Duty to Protect Customers Requires Reasonable Foreseeability of Harm

By:  Amy L. Elson

On February 28, 2019, the Indiana Court of Appeals issued an opinion confirming that a retail store’s duty to protect its customers is limited to protecting customers from harms that are reasonably foreseeable. The Indiana Court of Appeals found that a retail store’s development of an Active Shooter Protocol memo did not make the unfortunate occurrence of an active shooter situation reasonably foreseeable to the retail store.  In Rose v. Martin’s Super Markets, L.L.C., 18A-CT-1654, the Court of Appeals declined to find that Martin’s Super Markets, L.L.C. (“Martin’s”) owed a duty to a customer to protect her from an active shooter situation. 

Rachelle Godfread was a customer in Martin’s Super Market on January 15, 2014, when an armed man pulled a gun from beneath his coat and shot and killed Ms. Godfread.  Ms. Godfread’s estate filed a negligence action against the store, alleging that the store owed her a duty to protect her from an active shooter situation, which the Estate argued was reasonably foreseeable.  In order to prevail on its negligence claim against Martin’s, the Estate was required to prove that 1.) Martin’s owed a duty to Godfread; 2.) Martin’s conduct breached that duty; and 3.) Martin’s breach was the proximate cause of Godfread’s death.  The Estate asserted that it was reasonably foreseeable that an active shooter situation could occur in the store, and in support of this assertion, it offered evidence that Martin’s corporate office circulated an “Active Shooter Protocol” memo in 2012. 

Martin’s responded to the Estate’s claim by filing a motion for summary judgment asserting that it owed Ms. Godfread no duty because the shooting that took place in its store was not reasonably foreseeable.  To support this argument, Martin’s drew upon the Indiana Supreme Court’s decision in Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 392 (Ind. 2016), in which the Court determined that a shooting inside a neighborhood bar was not foreseeable as a matter of law.  The trial court entered summary judgment for Martin’s, finding that a sudden shooting inside a supermarket, like a shooting inside a neighborhood bar, was not foreseeable as a matter of law (for a discussion of other recent cases involving shootings at commercial establishments, review Sean Devenney’s May 2018 post and Alyssa Hughes’ October 2018 post).  Ms. Godfread’s estate appealed the trial court’s decision. 

The Court of Appeals affirmed the trial court’s entry of summary judgment for Martin’s, stating that “[u]ltimately, it was not reasonably foreseeable for a grocery store to expect death by gunfire to befall a customer and therefore, the Store had no duty to Godfread prior to the shooting.”  In its analysis, the Court noted that Martin’s had no specific reason on the night of the shooting to foresee the ultimate course of events.  The shooter walked through the store for forty minutes and did nothing suspicious during that time to make his actions foreseeable.  Furthermore, it was not reasonably foreseeable that a shooting would take place at a grocery store.  The Court acknowledged the sad reality of shootings in today’s world, but stated that this reality “…does not mean that every store, yoga studio, and movie theatre is required to provide protection for its patrons at all times on the chance that a madman will choose to open fire in its public space….” 

Importantly, the Court of Appeals determined that Martin’s circulation of the 2012 Active Shooter Protocol memo did not make the unfortunate occurrence of that scenario in one of its stores reasonably foreseeable to the store, and, thus, circulation of this memo did not create a legal duty for Martin’s to protect its customers from the harm of an active shooter situation.  The Court stated that this type of broad-level, proactive preparation for such a possibility does not make any given incident foreseeable.  The Court of Appeals’ decision in Rose v. Martin’s Super Markets, L.L.C., likely ensures that retail stores in Indiana that elect to develop, circulate, and implement general active shooter protocols and policies are not, by virtue of these broad policies alone, subjecting themselves to the imposition of an additional legal duty to protect customers from an active shooter situation.  In short, general preparation for the possibility of responding to an active shooter situation does not make the occurrence of any given event reasonably foreseeable for the retail store.