Nearly two years have passed since the South Carolina Supreme Court adopted a new test to gauge the liability of business owners and landlords when someone is hurt on their property. It now appears that a local federal court has put the test to use for the first time.
When he ruled earlier this month that the plaintiffs in a premises liability suit stemming from a purse snatching at a Kmart could survive summary judgment, U.S. District Court Judge R. Bryan Harwell in Florence applied the so-called “balancing approach” that was first adopted by the state’s high court in 2011’s Bass v. Gopal.
Under the test, the “more foreseeable a crime, the more onerous is a business owner’s burden of providing security,” the Supreme Court stated in its decision. The scale weighs the likelihood of a crime occurring on a property against the safety measures that the owner took to keep visitors safe.
The Bass court upheld the dismissal of a suit alleging that a motel was liable to a guest who was shot just outside his room during a botched robbery. The decision hinged on the guest’s failure to show that a sufficient number of crimes had occurred on the property to make his shooting foreseeable.
In an amicus brief, Andrew F. Lindemann of Davidson & Lindemann in Columbia had urged the court to adopt the balancing test and finally give landlords and business owners clarity about their level of liability.
“Before, they feared that if an injury happened on their property and they could have avoided it they would be liable under the strict liability standard,” he said. “Our feeling was that this [balancing test] would give owners a better guide on what to do.”
Lindemann and several others who spoke with Lawyers Weekly believe that Harwell became the first judge in the state to apply the test when he allowed a lawsuit to move forward against Kmart and its landlord on July 3 in Fagnant v. Johnson.
Mary Fagnant and Brenda Williams sued after they were injured while trying to stop a purse snatcher identified by the court as Kathryn Johnson from leaving a Kmart store in Myrtle Beach. (Johnson was identified as “Katherine” in state prison records.)
Johnson had tried to wrestle away Williams’ purse while she was using a pay phone near the store’s entrance. Johnson then walked deeper into the building and grabbed Fagnant’s purse. As she sped away from the store in her car, Johnson hit the women and dragged Williams, who was severely injured, according to local news reports at the time.
To satisfy the foreseeability prong of the balancing test, the plaintiffs’ attorney, Ralph J. Wilson Jr. of Conway, cited police records detailing hundreds of incidents at the store and its parking lot in the years before his clients encountered Johnson.
“Foreseeability is a huge part of this test. If it’s not foreseeable then you’re not going to be able to recover or have liability,” he said. “And the other thing you had here was absolutely no security on duty at the time that this incident occurred.”
Also, a Kmart employee had watched Johnson tussle with Williams over the purse but instead of calling 911 the employee tried to reach the store’s loss prevention office over the phone and loudspeaker, but received no response.
That employee testified that had she called 911 the police probably would have reached the store in time to keep Fagnant and Williams from being hurt. And a security expert for the plaintiffs said the incident would have been avoided if the store had posted a guard in the parking lot.
Harwell concluded that the plaintiffs had “presented sufficient evidence, in light of the scope of duty under Bass, to dispute the facts material to their claims of negligence by Kmart.”
Attorneys for Kmart and its landlords did not respond to interview requests. Johnson is serving a 12-year sentence in state prison.
The 23-page decision is Fagnant v. Johnson (Lawyers Weekly No. 002-103-13). A digest of the ruling can be found at sclawyersweekly.com.
Follow Phillip Bantz on Twitter @SCLWBantz.