                         United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                      No. 97-1683
                                      ___________

Roy Willmon, Personal                       *
Representative of the Estate                        *
of Carla Willmon Jones,                             *
Deceased,                                                   *
                                            *
            Appellant,                              *
                                            *           Appeal from the United
States
      v.                                    *           District Court for the
                                            *           Eastern District of
                                                        Arkansas
Wal-Mart Stores, Inc.                               *
                                            *
                 Appellee.                                  *
                                      ___________

                         Submitted:      November 19, 1997

                             Filed:    May 12, 1998
                                      ___________

Before MCMILLIAN and WOLLMAN, Circuit Judges, and STEVENS,1 District
      Judge.
                               ___________

STEVENS, District Judge.


      Roy Willmon, personal representative of the estate of Carla Willmon
Jones, deceased, filed this wrongful death action against Wal-Mart Stores,
Incorporated, claiming that Wal-Mart was negligent by failing to implement
feasible precautions and




      1
      The Honorable Joseph E. Stevens, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
failing to use ordinary care to maintain the premises of the Wal-Mart
Supercenter in Searcy, Arkansas, in a reasonably safe condition. The
district court granted defendant’s motion for summary judgment dismissing
Willmon’s entire action.2 Willmon timely appealed. We affirm.

I.   BACKGROUND

      At approximately 9:30 p.m. on the night of April 17, 1995, Mitchell
Skinner and Patric Patterson drove to the Wal-Mart Supercenter in Searcy,
Arkansas, and parked their vehicle in a space close to the door. For
thirty minutes or more, the two sat in their car smoking marijuana and
methamphetamine. Later, both men left the vehicle and proceeded to the
front of the store where Skinner watched as Patterson pretended to make a
telephone call and play a video game. Skinner was dressed in shorts and
a tank top, Patterson wore long pants and a pull-over shirt. Patterson
also carried a twelve inch-knife in his pants which created a bulge in his
pocket.

      After the two had pretended to make the telephone call and to play
the video game for approximately ten minutes, they sat down on a bench in
front of the store. Skinner and Patterson spent ten to fifteen minutes on
the bench during which time Patterson made comments of a sexual nature
about various women as they entered the store. Skinner was shaking due to
his consumption of methamphetamine, and he returned to the car.

      At approximately 10:15 p.m., Carla Willmon Jones arrived at the Wal-
Mart Supercenter, parked her car, and entered the store. While she was
shopping, Skinner and Patterson moved their car to a parking space near
hers. When Ms. Jones returned, Patterson approached her and asked for
assistance starting their car. Ms. Jones refused. When she opened her car
door Patterson shoved her inside. Thereafter,




      2
          Willmon v. Wal-Mart Stores, Inc., 957 F. Supp. 1074 (E.D. Ark. 1997).
                                         -2-
Skinner and Patterson drove Ms. Jones’ vehicle to a nearby business and
forced her into the trunk and then returned to Wal-Mart to pick up their
vehicle. Later that evening, Skinner and Patterson raped and murdered Ms.
Jones.

       Roy Willmon, acting on behalf of his deceased daughter’s estate,
brought this wrongful death action against Wal-Mart pursuant to Arkansas
law.   Willmon alleges that Wal-Mart is liable for negligently failing to
implement feasible precautions and failing to use ordinary care to maintain
the store premises in a reasonably safe condition. The district court
granted defendant’s motion for summary judgment concluding that Wal-Mart
owed no duty of care to Ms. Jones under Arkansas law.

II.   DISCUSSION

      This court reviews de novo the district court’s decision to grant a
motion for summary judgment. Brodnicki v. City of Omaha, 75 F.3d 1261,
1264 (8th Cir. 1996). The judgment will be affirmed only if the record
shows that there is no genuine issue of material fact and the prevailing
party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).


      Willmon argues that the court erred in concluding that Wal-Mart was
not liable under Arkansas law because it was under no duty to protect Ms.
Jones from the criminal acts inflicted upon her. The courts of Arkansas
have not directly addressed the issue presented in this case. Under these
circumstances, this court must attempt to predict the manner in which
Arkansas courts would decide the question. Pearce v. Cornerstone Clinic
for Women, 938 F.2d 855, 857 (8th Cir. 1991).

      The district court concluded that Arkansas would not impose liability
on Wal-Mart for failure to protect Ms. Jones pursuant to Boren v. Worthen
Nat’l Bank of Arkansas, 324 Ark. 416, 921 S.W.2d 934 (Ark. 1996). In
Boren, the Arkansas Supreme Court addressed the question of whether a bank
had a duty to protect patrons




                                    -3-
using its ATM machines from criminal attacks by third parties. In Boren
the court began its analysis by noting that on several prior occasions
Arkansas recognized the duty of a business owner to protect its patrons
from criminal attacks. However, it also noted that a duty was imposed only
where the owner or its agent was aware of the danger presented by a
particular individual or failed to exercise proper care after an assault
had commenced. 921 S.W.2d at 940. The court then described the three
tests that have developed in other jurisdictions for determining when a
business owes its invitees a duty of care to protect them from criminal
acts of third parties and considered the applicability of each to the case.


      First addressed was the Specific Harm Test. Under this approach a
business owner is liable for failing to protect its customer if it is aware
of the imminent probability of specific harm to that customer. See, e.g.,
Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975); Page v. American Nat’l
Bank & Trust Co., 850 S.W.2d 133 (Tenn. App. 1991); Fuga v. Comercia Bank-
Detroit, 202 Mich. App. 380, 509 N.W.2d 778 (1993). There is no duty
placed upon businesses to protect their customers from criminal acts of
third parties unless they know or have reason to know that acts are
occurring or are about to occur on the premises that pose imminent
probability of harm to an invitee. Boren, 921 S.W.2d at 940. This test
was not adopted by the court in Boren. Rather, the court concluded that
this approach was inapplicable in the ATM context, noting that if this were
the standard for liability it would be “virtually impossible” to hold a
financial institution liable for criminal acts occurring at ATM machines
because ATMs are almost always unmanned and, therefore, the owner would
never be aware of a specific imminent probability of harm to is customer.
Id.

      Second, the court considered the Prior Similar Incidents Test. Under
this approach a business is liable for failing to protect its customers
from criminal acts if similar acts have previously and recently occurred
on the property in sufficient numbers to put the business owner on notice
of the likelihood of danger. See Williams v. First Ala. Bank, 545 So.2d
26 (Ala. 1989); Dyer v. Norstar Bank, N.A., 186 A.D.2d 1083,




                                    -4-
588 N.Y.S.2d 499 (1992).     In Boren the court found that this was the
appropriate test for determining the bank’s liability but held that because
there had only been one prior attack at the same ATM three months earlier,
the attack on Boren was not reasonably foreseeable, and thus the bank was
not liable.

      Third, the court considered the Totality of the Circumstances Test.
Under this approach if the nature, condition, and location of the premises,
and any prior similar incidents make the criminal act at issue foreseeable,
then the business owner is liable for failing to protect its customers from
these types of acts. See Torres v. United States Nat’l Bank, 65 Or. App.
207, 670 P.2d 230 (1983); Isaacs v. Huntington Mem’l Hosp., 38 Cal. 3d 112,
211 Cal. Rptr. 356, 695 P.2d 653 (1985). This test is the most expansive
and the court in Boren specifically declined to adopt it noting that “[t]o
do so would result in the imposition of a duty to guard against random
criminal acts by third parties, a duty we have heretofore not imposed on
any other businesses.” Boren, 921 S.W.2d at 941.

      The district court concluded that the Arkansas Supreme Court would
extend Boren beyond cases involving criminal attacks at ATM machines and
apply it to the facts of this case. Because Boren specifically rejected
the Totality of the Circumstances test but left open the question of which
of the remaining two tests should be applied, the district court here
applied both the Specific Harm and the Prior Similar Incidents tests.

      With respect to the Specific Harm Test, Willmon contends that the
facts he presented are sufficient to create a jury question on the issue
of whether Wal-Mart had reason to know of the imminent probability of harm
to Ms. Jones. Willmon maintains that Skinner and Patterson were highly
visible on Wal-Mart’s premises for at least an hour prior to the abduction
and that it was clear that they had no legitimate business purpose being
there. Further, three female patrons who saw Skinner and Patterson at Wal-
Mart just prior to the abduction testified by deposition they felt that
their physical




                                    -5-
safety was threatened by these two men. The district court noted, however,
that Willmon had presented no evidence that any Wal-Mart employee knew that
Skinner and Patterson were on the premises on the evening Ms. Jones was
abducted or that they were acting strangely. Further, the court held that
even if an employee had observed the men, their conduct was non-violent and
could not have foreshadowed their subsequent violent crimes against Ms.
Jones. Accordingly, because Wal-Mart did not know or have reason to know
that the crimes against Ms. Jones were occurring or that there was an
imminent probability of harm to her, the district court concluded that
liability could not be imposed under the Specific Harm test. We find no
error in the district court’s ruling on this issue.

      The district court also concluded that Wal-Mart could not be held
liable under the Prior Similar Incidents test. Willmon submitted evidence
demonstrating that between January 22, 1993, and April 17, 1995, the date
of Ms. Jones’ abduction, there were fifty-one reports of crimes at the Wal-
Mart Supercenter in Searcy. Of these fifty-one incidents, however, only
six could be considered violent. Therefore, the court concluded that only
these six incidents could possibly be considered sufficiently similar to
be relevant to a determination of whether the abduction, rape, and murder
of Ms. Jones was foreseeable to Wal-Mart.

      The six incidents reported were: 1) on December 22, 1993, a man swung
a tire iron at his sister in the parking lot, 2) on May 10, 1994, a fight
broke out in the parking lot involving five men, 3) on June 5, 1994,
another fight occurred in the parking lot involving five men, 4) on August
21, 1994, a man slapped another man inside the store, 5) on December 24,
1994, two men were involved in a fight in the parking lot, and 6) on March
3, 1995, a man struck another man inside the store. The district court
compared these incidents with the attack on Ms. Jones and noted that none
of these prior incidents appeared to have resulted in serious bodily
injury, none involved a weapon, and none was a rape or abduction.
Therefore, the court concluded that these prior incidents were not
sufficiently similar to make Ms. Jones’ abduction, rape, and




                                    -6-
murder foreseeable to Wal-Mart, and thus the store had no duty to protect
her from these crimes. We find no error in the district court’s ruling on
this issue.3

III. CONCLUSION

      We conclude that, however tragic the circumstances of Ms. Jones’
abduction and death, the district court did not err in finding that Wal-
Mart was under no duty to protect her from the attack by Skinner and
Patterson. Accordingly, we affirm the district court’s grant of summary
judgment to Wal-mart.

     A true copy.

           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




      3
        We note that Judge Hendren reached a similar conclusion regarding prior
incidents in a business owner’s parking lot. See Parnell v. C & N Bowl Corp., Inc.,
954 F. Supp. 1326 (W.D. Ark. 1997), aff’d 124 F.3d 208 (8th Cir. 1997) (table).
                                        -7-
