The Case of the Angry Unidentified Customer

♪♬ It’s the most wonderful time of the year
With the kids jingle belling
And everyone telling you “Be of good cheer”
It’s the most wonderful time of the year          ♪♬

“This case demonstrates the dangers of the cut-throat arena of after-Christmas bargain shopping.” So began the Court of Appeals of Tennessee’s opinion in Wells v. J.C. Penny Co. (Perhaps it’s also a prescient warning—a caveat emptor as it were—as to potential jeopardies of pre-Christmas sales.) Ruth Wells scooped up ten collectible crystal figurines at Penny’s.  Employees put them behind the counter while Wells continued shopping.  When she returned, all but two of the figurines—two bears—were missing. Wells grabbed the bears, but “an unidentified female customer cursed her ... Get your g@&&#$* hands off my ƒ&¢%*#$ bears.” Wells did not let go of the bears, but on two separate occasions asked an employee to call for security and management to settle the issue of who would be allowed to purchase the bears. The employee did nothing. Wells asked the unidentified customer, “What’s your name?” The response:  “ƒ&¢% you.”  Wells: “That’s a really nice name. Do you use that every day?” The customer grabbed Wells’s wrist, causing one of the bears to fall to the floor where it met a shattering demise.  (The court observed that “after-Christmas bargain shopping had somewhat diminished the unidentified customer’s Christmas spirit.”) At some point security showed up.  And the unidentified customer—this thus literally adding insult to injury—was permitted to buy the sole remaining bear.

Mrs. Wells and husband (Raymond) sued Penny’s for, respectively, $550,000 (injuries to rotator cuff, shoulders, neck, back) and $50,000 (loss of consortium, etc.).

Penny’s successfully moved for summary judgment. Mrs. & Mr. Wells appealed. Lost. The court explained that while a business ordinarily has no duty to protect customers from the criminal acts of third parties on its premises, a duty arises if the business knows, or has reason to know, that criminal acts are reasonably foreseeable. However, the court rejected Mrs. Wells’ argument that her requests for security or management showed foreseeability. Said the court, The reason for her requests “was not ... fear for her safety, but ...  her desire to have the manager or security guard decide ... [who] would be permitted to purchase the ... bears. ... Wells’s actions do not indicate that she feared a physical assault.” When Wells’s request for the unidentified customer’s name spawned “yet another expletive, Wells’s response was cavalier, and she still did not let go of the figurines and leave the vicinity. Wells’s actions ... indicate that neither she nor the Penney’s employees foresaw that the customer would assault Wells.”

Happy Christmas to all and to all a good night.