Balancing the Focus on Foreseeability: Cullum V. McCool and Tennessee's Test for Business Liability for Third Party Acts

I. Introduction 751II. History of Business Liability for Third Parties' Actions 755A. Determining Duty in Third-Party Acts 756B. Tennessee 's Application of the Foreseeability-Duty Balancing Test 759III. Moving Away from Foreseeability 761IV. Balancing Foreseeability in Cullum v. McCool 763V. Fact-finding in the "Duty" Question 766VI. Conclusion 769I. IntroductionDoes a business have a duty to call the police when a large group of rowdy teenagers exits its store? See the recent "Kroger mob attack" in Memphis, Tennessee. A group of teenagers descended upon a Kroger store, randomly attacking patrons and one employee at the store's entrance.1 The group had been eating at a CiCi's Pizza in the same shopping plaza. The security firm associated with the CiCi's Pizza called the police earlier in the night3- does that fulfill that store's duty of care to any foreseeable injured parties? What if instead of a criminal attack, the teenagers had been intoxicated when they left CiCi's and hit several pedestrians in front of Kroger with their vehicles? Did Kroger have any obligation to those injured parties?Under the current balancing test used in Tennessee, the lack of foreseeability of an attack by teenagers may allow the businesses involved to escape liability in the early stages of the proceedings, despite the businesses' historic duty to protect its invitee customers. A group of rowdy teenagers that causes injury to patrons is clearly outside the scope of "every day" problems a business would foresee causing injury to patrons. A court in Tennessee may not find these events to be foreseeable for Kroger, since the teens had been patrons of CiCi's-rather than the Kroger store. The court would likely determine CiCi's fulfilled its duty to its customers by calling the police, having no obligation to act further. Kroger, unable to foresee the injuries, likely has no liability on behalf of those injured. Tennessee utilizes a balancing test focusing on factfinding, rather than the relationship between the injured party and the business at hand to determine whether a business has a duty of care to protect against a criminal or negligent act by a third party.A similar question of liability presented itself when Jan McCool had an "unsuccessful" trip to an East Tennessee Wal-Mart store.4 An intoxicated Jan McCool backed her car into another patron, Jolyn Cullum, after she was asked to leave when she sought prescription medications while noticeably intoxicated.5 Mr. and Ms. Cullum sued for damages for Ms. Cullum's physical and emotional harm, as well as Mr. Cullum's loss of consortium.6 They alleged Wal-Mart's familiarity with Ms. McCool's "habitual intoxication" at the time it evicted her from the premises violated Wal-Mart's duty of care.7In Tennessee, a business may be held liable for injuries to an invitee caused by a third party.8 This potential for liability generates from the policy that "businesses must justifiably expect to share in the cost of crime attracted to the business."9 Courts increasingly apply this policy where a business has a special relationship with the injured party.10 Tennessee utilizes a "balancing test" to determine when a business has a duty to a patron injured by a third party, weighing "the foreseeability of harm and the gravity of harm . . . against the commensurate burden imposed on the business to protect against that harm."11 By utilizing this balancing test, Tennessee joins states that recognize there may be a duty on businesses to provide security measures to ensure the safety of patrons from injuries caused by the actions of third parties, so long as those acts are foreseeable.12 The extent of the duty of providing safety measures is weighed in the balancing test. This approach focuses on the foreseeability of the third party's action, which is then weighed against the cost of prevention by the business.13The Tennessee Supreme Court ("Supreme Court" or "Court") consistently uses this balancing test to establish duty to a patron injured by a third party, focusing on the foreseeability of third party activity as a basis for that duty. …