Lead Opinion
OPINION
delivered the opinion of the Court,
BACKGROUND
This is an appeal of an order of dismissal based on the trial court’s determination that the plaintiffs failed to allege sufficient facts in their complaint to state a cause of action. In reviewing this decision, we must presume that all allegations in the complaint are true. In January 2012, Jo-lyn Cullum and her husband, Andrew Cul-lum, sued Jan McCool, her husband, William Harry McCool, and Wal-Mart
Ms. Cullum did not know it, but Wal-Mart employees had just refused to fill Ms. McCool’s medical prescriptions because they believed Ms. McCool was intoxicated. When her prescriptions were not filled, Ms. McCool became belligerent. The pharmacy employees at Wal-Mart were familiar with Ms. McCool as someone who had been in the store intoxicated on previous occasions. When the pharmacy employees ordered Ms. McCool to leave the store, they knew she was intoxicated, was alone and would be operating a motor
Wal-Mart filed a motion to dismiss, contending that the Cullums failed to allege any facts upon which relief could be granted. Wal-Mart argued that it has no duty to call the police after an apparently intoxicated patron enters its store and then leaves after being ordered to do so by store employees. Wal-Mart also answered the complaint, asserting several affirmative defenses, including comparative fault.
The trial court granted Wal-Mart’s motion to dismiss, reasoning that Wal-Mart employees had no duty to call the police, call a taxi, restrain Ms. McCool, prevent her from driving or warn its customers that she was intoxicated and might harm them. The trial court certified the ruling as a final judgment under Tenn. R. Civ. P. 54.02 and denied the Cullums’ Tenn. R. Civ. P. 59.04 motion for reconsideration.
The Cullums appealed. The Court of Appeals reversed the trial court, reasoning that the trial court should have focused on Wal-Mart’s duty to protect a potential plaintiff as opposed to its ability to control a third party. Cullum v. McCool, No. E2012-00991-COAR3-CV,
We granted Wal-Mart’s Tenn. R.App. P. Rule 11 application.
ANALYSIS
In this premises liability case, we must determine whether the Cullums’ complaint against Wal-Mart is legally sufficient to survive Wal-Mart’s motion to dismiss. Under Tenn. R. Civ. P. 12.02(6), the purpose of a motion to dismiss is to determine whether the pleadings state a claim upon which relief can be granted. Trau-Med of Am., Inc. v. Allstate Ins.,
In this negligence action, the Cullums were required to prove (1) a duty of care owed by Wal-Mart to Ms. Cullum; (2) a breach of the duty of care by Wal-Mart; (3) damages; (4) factual cause; and (5) proximate, or legal, cause. McClung v. Delta Square Ltd. P’ship,
Duty is “a legal obligation to conform to a reasonable person standard of care in order to protect others against unreasonable risks of harm.” Satterfield v. Breeding Insulation Co.,
“[P]ersons do not ordinarily have a duty to act to protect others from dangers or risks except for those that they themselves have created.” Id. at 357. However, legal duties can also arise when there is a special relationship between the parties. See Giggers v. Memphis Hous. Auth.,
In McClung, we held that generally a business has a duty to take reasonable measures to protect its customers from foreseeable criminal attacks.
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
*834 (a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
McClung also cited with approval comment/of Section 344, which provides:
Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
In McClung, we elected to “join those courts which generally impose a duty upon businesses to take reasonable measures to protect their customers from foreseeable criminal attacks.”
This middle-ground, or balancing approach, weighs the foreseeability of harm and the gravity of harm against the burden on the business to protect against that harm. McClung at 901. We recognized that a business is not the insurer of the safety of its customers, but in certain circumstances, it may be required to take reasonable steps to protect its customers against foreseeable harm. We noted that “a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by the defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would have prevented the harm.” Id. (quoting McCall v. Wilder,
Furthermore, business owners can be liable for the accidental, negligent or intentionally harmful or criminal acts of third parties, so long as those acts are reasonably foreseeable. As noted, the Restatement (Second) of Torts § 344 provides that businesses can be liable “for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons.” Comment / refers to whether a business “should reasonably anticipate careless or criminal conduct on the part of third persons.” Under these principles, which we adopted in McClung, business owners can be subject to liability not only for failing to protect patrons from the reasonably foreseeable criminal acts of third parties but also for failing to protect patrons from the reasonably foreseeable negligent acts of third parties.
Other courts have recognized that the duty of business owners to provide safe premises for invitees applies to criminal and negligent acts of third parties. Marshall v. Burger King Corp.,
To determine whether the facts alleged establish that Wal-Mart owed a duty of care in this case, the McClung balancing approach requires the weighing of the foreseeability and gravity of harm to Ms. Cullum against the burden placed on Wal-Mart to engage in conduct that would have prevented the harm. McClung,
We need look no further than the all too common example of DUI-related accidents to appreciate the possible magnitude of harm or injury that can result from an impaired driver. Deaths and serious injuries tragically occur every day as the result of impaired drivers who are operating motor vehicles on our roads and highways.
Burroughs v. Magee,
In Edington v. A & P Enter., Inc.,
In Philon v. Knerr, No. E-11-011,
The Supreme Court of California ruled that there was a jury issue as to whether a restaurant was liable in a negligence action based on its employees’ failure to call 911 after witnessing a patron being attacked in its parMng lot by a man who had taken a knife from the restaurant’s Mtchen. Morris v. De La Torre,
A Michigan appeals court ruled that there was a jury question as to whether a restaurant owner was negligent when its patrons were attacked by a group of unruly persons in its parking lot. Mills v. White Castle Sys. Inc.,
We are not ruling that businesses or their employees must “call 911 for every blowhard drunk.” Del Lago Partners, Inc. v. Smith,
Wal-Mart urges a different result for several reasons. Wal-Mart contends that McClung does not provide the proper framework, because McClung applies only to lack-of-security cases. This is a specious distinction, as this case is essentially a lack-of-security case. Ms. Cullum has alleged that Wal-Mart’s actions failed to secure her safety in the parking lot from an intoxicated patron.
Wal-Mart contends that McClung is inapplicable because it applies only to foreseeable criminal attacks and that Ms. McCool’s actions were not a criminal attack. We disagree. Ms. McCool’s operation of a motor vehicle in an intoxicated state certainly could be considered criminal conduct
Wal-Mart also relies on Lett v. Collis Foods, Inc.,
Wal-Mart also relies on our decision in West, 172 S.W.3d at 552, in which we held that a convenience store employee has a duty not to sell gasoline to drivers “whom the employee knows ... to be intoxicated,” but had no duty to physically restrain or otherwise prevent an intoxicated person from driving. West, however, is distinguishable. West did not involve a special relationship between the business that sold gasoline to a third party and the driver who was injured by the third party’s conduct. Id. at 549. In contrast, Wal-Mart had a special relationship with its customer, Ms. Cullum, and therefore, it had a duty to protect her from foreseeable risks of harm on its property provided that any action that its duty may have required was not overly burdensome.
Wal-Mart argues that it did not contribute to Ms. McCool’s intoxicated state and that it did not provide her with a vehicle. We agree, but assuming the Cullums’ allegations are true, Wal-Mart knew that Ms. McCool was intoxicated and that she would be driving her motor vehicle in the store’s parking lot; therefore, it was reasonably forseeable that Ms. McCool posed a specific danger to other patrons.
Wal-Mart also contends that it has no legal right to detain an intoxicated person. A Connecticut court expressed concern over this very issue, writing:
For instance, what would be the result if a business identifies an intoxicated person, but that person wishes to leave the store premises? Is the store owner to detain that person against his or her will? Should the store owner be required to use force if the intoxicated person refuses to be* assisted? Although public policy arguments favor the deterrence of drunk driving, they also favor the deterrence of detention and the use of force.
Welton v. Ferrara, No. CV075014834S,
“As a practical matter, a court serves as a gate-keeper and may exclude a claim only if it finds, as a matter of law, that the defendant does not owe a duty to
CONCLUSION
The trial court erred in granting Wal-Mart’s motion to dismiss, because the Cul-lums have alleged sufficient facts in their complaint upon which relief can be granted. We reverse the judgment of the trial court, affirm the judgment of the Court of Appeals and remand to the Circuit Court for Hamilton County for further proceedings. Costs are taxed to Wal-Mart Stores East, LP, for which execution may issue, if necessary.
Notes
. The Cullums initially sued Wal-Mart Stores, Inc. On April 4, 2012, the trial judge signed an agreed order in which the parties stipulated that the proper party is Wal-Mart Stores East, LP instead of Wal-Mart Stores, Inc. This appeal only involves the Cullums’ claims against Wal-Mart and does not address the Cullums’ claims against the McCools.
. "We have previously recognized such special relationships to include those of innkeeper and guest, common carrier and passenger, possessors of land and guests, social host and guest, and those who have custody over another." Downs ex rel. Downs v. Bush,
. In McClung, we overruled our decision in Cornpropst v. Sloan,
. The prior incidents rule provides that before a business can be held liable for third-party conduct, there must have been prior incidents committed on or very near the premises of the business. This rule was considered too broad, insulating businesses with a "one free assault rule.” McClung,
. We are not holding in this case that retailers must install the safety-screening procedures adopted by the Transportation Security Administration (TSA) for airline passengers at airports. We are not holding that retailers must ask patrons entering their businesses to submit to Breathalyzer tests. We also are not requiring retailers to conduct thorough security screenings of all patrons, similar to what fans encounter at sports stadiums or music concerts. Such procedures could impose onerous burdens on business owners.
. Tenn.Code Ann. § 55-10-401 (2012) provides:
It is unlawful for any person to drive or to be in physical control of any automobile ... on any of the public roads and highways of the state ... or while on the premises of any shopping center ... or any other premises that is generally frequented by the public at large, while:
(I) Under the influence of any intoxicant ... affecting the central nervous system or combination thereof that impairs the driver’s ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of oneself which the driver would otherwise possess....
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Concurrence Opinion
concurring and dissenting.
I fully concur in the majority’s conclusion that Wal-Mart owed a duty of reasonable care to its customers to prevent them from suffering harm and that the trial court erred in granting Wal-Mart’s motion to dismiss. I write separately, however, to reaffirm my view that “any discussion of foreseeability in the context of duty encroaches upon the role of the finder of fact.” Giggers v. Memphis Hous. Auth.,
Instead of the majority’s “balancing approach,” I favor the duty formulation of the Restatement (Third) of Torts, which states that “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Phys. & Emot. Harm § 7(a) (2010) [hereinafter Restatement (Third) of Torts]. Under the Restatement (Third) of Torts, this general duty of reasonable care may not apply, however, “when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases.... ” Restatement (Third) of Torts § 7(b). A no-duty rule is therefore appropriate when a court can “promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of eases.” Id. emt. a. The Restatement (Third) of Torts warns, however, that these no-duty rules “should be articulated directly without obscuring references to foreseeability.” Id. emt. j.
. Although the Restatement (Third) of Torts’s approach to duty remains a minority position, a growing number of jurisdictions have adopted the new Restatement. See, e.g.,