## Facts

- Dorothy McClung went to shop at a Wal-Mart in the Delta Square Shopping Center in Memphis around noon on September 7, 1990.
- In the shopping center parking lot, she was abducted at gunpoint by a third party, raped, confined in the trunk of her car, and died from suffocation; her body was found the next day.
- In the 16 months preceding the abduction, police records reflected 164 reported criminal incidents in or near the parking lot, including robberies, auto thefts, larcenies, and an attempted kidnapping in an adjacent lot.
- Evidence indicated the area was considered high-crime, including testimony that theft risk affected store operations and that some nearby businesses and other Wal-Mart locations used more substantial security measures.
- Roger McClung sued the shopping center owner/operator and the anchor tenant, alleging negligent failure to provide parking-lot security and alleging proximate causation of Mrs. McClung’s death.
- The trial court granted summary judgment to defendants, concluding it was constrained by prior Tennessee precedent limiting duty for third-party criminal acts; the intermediate appellate court affirmed.

## Issues

1. Whether business owners and occupiers owe customers a duty to take reasonable steps to protect them from third-party criminal acts on the premises, and what foreseeability standard governs that duty.
2. Whether prior Tennessee precedent limiting duty to situations involving notice of an imminent, specific criminal act should be modified.
3. Whether the record created genuine disputes of material fact on foreseeability, duty, and reasonableness that precluded summary judgment.

## Decision

- The Tennessee Supreme Court reversed summary judgment and remanded.
- The court held that businesses open to the public owe a duty to take reasonable measures to protect customers from foreseeable third-party criminal acts occurring on the premises.
- The court rejected the strict “imminent probability/specific act” notice requirement as too restrictive and adopted a broader foreseeability approach.
- Applying the new standard, the court held that the crime history and other evidence could permit a reasonable jury to find foreseeability and unreasonable lack of security; the case could not be resolved as a matter of law.

## Legal Principles

- A business owner/operator owes a duty of reasonable care to protect customers from third-party criminal acts when such acts are reasonably foreseeable.
- Foreseeability may be shown by the nature of the business, its location, and prior similar incidents, among other circumstances indicating a predictable risk of criminal activity on the premises.
- Courts assess duty and scope of precautions through a balancing test weighing (a) foreseeability and gravity of harm against (b) the burden and practicality of security measures.
- Businesses are not insurers of customer safety; even where crime is foreseeable, liability turns on whether the precautions taken (or not taken) were reasonable under the circumstances.
- Foreseeability and the reasonableness of security measures are ordinarily jury questions unless reasonable minds could not differ.

## Conclusion

The court broadened Tennessee premises-liability doctrine for third-party crimes by replacing a narrow “imminent, specific act” rule with a foreseeability-and-burden balancing test, and it held that the evidence of prior crime and conditions at the shopping center created triable issues that made summary judgment improper.


McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891 (Tenn. 1996)