Court rules for Wal-Mart after customer attacked

By Lee Dryden
BridgeTower Media Newswires
DETROIT—Wal-Mart has been granted summary judgment by federal courts following the random attack of a woman at the store.

In Sroka v. Wal-Mart Stores East, the U.S. Court of Appeals for the Sixth Circuit ruled that the store did not violate its duty to contact police even though a customer made the call to authorities.

As for an alleged missing video of the incident, the court ruled that the plaintiff forfeited her spoliation requests as they were not properly presented.

The opinion was written by Judge Eric E. Murphy, joined by Judges Raymond M. Kethledge and Karen Nelson Moore.

“Anyone who hears Michelle Sroka’s story cannot but have the utmost sympathy for her: Heading to the local Wal-Mart to buy chip dip before a Friday night get-together with friends, she found herself brutally and randomly attacked in the dairy department by an unknown assailant acting for an unknown reason,” the opinion stated. “Yet no matter which way the equities lean, our job is to impartially apply the law.”

On Sept. 12, 2014, the plaintiff walked by a man who appeared to be shopping with his family.

“Sroka did not bump this man, look at him the wrong way, or say anything to him. But, after she passed, the man said something — maybe that Sroka ‘shouldn’t be looking at him.’ When Sroka turned around, the man stood right behind her with his cane held high ready to strike,” according to the opinion. “Stepping away from this attacker, Sroka fell backward into a dairy cooler. While he stood over Sroka, the man struck her twice in the head with his cane and then punched her repeatedly anywhere he could make contact.”

The plaintiff was bloodied and bruised by the attack that lasted about a minute.

A nearby customer, James Richards, heard the commotion, checked on the plaintiff, immediately called 911, and followed the attacker through the store while relaying information to the dispatcher.

The plaintiff asserted that two Wal-Mart employees did nothing when she asked for help. She pursued the attacker into a nearby neighborhood, where she said a responding police officer directed her to stop the pursuit so he could attend to her injuries. She was taken to a hospital via ambulance.

Meanwhile, two Wal-Mart managers saw blood on the floor, learned an assault took place and that a witness had called police.

“After discussing next steps, they decided that they should call the police to verify that someone had contacted the authorities. Before they could do so, though, they spotted the police walking into the store,” the opinion stated.

An officer directed a store security employee to preserve video footage and provide a copy to police. The video showed the assailant entering and leaving the dairy aisle, but did not capture the assault as the nearest camera was blocked by a chip display.

The plaintiff sued Wal-Mart in state court about a year after the attack, alleging that the store “negligently disregarded its duty to expedite police involvement.” Wal-Mart removed the case to federal court on diversity grounds.

A magistrate judge denied the plaintiff’s motion to amend her complaint to add counts claiming that certain employees “participated in a conspiracy to allow the assailant to attack her and intentionally destroyed evidence to hide this crime.” Also denied was an amendment claiming that Wal-Mart destroyed a video of the attack.

The plaintiff cited the deposition of a co-manager who “testified (four years after the incident) that she did not ‘recall what was on the video a hundred percent,’ but ‘did see ... a customer take a bat and hit someone[,] and that was really all that I had with the camera equipment.’”

The magistrate judge stated that noted that spoliation allegations “are more appropriately made in an evidentiary motion than in a pleading.”

The U.S. District Court for the Eastern District of Michigan granted summary judgment to Walmart, reasoning that the store could not have breached its duty to reasonably expedite police involvement because authorities were called immediately.

The plaintiff challenged the district court’s conclusion that Michigan negligence law entitled Wal-Mart to summary judgment, and its failure to consider her spoliation arguments.

Citing Fultz v. Union-Commerce Assocs. (2004) and Mouzon v. Achievable Visions (2014), the circuit court stated that a Michigan negligence claim has four elements: “duty, breach of that duty, causation, and damages.”

The store did not breach its duty as no facts suggested “a risk of imminent and foreseeable harm” to Sroka before the assault and she concedes that she “felt safe” upon entering the store, the opinion stated, adding that the store’s “only duty was to expedite police involvement once it learned of the attack.”

“Because Richards called 911 and thereby ensured police involvement ‘immediately,’ Wal-Mart could not have violated its duty to call the police,” the opinion stated. “Sroka responds with the obvious point — Richards was not a Wal-Mart employee and no Wal-Mart employee ever called police. But no Wal-Mart employee witnessed the assault, so Richards’s 911 call came before its employees could act.”

As for the two other employees that the plaintiff claimed ignored her pleas for help, the court ruled that the store did not breach its duty simply because those workers could have verified sooner that police has been called.

The plaintiff spent “significant time on a spoliation argument, asserting that the district court should have sanctioned Wal-Mart for destroying the video showing the attack.” But the court stated it has no decision or fact-findings to review as the plaintiff “failed to follow the magistrate judge’s instructions to file a sanctions motion based on the allegedly missing video.”

“Did a video of the attack exist? Did Wal-Mart destroy it? We do not know. While the magistrate judge appeared skeptical, Sroka never sought spoliation sanctions to give the district court an opportunity to find facts,” the opinion stated.


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