Wal-Mart Cleared in Parking Lot Murder Case

LAS VEGAS (Courtroom View Network) After fiery closing arguments in the Smith v. Walmart trial, a jury found Wackenhut, but not Wal-Mart (WMT), liable for inadequate security in a store parking lot where a customer was murdered. The jury awarded over $1M in damages.

Michael Born was murdered in a Wal-Mart parking lot while replacing his car's headlight. The plaintiffs claimed that Wal-Mart knew the store was located in a high-crime area, and that police were repeatedly called to the site. However, neither Wal-Mart nor its hired security service, Wackenhut, took adequate measures to protect Wal-Mart customers.

Plaintiff attorney Mont Tanner reminded the jury that there had been more than a hundred similar incidents of serious crimes at the store, such as battery and robbery, most within the two years prior to the murder. However, said Tanner, there was no annual security assessment at this "crime magnet" by either Wal-Mart or Wackenhut, and the Wackenhut patrol officer was not trained to identify or deal with suspicious persons. Wal-Mart also allegedly failed to comply with its own security guidelines.

For Wal-Mart, Rob Phillips of Phillips, Spallas, and Angstadt, told the jury, "This is what's extremely frightening about this case. We are imposing on...the Wal-Mart store a super-human, an incredible burden...I implore you to understand that a retailer does not provide a dome of protection for individuals. There is no law that says when someone walks on the property they are guaranteed to be safe from erratic behavior, or criminals that have an intent to commit crimes." Nonetheless, said Phillips, Wal-Mart provided better security than anyone else in the retail industry at the time of the crime.

Moreover, said Phillips, there is no evidence in the case that the perpetrator was acting suspiciously. He was on the property for twelve minutes. There was no evidence that he was loitering or that he did anything out of the ordinary. And even if he had been acting suspiciously, Wal-Mart could not reasonably have been expected to have an opportunity to view the suspicious behavior, and to spot the perpetrator from among 670 other people who visited the store in an hour.

According to Phillips, the patrol officer got two good looks at the perpetrator, and the surveillance tapes showed that at those times the perpetrator wasn't doing anything suspicious. And in any case, Wal-Mart cannot legally detain a person unless Wal-Mart has witnessed a crime. Wal-Mart was at the forefront of store security -- they invented the parking lot patrol, said Phillips. No retailer in the world did more than Wal-Mart or did things that Wal-Mart did not do. Wal-Mart exceeded the standard of care, said Phillips, and this crime could not have been prevented.

In addition, Phillips suggested that missing evidence and inconsistencies created serious doubts as to whether the victim in fact had very close relationships with his family members that would support their damages claim.

For Wackenhut, Thorndal, Armstrong, Delk's Craig Delk told the jury that the Wackenhut patrol officer had no obligation to stop the victim from changing a headlight in the parking lot -- indeed, directing him to drive away at night without a headlight would have been irresponsible. Moreover, Wackenhut was not obligated to comply with Wal-Mart's parking lot security guidelines -- Wackenhut had its own requirements.

Delk also said that the Wackenhut officer's patrol was not compromised by any smoking break or the officer's efforts to remove some trespassing perfume sellers. And during the eight seconds when the officer might have observed the perpetrator, there was no suspicious conduct at all. Moreover, said Delk, Wackenhut does not put unqualified or untrained people in the field, and Wal-Mart had no complaints that would suggest that Wackenhut had violated its contract with Wal-Mart.

In rebuttal, Tanner told the jury "Security is about keeping people safe from harm...And we know that didn't happen in this case because they had no training, they had no supervision, and they didn't follow their own orders that said, 'Keep suspicious persons under surveillance;' 'Loiterers are not allowed'..."

Tanner explained that law enforcement and security are different, because law enforcement is retrospective, whereas security is prospective. Wal-Mart's security supervisor had a law enforcement background, not a security background, said Tanner, so he didn't properly understand how to secure the property, and wasn't using the parking lot patrols correctly. The security supervisor wasn't even aware of crimes at the store, because he was focused on loss prevention, and in-store cameras to prevent in-store losses, not security.

As for Wackenhut, Tanner said that Wackenhut took no responsibility for a hundred similar crimes in the parking lot, because they complied with their contract with Wal-Mart. However, said Tanner, there were enough crimes to make it reasonably likely that this crime would occur again.

"Wackenhut is not off the hook unless they have a patrol that's trained and qualified. The Wackenhut officer was not trained and qualified. He had zero experience. He's 18 years old...He did his job well, but his job did not include identifying loiterers, people that were loitering, people that were suspicious in the parking lot. That was not his job. He was not supervised to do that, and he was not trained to do that."

The perpetrator was either loitering or suspicious, and the patrol officer would have noticed him if he had been driving slower and trained and supervised to watch for that, said Tanner. The perpetrator had spent 4-5 minutes going through cars, then eight minutes just sitting in the store's entryway, with gloves on. According to Tanner, he was clearly not on the property for a legitimate purpose. And twelve minutes is adequate time to spot that if you are qualified, trained, and supervised to do so.

It wouldn't have mattered how long the patrol officer saw the perpetrator, said Tanner, because he was trained to look for panhandlers and solicitors, and that is exactly what he did.

"Am I to understand," Tanner asked the jury, "that when you are protecting merchandise inside the store, you use the benefit of surveillance cameras and two-way radios, to protect your merchandise. But outside the store, in a parking lot, where you're protecting human life, and people that may be injured from crime, we don't use those? They're not a part of outdoor security?...That's nonsense...That they would spend the time and the money investing in 150 cameras and a surveillance operator and radio communication -- they are not deficient in one iota inside that store, but they don't care about what happens outside the store...Human life is more important than merchandise. Send a message to Wal-Mart and Wackenhut. You've got to provide training. You've got to provide staffing. You've got to look at the crime that's going on on your property."

Wal-Mart and Wackenhut could easily have prevented this crime, concluded Tanner, and the security they provided was "woefully inadequate." If they had questioned the perpetrator for even just ten seconds, the victim's death would have been prevented.

The jury found that that Wal-Mart was not negligent, but that Wackenhut was negligent, and awarded $276K to Born's estate, and $250K each to three family members, for a total award just over $1M.

This commentary comes from an independent investor or market observer as part of TheStreet guest contributor program. The views expressed are those of the author and do not necessarily represent the views of TheStreet or its management.

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