Roger L. McClung v. Wal-Mart Stores, Inc.

SILER, Circuit Judge,

concurring in part and dissenting in part.

I concur with the majority’s conclusions on the admissibility of the statements made by Joseph Harper, the assailant. Thus, I agree that his statement in court was not admissible but that his first two statements made to investigators may be admissible because they are statements against a penal interest, subject to the determination by the trial court that the two statements were reliable.

However, I depart from the majority in its determination that the district court erred in finding that Wal-Mart could not be liable unless the jury found that the victim, Dorothy McClung, was abducted from the Wal-Mart section of the Delta Square Shopping Center parking lot. Admittedly, the district court relied upon a worker’s compensation case, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn.1989), for its definition of “premises.” That, obviously, is not strong authority in a case such as this. As in most states, Tennessee courts construe worker’s compensation statutes liberally, with any reasonable doubt as to whether an injury was caused by work is to be resolved in favor of granting relief to the injured employee. See Reeser v. Yellow Freight System, Inc., 938 S.W.2d 690, 692 (Tenn.1997) (‘Worker’s Compensation Act must be liberally construed and any reasonable doubt as to whether an injury was caused by work, must be resolved in favor of the employee.”); Harman v. Moore’s Quality Snack Foods, Inc., 815 S.W.2d 519 (Tenn.Ct.App.1991) (“In keeping with the liberal construction accorded the Worker’s Compensation statute, the term ‘accident arising out of and in the course of employment’ has been construed by our courts beyond the limited language contained in the statute.”). Therefore, a worker’s compensation definition of premises would seem to encompass more territory than would a definition based upon general tort liability.

Moreover, I disagree with the majority that McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn.1996), stands for the proposition that a tenant in a large shopping center owes a duty of care to all of its customers who might park at the far end of a common parking lot serving multiple tenants of the shopping center. I realize that the court in McClung set out a new liability standard for store owners, but I do not think that it extended liability as broadly as the majority feels that it did. The strongest language in McClung to support Wal-Mart’s liability is where the court indicates that a business has “a duty to take reasonable steps to protect customers ... if the business knows, or has reason to know,., that criminal acts against its customers on its premises are reasonably foreseeable, ...” Id. at 902. This language does not address the key issue, which remains, and which was not answered in McClung: what are the “premises”? In my opinion, there is no Tennessee authority as to this issue. I do not think that Tennessee courts would hold every tenant liable in a mega shopping center for criminal acts by third parties committed at the far end of the parking lot against one of its customers. Therefore, in a case such as this, where the place of abduction is unclear except that it likely occurred in the common parking lot, recourse may be sought against the landlord, the mall owner. *1018McClung sued the landlord, as related in footnote 2 of the majority opinion, and obtained a judgment against it. Accordingly, I would uphold the decision by the district court that the plaintiff must show that McClung was abducted from the Wal-Mart portion of the Delta Square Shopping Center parking lot before Wal-Mart could be held liable.

On the third point, whether the district court erred in concluding that the evidence presented by McClung did not present a genuine issue of material fact for a jury to consider against Wal-Mart, I would uphold the decision by the district court, if my conclusion, that Wal-Mart could only be liable if McClung had parked in its portion of the parking lot, is the law of the case. On the other hand, if the majority view is the prevailing one, then the majority is correct that there would be a genuine issue of material fact for the jury to consider as to whether McClung was abducted from the Delta Square Shopping Center parking lot. It seems obvious that she was abducted from the larger parking lot, but that may be up to the jury to determine.