarly unavailing. The report
indicates that Fayette County has a higher-than-average crime rate, including
for assault and robbery. However, it provides no statistical information specific
to Wal-Mart’s actual premises. In fact, in a mapped diagram of the six-mile
radius around the Nicholasville Wal-Mart,3 the report indicates that although
downtown Lexington (contained within the radius) has a higher-than-average
crime rate, the location of the Nicholasville Wal-Mart itself has a lower-than-
national-average crime rate. Because foreseeability is specific to the premises
at issue, this report shows, if anything, that Wal-Mart could have anticipated
even less crime than surrounding businesses. Because this report and the
history of crime presented by Reeves do not indicate that random, night-time
parking lot assault and robbery are foreseeable to Wal-Mart, Wal-Mart had no
duty to Reeves to protect her from such crimes. As such, Wal-Mart was
3 It appears that the six-mile radius analysis is the basis for the Nicholasville
Wal-Mart’s “CAP Index Score” at 191, which is higher than state and national averages
for crime. However, as explained above, the scoring mechanism is over-inclusive for
the purposes of our foreseeability analysis.
9
“entitled to a judgment as a matter of law,” and summary judgment was
appropriate. Pearson ex rel. Trent, 90 S.W.3d at 49.
III. CONCLUSION
Business owners do not have a universal duty to protect all visitors
against all third-party acts. Instead, trial courts must consider whether such
acts are foreseeable when determining whether a business has a duty to
protect against those acts. Such an analysis is the only means by which a
landowner can justly be held accountable for harm caused by people out of
their control on their property.
In the case at bar, the trial court heard evidence that the kind and
volume of third-party criminal acts on Wal-Mart’s premises in the past did not
create a duty of reasonable care to protect Reeves against the crime she
suffered. Since the third-party criminal acts were not reasonably foreseeable,
the trial court did not err in granting Wal-Mart’s motion for summary
judgment.
Accordingly, we reverse the Court of Appeals and reinstate the trial
court’s judgment.
Bisig, Conley, Keller, Lambert, Nickell and Thompson, JJ., sitting. All
concur. VanMeter, C.J., not sitting.
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COUNSEL FOR APPELLANTS:
Kyle Ryan Bunnell
Christopher Rennie Cashen
Dinsmore & Shohl LLP
COUNSEL FOR APPELLEE:
Stephen M. O’Brien
David Seth Coomer
O’Brien Batten & Kirtley, PLLC
COUNSEL FOR AMICUS, KENTUCKY DEFENSE COUNSEL, INC.:
Ryan Daniel Nafziger
Phillips Parker Orberson & Arnett, PLC
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