However, there are exceptions and it’s important to consider that under Florida’s comparative fault statute, F.S. 768.81, those who are partially to blame for their own injuries can still collect damages from others who shared responsibility.
The recent case of Roddey v. Wal-Mart, though not a Florida case, is a good example of this. In this South Carolina Supreme Court case, justices were asked to decide whether lower courts erred in issuing a directed verdict in favor of a store whose contracted security guard chased down an alleged shoplifter – with fatal consequences.
According to court records, a woman waited in her vehicle in the parking lot of a large chain store while her sister attempted to shoplift several articles of clothing (this fact was undisputed by plaintiffs). A store manager noticed the shoplifting attempt and notified a number of other employees, including an on-duty security guard.
The security guard worked for a contracted company to provide parking lot security.
Ultimately, the alleged shoplifter exited the store without any stolen items. As she left, the security guard approached her. He reportedly shouted that he needed to speak with her, but she did not stop. Instead, she ran to her sister’s waiting vehicle.
The security guard at first tried to block the sisters’ exit, but the driver backed out and fled the parking lot.
Now at this point, according to the policy of the store and the security company, the pursuit should have been over. Those policies require employees to halt pursuit when the suspect either enters a vehicle or exits the parking lot. The reason is due to potential danger to other patrons.
The store manager had told the security guard to get the license plate number of the vehicle. He radioed in that he was unable to do so. He told the manger he was not a police officer and could not detain someone. The manager reportedly responded by telling him, “Do what you got to do,” which the security guard took to mean he had to obtain that license plate number by leaving the parking lot.
He followed the two sisters as they existed the parking lot and entered the highway. The radio frequency at that point was lost.
An expert witness for the plaintiff testified that the problem started when employees for the store failed to follow their own policy in asking the contract employee to do something the store itself specifically says they won’t do and won’t allow their contractors to do.
Soon after the sisters entered the highway, in an attempt to evade the security guard right behind them, the driver lost control of the car and crashed. The suspected shoplifting sister was killed in the car accident.
A personal representative for her estate sued the store, the the security company and the guard.
At the conclusion of trial, the store moved for a directed verdict, arguing there was no evidence the store breached its duty of care, the actions of store employees weren’t the proximate cause of decedent’s death and decedent’s own fault in causing her death was more than 50 percent under law. (In South Carolina, plaintiffs can’t be more than 50 percent at-fault in order to collect damages; In Florida, plaintiffs can be up to 99 percent at-fault and still collect damages for the remaining 1 percent attributed to others.)
Trial court granted the motion, finding even if the store was negligent, there was not proximate cause because the events weren’t foreseeable. Jurors later found decedent 65 percent at fault and the security company/ guard 35 percent at fault. Under state statute, that meant plaintiff could not collect.
Plaintiff appealed. Although the appellate court affirmed, the South Carolina Supreme Court reversed.
The state high court found there was evidence form which a jury could find the store negligent and from which it could find that negligence was the proximate cause of plaintiff’s injuries.
A new trial has been ordered.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Roddey v. Wal-Mart, March 30, 2016, South Carolina Supreme Court
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