http://www.law.com/jsp/article.jsp?id=1109859535448
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3rd Circuit Denies Shooting Victim's Appeal in Wal-Mart Suit
Shannon P. Duffy
The Legal Intelligencer
03-07-2005
A Wal-Mart employee who sued the store for selling bullets to her estranged
husband that he used to shoot her in the head just minutes later has lost
her bid to revive a negligence suit that said the attack should have been
prevented.
In a two-page per curiam opinion in Midgette v. Wal-Mart, a unanimous
three-judge panel of the 3rd U.S. Circuit Court of Appeals upheld a January
2004 decision by Judge Franklin S. Van Antwerpen that rejected both of the
plaintiff's theories of liability.
In the suit, Marsha Midgette alleged that Wal-Mart was negligent in not
protecting her from her husband, Bryan, and that the store also engaged in
"negligent entrustment" by selling Bryan the bullets ultimately used in the
shooting.
According to court records, Bryan Midgette purchased the bullets at a
Wal-Mart store in Pottstown, Pa., on Aug. 30, 1999, and then immediately
chased down his wife, an employee of the store, and shot her in the head
before turning the gun on himself and committing suicide.
Plaintiffs attorney Louis Aurely III of Wusinich Brogan & Stanzione in
Downingtown, Pa., alleged that Bryan Midgette had physically abused his wife
three days before the shooting and was under a protection from abuse order.
The suit alleged that Wal-Mart knew of the abuse and also knew that Bryan
Midgette had continued to visit the store where his wife worked after the
court order was issued.
In his January 2004 decision, Van Antwerpen found that the suit was fatally
flawed because the plaintiff was unable to show that Wal-Mart's actions or
inactions were the proximate cause of the shooting.
"We find that, even if defendant had carried out all the duties that
plaintiff believes defendant owed, Bryan very likely still would have
succeeded in shooting his wife," Van Antwerpen wrote. "As such, no
reasonable jury could find that, but for the actions and/or omissions of
Wal-Mart, Bryan would not have shot his wife that night."
Now the 3rd Circuit has upheld Van Antwerpen's decision with a tersely
worded two-page per curiam opinion.
Circuit Judges Samuel A. Alito Jr., D. Brooks Smith and Theodore A. McKee
said Van Antwerpen had "carefully and thoroughly explained [his] reasons for
denying Midgette the relief she seeks and granting summary judgment to the
defendants. We need not engage in a redundant analysis simply to reach the
same result."
Wal-Mart was represented by attorney Patrick J. McDonnell of McDonnell &
Associates.
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"I hate to advocate weird chemicals, alcohol, violence,
or insanity to anyone--but they've always worked for me."
-- Hunter S. Thompson
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