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WALMART DID NOT OWE A DUTY OF CARE TO PLAINTIFF, AN OFF-DUTY POLICE OFFICER INJURED BY ANOTHER POLICE OFFICER AFTER RESPONDING TO A THEFT AT A WALMART STORE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Walmart did not owe a duty of care to plaintiff, an off-duty police officer who was injured by another police officer after responding to a call about a theft from Walmart:

Walmart contends that it owed no duty to plaintiff and that the court thus erred in denying its motion. We agree. “Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff . . . ‘Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm’ ” … . “[T]he definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration” … , and that determination is made “by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability … .

… [P]rior thefts at the Walmart store do not bear a sufficient relationship to what occurred in this instance—a negligent motor vehicle accident between plaintiff and his coworker—so as to create a duty flowing from Walmart to plaintiff. …

… [A]ny alleged violation of Walmart’s internal policy did not create a duty flowing from Walmart to plaintiff. The purpose of the internal policy was to protect “the physical well-being of [s]uspects, customers and Walmart associates.” Plaintiff was an off-duty police officer responding to an alleged criminal event who never entered the store. He was not one of those covered by the goal of the policies … . Brown v Wal-Mart Stores, Inc., 2023 NY Slip Op 02403, Fourth Dept 5-5-23

Practice Point: To be liable for negligence, there must be a duty of care running to the plaintiff on the part of the allegedly negligent defendant. Here plaintiff, an off-duty police officer, was injured by another police officer pursuing a suspect who allegedly stole merchandise from Walmart. Walmart did not owe plaintiff a duty of care.

 

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