Many Americans think of police protection as a basic right. But do businesses have that same right to police assistance? Is there a point at which businesses have a responsibility to handle criminal issues internally?
This was the topic of discussion for Craig Ashton, Ed Schade, and Tim Hodson on a recent episode of All Things Legal, inspired by an Inside Edition story about Walmart stores across the country that are the site of hundreds and even thousands of police visits per year.
We’ll let Craig explain…
Craig: “Let’s start by talking about what’s going on at Walmart. The story starts out, ‘Chaos at Walmart stores across the country has gotten so bad that the mayhem is spilling out into the parking lots… Last year in Jacksonville, Florida, there were 5,298 calls involving 15 Walmart stores. Since 2015, police in Chicopee, Massachusetts, have received 1,294 calls about alleged incidents at the town’s only Walmart.’
“There’s a little town called Lakeside, Colorado. They only have 12 police officers, and they’ve had 1,270 calls out to Walmart [since 2015], and the sheriff there says, ‘There are days that I run out of handcuffs.’ … Walmart says customer safety and reducing crime is a top priority… ‘We’ve made additional investments in people and technology to support our stores, as well as increased our outreach to law enforcement across the country… We are pleased with the early results in many communities and are seeing firsthand reduction in calls for police service.’
“Apparently what happens is that there’s a lot of shoplifting, or people are getting assaulted out in the parking lot and having things stolen from them.”
As it turns out, businesses can be found responsible for crimes that occur on their premises.
Craig: “So, there’s a famous case that was in San Diego where, ultimately, some people were killed at a McDonald’s. And usually the law is remiss in holding an entity responsible for the intentional act of a third party. But what happened in the McDonald’s case in San Diego, there was a lot of gang activity, and [relatives of the victims filed a personal injury lawsuit alleging] that McDonald’s owed a duty, based upon all of the activity that was going on, so they were on notice, and therefore they owed a duty of reasonable care, they didn’t provide reasonable security, and therefore they were responsible for the personal injury, even though they were shot by somebody who wasn’t employed by McDonald’s.”
Unfortunately, their case was dismissed, and in 1987, a California appeals court supported the dismissal, saying, “On this record, we conclude plaintiffs have failed to establish any triable issue that there was a causal nexus between McDonald’s nonfeasance, if any, and the resulting injuries. Any reasonable protective measure such as security cameras, alarms and unarmed security guards, might have deterred ordinary criminal conduct because of the potential of identification and capture, but could not reasonably be expected to deter or hinder a maniacal, suicidal assailant unconcerned with his own safety, bent on committing mass murder.”
Essentially, because McDonald’s didn’t contribute to the state of their local area, they weren’t responsible for what went on there, even when it spilled into their restaurant.
However, a court could view Walmart in a different light, if they find that Walmart is creating an ‘attractive nuisance.’
While McDonald’s clearly didn’t do anything to encourage gang activity around their restaurants, Craig explained that Walmart’s situation is different: “…There’s an adage in the law. If you have a swimming pool and it’s unfenced, and you know there’s lots of kids around and somebody drowns, [because you should have known the pool was] going to entice children to come into your backyard, you could bear responsibility because that’s what’s called an ‘attractive nuisance.’”
Craig: “And that may be what’s going on with Walmart. But Walmart really, if [that] many calls are happening… if you think about what happens when people go out and they get lost in the forest and then there’s $100,000 of basically rescue cost, sometimes they can be responsible for that. So one of the arguments I would make, if I was this municipality with 12 police officers, I’d say, ‘Look man, you guys are not doing a very good job [of securing your business]. We’ve been out here almost 1,300 times in the last year. Now you’re going to have to start paying for our law enforcement because you’re not adequately providing security.”
Ed: “If there were that many calls going out, I would think that they may be able to do something where they could back-charge Walmart for all of these services that they’re not taking care of internally.”
Tim: “Yeah, [but securing] the parking lot [where many reported crimes take place] is one issue, because it’s hard for Walmart to control. People are perusing their parking lots… you can only have so many cameras… but if [police officers] have to keep getting called out for shoplifting, I think that’s a situation where they could be held responsible, because if they can’t control internally what’s going on with their own loss prevention, and law enforcement has to keep getting involved, then yeah, I think at that point you might have an argument that they should be responsible for some of the funding for the police department.”
The team found itself a bit divided about whether McDonald’s bore any responsibility for failing to prevent particularly violent crimes, such as one incident in which a customer was struck with a baseball bat.
Tim: “There’s nothing you can do about that, that’s just a maniac. That could have happened anywhere. That’s not Walmart’s problem.”
Craig: “Well, it depends. If you look at what’s going on in Jacksonville, Florida. I mean, almost 5,300 calls between 15 Walmarts… The point is, at some point, if you know this is going on and you’re on notice, you can’t just say, ‘Hey, once they get out of the store, it’s every man for himself,’ a Mad Max situation. I think I would make a strong argument and say, ‘Look, you’re on notice. You understand that this is happening, just like in the McDonald’s case. The intentional acts of a third party are now going to be imputed upon you, because you know it’s basically a war zone in your parking lot where people are fighting over the ammunition they just bought and… Chinese-made tutus.”
Ed: “If… the police were coming to your house every day to do something at your house, at some point in time it would become a public nuisance, and they’re going to start charging you. That’s what they’re going to do to Walmart.”
Frankly, it’s a matter of when—not if—Walmart will face legal action, either from a customer filing a corporate liability case, or a city wanting to recoup the cost of protecting Walmart’s customers.