                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                      June 6, 2002 Session

            RUTH CAROLYN WELLS and RAYMOND L. WELLS,
                  Individually and as Husband and Wife
                                    v.
                     J.C. PENNEY COMPANY, INC.

                      Appeal from the Circuit Court for Shelby County
                      No. 304583 T.D.-6   George H. Brown, Jr., Judge



                    No. W2002-00102-COA-R3-CV - Filed October 9, 2002


This is a premises liability case. The plaintiff customer was shopping in a retail store. After a
dispute with an unidentified customer over which customer would purchase certain merchandise,
the unidentified customer grabbed the plaintiff’s wrist. The plaintiff customer sued the retail store,
asserting that the store had a duty to protect her from the customer’s assault. The store moved for
summary judgment, which the trial court granted. We affirm, finding that the assault was
unforeseeable, and therefore the retailer did not have a duty of care to protect the customer from it.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

HOLLY K. LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

David F. Kustoff and James S. Strickland, Memphis, Tennessee, for appellants, Ruth Carolyn Wells
and Raymond L. Wells, Individually and as Husband and Wife.

G. Ray Bratton and Gregory W. O’Neal, Memphis, Tennessee, for appellee, J.C. Penney Company,
Inc.

                                             OPINION

        This case demonstrates the dangers of the cut-throat arena of after-Christmas bargain
shopping. On January 20, 1999, Plaintiff/Appellant Carolyn Wells (“Wells”) was shopping at a J.C.
Penney’s (“Penney’s”) department store. Wells decided to purchase some Christmas clearance
merchandise, namely, collectable crystal figurines. After she gathered approximately ten of the
crystal figurines, two Penney’s sales associates offered to place them on a shelf behind the counter
while Wells continued shopping. When Wells returned to make her purchase, the crystal figurines
were still on the shelf behind the counter. Penney’s cash registers, however, were temporarily not
functioning, so Wells went to another department in the store to continue shopping. When she came
back to purchase the crystal figurines, eight of them were missing and the remaining two, which were
crystal bears, were at the front counter. Wells asked about the missing crystal figurines and was told
that they had been returned to the sales floor. After Wells put her hands on the two remaining crystal
bears, an unidentified female customer cursed her and ordered her to “get your g--d--- hands off my
f-----g bears.” Wells did not let go of the bears, but asked a Penney’s employee to call for security
and management. The employee did not respond.

       The customer walked toward Wells, with Wells still holding the bears. Wells again asked
the Penney’s employee to call security and management to settle the issue of who would be allowed
to purchase the bears. Again, the Penney’s employee did not respond. Wells tried to explain her
view that, since neither she nor the angry customer had yet purchased the crystal bears, the store
manager should decide which would be permitted to purchase them. Wells then asked the angry
customer her name. The customer responded, “F--- you.” Wells replied, “That’s a really nice name.
Do you use that every day?” She did not let go of the two bears. The angry customer then reached
across Wells and grabbed her wrist, causing one of the collectable crystal bears to fall to the floor
and shatter.1

        At this point, at Wells’s request, the Penney’s employee called the security guard. After the
security guard arrived, the angry unidentified customer was permitted to purchase the remaining
unbroken crystal bear. Wells apparently left the Penney’s store with no crystal bears.

         Thereafter, Wells and her husband, Raymond L. Wells, filed suit against J.C. Penney
Company alleging common law negligence for failure to properly operate and maintain the store, and
for failure to take reasonable steps to protect its customers and visitors when it knew, or had reason
to know, that criminal acts against its customers and visitors on its premises were reasonably
foreseeable. Wells sought $550,000 in damages.2 Her husband, Raymond L. Wells, sought $50,000
in damages for deprivation of Mrs. Wells’s earnings, society, services, company, and consortium.
Penney’s filed an answer, and then a motion for summary judgment. The trial court, without
elaborating on its reasoning, granted Penney’s motion for summary judgment. From this order,
Wells now appeals.

       On appeal, Wells argues that Penney’s was not entitled to judgment as a matter of law
because Wells’s requests for security and management made the harm to Wells foreseeable such that
Penney’s had a duty to prevent the harm. Therefore, Wells contends, summary judgment was
improper.


         1
          Although it does not bear on the issues on appeal, the record is not crystal clear on the disposition of the
rema ining eight figurines.

         2
           In discovery resp onses, W ells claimed injuries to her rotator cuff, shoulders, neck, and back. She said that she
incurred medical expenses of almost $16,000, and had had surgery on her neck and her shoulder. Her physician gave
her a disability rating of 15% to the whole body and 1 0% to the up per extremity. Wells also sought more than $12,000
in lost wages, and claimed that she was suffering from po sttraumatic stress disorder, for which she was taking medication.

                                                            -2-
        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993),
the Tennessee Supreme Court stated:

        Once it is shown by the moving party that there is no genuine issue of material fact,
        the nonmoving party must then demonstrate, by affidavits or discovery materials, that
        there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05
        [now Rule 56.06] provides that the nonmoving party cannot simply rely upon his
        pleadings but must set forth specific facts showing that there is a genuine issue of
        material fact for trial.

Id. at 211 (citations omitted).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court’s grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the
trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate
of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        Because Wells sued Penney’s under a theory of common law negligence, the determinative
issue on appeal is whether Penney’s owed Wells a duty to protect her from the physical assault by
the unidentified customer. Under Tennessee law, to prove a claim for negligence, the plaintiff must
prove (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached that
duty; (3) that the plaintiff sustained an actual loss due to the breach; (4) that the defendant was the
actual cause of the loss to the plaintiff; and (5) that the defendant was the proximate cause of the loss
to the plaintiff. See Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998). If the defendant does not
have a duty to protect the plaintiff from the loss, there can be no action against the defendant for
negligence.

       The duty of a merchant to protect a customer from the criminal acts of a third party is
discussed in McClung v. Delta Square Limited Partnership, 937 S.W.2d 891 (Tenn. 1996). In
McClung, the plaintiff’s wife was abducted at gunpoint from a Wal-Mart parking lot. Id. at 893-94.
She was subsequently raped and murdered by her kidnapper. Id. at 894. The plaintiff sued the
defendant Wal-Mart, alleging that Wal-Mart had a duty to protect his wife from the criminal acts of




                                                  -3-
the kidnapper. Id. The McClung court held:

         A business ordinarily has no duty to protect customers from the criminal acts of third
         parties which occur on its premises. The business is not to be regarded as the insurer
         of the safety of its customers, and it has no absolute duty to implement security
         measures for the protection of its customers. However, a duty to take reasonable
         steps to protect customers arises if the business knows, or has reason to know, either
         from what has been or should have been observed or from past experience, that
         criminal acts against its customers on its premises are reasonably foreseeable, either
         generally or at some particular time.

Id. at 902. Thus, although a business generally has no duty to protect its customers from the criminal
acts of third parties, such a duty arises if the criminal acts are reasonably foreseeable. The McClung
court further stated that “the foreseeability of harm and the gravity of harm must be balanced against
the commensurate burden imposed on the business to protect against that harm,” and that “in cases
in which a lesser degree of foreseeability is present or the potential harm is slight, less onerous
burdens may be imposed.” Id. at 902-04. Under this balancing test, the McClung court considered
the number of crimes that had recently taken place in the vicinity of the Wal-Mart parking lot and
found that the attack was reasonably foreseeable.3 Id. at 904.

       Wells argues that, under McClung, her injury was foreseeable to such a degree that Penney’s
owed Wells a duty of care to protect her from the actions of the unidentified customer. Wells
contends that her two requests for security and management prior to the physical altercation made
the physical assault foreseeable so as to impose on Penney’s a duty to protect Wells.

        Wells relies on Staples v. CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000), in which the
balancing test in McClung was applied to a retail store. In Staples, the plaintiff customer, while
“visibly shaken,” told two department store employees that she was being stalked by a man who had
followed her to several stores in the shopping mall. Id. at 86. The store employees did not call for
security and, although they promised, failed to watch the plaintiff as she walked from the store to
her truck. Id. The plaintiff was subsequently kidnapped by the stalker. The plaintiff customer sued
the store, alleging that it breached its duty to protect the plaintiff from the stalker. See id. The
Staples court found that the exchange between the plaintiff and the defendant store’s employees put
the store on notice, and therefore the harm she encountered was foreseeable. Id. at 90-91.

      In this case, prior to the customer grabbing her wrist, Wells made two requests that the
Penney’s employee call security and the manager. The stated reason for the request, however, was
not Wells’s fear for her safety, but rather her desire to have the manager or security guard decide


         3
           The court cited the following incidents that occurred in the seventeen months p rior to M rs. M cClung’s
abduction: “[A] b omb threat, fourteen burglaries, twe lve rep orts of malicious mischief, ten robbe ries, thirty-six auto
thefts, ninety larcenies, and o ne attem pted kidnapping on a parking lot ad jacent to the d efendants’ parking lot . . . .”
McClung, 937 S.W.2d at 904.

                                                            -4-
which customer would be permitted to purchase the two crystal bears. Moreover, Wells’s actions
do not indicate that she feared a physical assault. When the angry customer cursed her, Wells did
not let go of the crystal bears or leave the vicinity. When the customer walked toward her, Wells
still did not let go of the crystal bears. Instead, she explained her view that the manager should
determine which customer would be permitted to purchase the figurines, and asked the unidentified
customer her name. When the customer responded with yet another expletive,4 Wells’s response was
cavalier, and she still did not let go of the figurines and leave the vicinity. Wells’s actions prior to
the customer grabbing her wrist indicate that neither she nor the Penney’s employees foresaw that
the customer would assault Wells over the crystal bears. In addition, unlike McClung, which
involved an abduction at gunpoint and subsequent rape and murder, the gravity of harm in this case
is low; the customer grabbed Wells’s wrist, resulting in one of the crystal bear figurines falling and
shattering. These circumstances do not give rise to a duty by Penney’s to protect Wells from the
assault by the unidentified customer. To hold otherwise would make Penney’s “an insurer of the
safety of its customers,” which is not the law in Tennessee. McClung, 937 S.W.2d at 902.
Therefore, we conclude that the trial court did not err in granting Penney’s motion for summary
judgment.

       The decision of the trial court is affirmed. Costs are taxed to the appellants, Ruth Carolyn
Wells and Raymond L. Wells, and their surety, for which execution may issue if necessary.




                                                                 ___________________________________
                                                                 HOLLY K. LILLARD, JUDGE




       4
           Apparently, after-Christmas b argain shop ping had so mewhat dim inished the custo mer’s C hristmas spirit.

                                                          -5-
