Fifth Circuit Rules Walmart Is Not Liable For Selling 60 Cans Of Fatal Dust Remover To A Clearly Deranged Addict During a 27-Hour Period

There is an interesting case out of the United States Court of Appeals for the Fifth Circuit in Allen v. Walmart, 2018 WL 4998231 (5th Cir.  Oct 16. 2018. Judge Edith Brown Clement ruled for Walmart in a novel claim that the chain should not have sold Karalee Alaine Williams a dust remover. Williams was found dead in the parking lot after inhaling the product. It reads like a dram shop claim for dust removers.  Notably, Williams kept returning in worse and worse shape, including her final visit naked from the waist down — but was still sold additional dust remover.  Her mother brought an array of claims, including negligence, negligence per se for violating Texas Health & Safety Code Chapter 485, negligent entrustment pursuant to Restatement (Second) of Torts § 390 and  breached a duty to Williams under a theory of premises liability. She also alleged that Wal-Mart owed Williams a duty in the products liability context, invoking Texas Civil Practice & Remedies Code § 82.003(6) (2009).

Here are the basic facts laid out by the court:

“During Williams’s first visit on Sunday, April 10, 2016, she purchased a towel and cans of dust remover. On her second visit that day, she had soiled herself but proceeded to buy more cans of dust remover and told the checkout employee that she had had a seizure in the parking lot. On Williams’s third visit the next morning, she entered the store naked from the waist down. Several Wal-Mart employees noticed her condition and communicated this to other employees. During that third visit, Wal-Mart employees gave Williams a towel and a “sundress.” After receiving these items Williams purchased more cans of dust remover. During each of Williams’s subsequent visits to Wal-Mart she allegedly bought more cans of dust remover. Early Tuesday morning, April 12, 2016, Williams died in the parking lot from the effects of inhaling dust remover, a process called “dusting,” but her body was not discovered until the next day.”

The use of the product to get high is a well-known epidemic for public health officials. If that was not well enough known at Walmart, the woman entering after soiling herself and then almost naked might be strong indicators. Then there was the fact that Williams entered the store on nine different occasions over the course of twenty-seven hours to buy cans of dust remover. She is believed to have purchased at least sixty cans of dust remover during that period.

Nevertheless, the court found that there was no liability in upholding the lower court’s dismissal of her mother’s claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief could be granted.

Allen pushed premises liability theory the hardest in the case based on the Supreme Court of Texas’s holding in Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010), the Supreme Court of Texas found that a bar had a duty to protect a patron given the bar’s “actual and direct knowledge that a violent brawl was imminent[.]”  As an invitee, the court accepted that Williams was owed  a duty to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known.” However, this is not the traditional condition that leads to such liability like dangerous physical conditions.

The court ruled:

“. . . Wal-Mart did not owe Williams a duty under Texas Health & Safety Code § 485.031 to protect her from abusing the dust remover. See LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W.2d 563, 564 (Tex. App.—Houston [1st Dist.] 1998) (HN7 “As a general rule, a defendant has no duty to prevent the criminal acts of a third party who does not act under the defendant’s supervision or control.”). Neither was it illegal for Wal-Mart to sell Williams dust remover, because she was an adult. See Tex. Health & Safety Code § 485.032 (2001) (“A person commits an offense if the person knowingly delivers an abusable volatile chemical to a person who is younger than 18 years of age.”). Because Allen did not plead that there were any issues with the conditions of the premises, and because, as we elaborate below, Wal-Mart did not owe Williams any duty of care regarding her purchase or abuse of dust remover, Wal-Mart cannot be found negligent under a theory of premises liability. [*9]  We thus hold that Allen’s negligence claim based on premises liability fails.”

While the court said the Allen’s counsel identified premises liability as their strongest claim, there would seem a compelling case to be made under common law negligence.  The repeated, and increasingly bizarre, appearances of Williams would raise an alarm in most people.  Indeed, it is surprising to see someone able to make purchases while naked from the waist down.  One problem is the Texas is a comparative negligence state. It follows a modified comparative negligence approach. As a result, a plaintiff is barred from any recovery if she is found to be 51% or more at fault.  If she is found 50% or less at fault, her  recovery is reduced by their percentage of fault. In this case, the fault is primarily that of Williams, though she was clearly struggling with addiction.

While I understand the ruling, there does appear to be culpability by Walmart in its failure to refuse further sales.  The problem is that the claim is difficult to square with common law torts, though it is hard not to be highly sympathetic with Allen and her desire for some accountability.

Kudos: Professor Roger E. Schechter

49 thoughts on “Fifth Circuit Rules Walmart Is Not Liable For Selling 60 Cans Of Fatal Dust Remover To A Clearly Deranged Addict During a 27-Hour Period”

  1. Wal-mart is a store, not a babysitter. Why should there be any liability. If someone is that deranged, or have addictive personality, let them inhale and deal with the consequences. There are warnings on the can anyways. Common sense.

  2. I very much wish that there could be effective education from elementary school on about drugs. The reason why people get high huffing aerosol dusters is brain damage. That euphoric feeling is brain cells dying off. It can lead to permanent neurological impairment and other very serious side effects. I often wonder why anyone would try something that, if they like it, will ruin their lives. Perhaps if more kids understood that huffing aerosols killed brain cells, they wouldn’t try it when they’re older.

    Karalee Alaine Williams’ addiction and death was a self-inflicted tragedy. The pain her family and loved ones must have endured, watching this slow slide into ruin and death must have been horrific. Parents describe being utterly unable to get through to their children. I wish I had an answer. These are all people who had a future, and a life, before drugs. They had an entirely different future if they never tried drugs.

    In general, I am in favor of personal liberty, but there is a quandary for legalizing drug abuse. How can the FDA possible allow poison to be sold for personal use? How could meth ever be legalized, for example? It’s quite literally poison, and the lab where it is created contaminates entire buildings, as well as creates an explosion hazard. I do not see any way to legalize all drugs without getting rid of the FDA entirely, and I cannot see that gaining much support.

    Then there is the question of who is responsible for drug related deaths? As a nation, we seem conflicted. One side keeps pushing to legalize more and more drugs, and to stop charging drug users and dealers as criminals. The other side wants drugs and dealing drugs to remain illegal. Drug addiction is a self inflicted illness. Who is to blame for their overdoses? The addicts, the dealers, or those who sell them normal household products?

    It is interesting how there is argument against businesses refusing service, and then outrage that a business did not refuse service. I actually dot think that Walmart was wrong for selling an obvious addict aerosol dusters. I am also very concerned that Williams may have been raped during her final hours. Walking around in a daze without pants is not a good sign. Drug addicts are highly susceptible to rape and prostitution. It’s so sad. I cannot say if Walmart was legally at fault, but they were ethically wrong. I believe the store should have a policy not to sell aerosol dusters to people they recognize as frequent buyers. But, that opens up a can of worms on discrimination and lawsuits. It would also put Walmart in a position of having customers prove they owned an auto shop or ran an office, or had some other need for a lot of dusting. By the time Williams showed up naked from the waist down, any reasonable person should have called the police and stopped selling her dusters.

    Her mother must be grieving terribly. Her daughter slowly killed herself because she was so badly hooked, she just couldn’t stop herself. I do think that Walmart was wrong to sell to her, and they were wrong not to call the police when she showed up half naked. However, Walmart also sells at the cheapest price, which also means they hire at the cheapest wages to keep costs down. You don’t often find the cream of customer service at Walmart. Should Walmart be held legally liable, that will make it very difficult for any store to sell anything that can be abused by drug addicts, including cough syrup and antifreeze. If they will be sued when an addict abuses a normal household product, then they will have to stop selling those products. In a comparative negligence state, it is my opinion that Williams is more than 50% responsible. I think Walmart must be a common place for addicts to stock up on such items, so I hope it creates a new policy to try to curb their own involvement in this.

  3. (Day 2)
    Williams: Hi, I had a seizure in your parking lot yesterday. I want to buy these cans of dust remover.
    Walmart Employee: A seizure you say? (should I tell my manager to call 911?). Nah. Sorry about that. Okay, here you go.
    (meanwhile in the parking lot, carts are rounded up and the rent-a-cop is on his 8th coke of the day.)

    {Day 3}
    Walmart Employee: Um, miss, where’s your drawers?
    Williams: Um, waiting in the parking lot for me to dust them off. I need to buy these cans of dust remover.
    Walmart Employee: I realize this is Walmart, but we seriously do have a dress code. Here, put this on please so I can complete your purchase.
    Williams: Thanks. And tell your security dude I appreciated the coke he brought me.

  4. Gee, so much underwhelming compassion in the comments! Wow!
    Boorish, loutish, barbarous inhumanity has become the fashion since il più grande stronzo di tutti gli enormi stronzi became ensconced in the White House

    1. The woman wrecked her own life and inadvertantly killed herself. That’s too bad, but WalMart didn’t do that to her, she did that to herself. WalMart shouldn’t have to cough up just because that woman elected to make a WalMart parking lot the site of her last binge.

    2. I bet if these same people were your neighbors, you’d be the first to try and get them removed. It’s always humanity until it is in your neighborhood.

    3. Nullifidian, or Faithless One, it’s still foul language if you speak it in Italian. Besides, is he really the biggest one? I thought that Hitler and Nero would share that distinction.

  5. If she had walked out without paying, Walmart security would likely be liable for trying to stop her. But since she purchased, they claim Walmart is liable for selling. Heads, they win, tails, you lose.

  6. Something was clearly wrong with letting a half-naked woman buy anything IN TEXAS. OTOH, in San Francisco, which is overrun with queers, butt-nekkid people are sort of de rigueur as the French say.

    That being said, where do you draw the line on stuff like this? In Louisiana, people under 18 years of age can NOT buy a can of Flex Steel, the dusting spray, or other fume emitting substances because of the danger.

    https://www.iberianet.com/opinion/columnists/carding-minors-includes-buying-compressed-air/article_85bb93f2-ff72-11e2-a52c-0019bb2963f4.html

    I think society is probably better off with Karalee Williams having gone to the great Huffing Place In The Sky. America has way too many whacked-out dimwits as it is.She was probably on welfare and food stamps and Medicaid, so to heck with her. Good riddance!

    Squeeky Fromm
    Girl Reporter

    1. people snort that crap? wow. bizarre. i have a can right here, great for keyboards.
      i hope they don’t ban it.

  7. My Walmart has about ten cashiers. Snort head could have taken her purchase to different folks for different strokes. Why should they remember her? When she came in half dressed they should have spray painted her.

  8. Nine purchases in 27 hours. So that’s 3+ shifts of Wal Mart employees, maybe 15-20 employess per shift. And yet Turley and others claim that “Wal Mart” should have know about a repeat customer. In Turley’s world, then, Wal Mart should track the purchases of every customer and have someone reviewing the data continuously to see if someone (you, perhaps) is a repeat customer. “I’m sorry, ma’am, you’ve been here 3 times in two days; we can’t sell you anymore soda.” “Sir, exactly what do you intend to do with so many nails?” How about this: “911, what’s your emergency” “Hi, we’re the Wal Mart on highway 37. We have a repeat customer here who is buying too many coils of rope; we think he’s a danger to himself and society. Please tell him he’s no longer Welcome to My Wal Mart.”

    1. That’s a good point. However, they should have security personnel monitoring the parking lot. Since the woman was loitering in the parking lot for hours on end, someone should have called the police. I wouldn’t hold to the notion that the company should be civilly liable, but it wasn’t good performance on the part of the security staff.

      1. Tabarrok – I absolutely agree with you that they handled this incident quite poorly in her final purchase.

        That said, your Walmart sounds better than mine. The security at mine consists of one man or woman who very carefully checks my receipt every time I exit. They are very careful not to profile. But if someone steals, all they have to do is jog out. No one would stop them. I don’t see any security in the parking lot. However, I don’t know if they have a security room with real guards monitoring cameras, either inside or out. They do have cameras, but I have never seen a real guard. When someone steals, they seem to call the cops.

    2. “Nine purchases in 27 hours. So that’s 3+ shifts of Wal Mart employees, maybe 15-20 employess per shift.” That’s a good point. We do not know how many different employees she interacted with. The main problem is how they handled a woman naked from the waist down purchasing aerosol dusters.

      Perhaps they were gun shy about calling the cops on a customer.

      1. Faithless One:

        OK. If you want Walmart not to sell to people who look like they are on drugs, you have to promise not to boycott, or riot, or call them racist or anti-poor when they stop selling things like cough syrup to people who look like they are on drugs.

        I don’t think they handled this right at all, but hesitate to put Walmart into the position of policing their customers for abuse of common household products. I think it will end badly on them if they call the cops on customers who are not shoplifting. After all, Starbucks had to do an apology tour when one of its stores kicked out guys who didn’t buy anything. Then they turned Starbucks into a pubic lounge and toilet for the homeless, who then drove out customers because they acted like lunatics. Then they re-enacted their customers only policy.

  9. The mother sued WalMart because they have deep pockets.

    The bovine store employees failed for hours to call the police even though this woman was loitering in the parking lot of the store. I cannot see that it’s proper to hold the corporation responsible for that unless they were following a company policy.

    1. She was naked from the waist down. Employees knew she was naked. It’s true they gave her a dress. But what if she was raped in the parking lot of Walmart. Would there be some liability if she staggered in there naked, alerting them to her state? But if there was liability, then would businesses be liable to what the homeless do to each other and themselves when they loiter nearby? Tricky.

  10. It seems that there would be an issue with one’s obligation to aid another in distress. A person who appears as described above surely fits the description of one who needs help. The precedent is the issue here. To stand and allow another to walk into traffic or show up at a Walmart ‘naked from the waist down’, ‘soiled’, etc surely demands that the police or EMTs be called. Isn’t it illegal to sell alcohol to a drunk? Shouldn’t it be illegal to sell weapons to an obviously deranged person?

    This is the line where freedoms and rights become perverse.

    1. Sounds right, but a large percent of Walmart customers have physical and mental challenges. How can employees be instructed to decide when a customer has crossed the line from obnoxious behavior to needing help. Highly trained psychiatrists are asked to determine when a person is dangerous to himself or others, and often err in making that evaluation.

      1. Sounds right, but a large percent of Walmart customers have physical and mental challenges.

        You’re really not in a position to be evaluating anyone in this regard.

    2. no drunks buy booze all the time

      no such duty. this is america not canada where everyones’ all up in yo bidness

      1. You mean that Canada that no longer treats pot smokers the same way as smack shooters, meth heads, etc? Oh that Canada. You mean that Canada whose Parliament is, on all sides, focusing on expunging the criminal records of recreational pot smokers that came along before this latest enlightenment? A society is defined on how it responds to those issues that straddle the line. Any one can deal with the givens in society. The regressive always look for a dividing line where life can be either this or that. Has never happened yet, not likely in the future. It’s that old illusion issue.

        1. Canada gets a plus one for legalizing pot.

          You guys were already lazy anyhow, that won’t hurt it. Maybe a plus since it may help mitigate the chronic alcoholism.

          but yes today Canada gets props for legalizing marijuana.

    3. Issac – it bothers me very much that they did not call 911 when she was naked.

      The only thing I can think of is that there are a lot of homeless here in CA acting crazy. I don’t know what the situation is where this Walmart is located. Did they just blow this off as another homeless addict living in the Bedlam on the street? Did she interact with different employees each time, so each one thought she had bought just one or two cans? Is there a corporate policy not to make determinations on sales like this? Is there a liability if they refuse service?

      This story troubled me, but there are multiple issues.

      1. Karen S – most Walmart employees are part-time and work the register in shifts. Given the timing she would not have seen the same person again except by accident.

  11. Holding Walmart responsible means that the various clerks over a 27 hours period were responsible and I’m not sure how they could be held responsible. You can’t assume that they knew what the dusting phenomena was ( I didn’t ) and how were they to coordinate their information over that time period in the role they played as checkout clerks. I doubt that’s in their job description. I’m sure people come into the store in a variety of “states” and Walmart clerks might be in trouble if they tried to make assumptiions about who they should or should not sell items to. Remember the woman who lost her job in St.Louis and is being called a racist though she was following the rules set out by her employer for refusing him entrance without proof of his residence in the building. Obviously it’s a sad situation but holding these clerks and Walmart responsible seems like a pretty big stretch

  12. It is a tragedy that a human being was reduced to such a sad state. But I doubt that Walmart clerks have any real authority to refuse a legal sale to an adult. That being said, I have to wonder where the Walmart managers and security were during her frequent, half-dressed visits to the store. As Darren wrote, why weren’t the police and / or EMS called? I also wonder if her mother made any effort to have her committed. It seems that sometimes there are severely drug or mentally impaired people living on the streets, all but abandoned by their relatives, who then come out of the woodwork looking for someone to sue when something terrible happens.

    1. Civil commitment and guardianship are difficult to impose as a rule. You have a problem able-bodied relative, you can try to cope with it in your home or wash your hands of it. In New York, remanding a relation to a nursing home is fairly common, because hospitals face liability if they discharge a patient to home. People who are minimally able-bodied are not candidates for nursing home placements.

  13. As a teacher, the first time I had a student go into a crying jag because of huffing, I had no idea what was happening. I just thought things were bad at school and a couple of the other girls took her to the restroom and got her under control. It was until some months later that I knew what was going on.

    Are Wal-Mart employees aware of the “dusting” problem? I was not until this article. Was she going through the same line(s)? Same checkers? Wal-Mart is not the morality police. I agree with the Fifth Circuit.

    1. Indubitably they weren’t. If I’m understanding the factual summary of the case and that summary is accurate, she was hanging around the store parking lot for much of that time. That should have triggered a call to the police. She was also patronizing the store during the overnight shift.

  14. Horrible, awful, so sad to hear of this case. Would it not be proper to call the police for her being unclothed? It’s not like that’s San Francisco.

  15. Sad that this girl wasn’t helped. Nobody thought at least to call the police or EMS? for a welfare check, given her erratic behavior. Well, then again this was Wal-Mart so there might be a different standard of abnormal.

    1. this was Wal-Mart so there might be a different standard of abnormal.

      The WalMarts where I’ve lived have been located in small towns and wage earner suburbs and are populated with ordinary working people, not skid row types.

      1. metro area of 250,000 or so, our walmarts have tons of nutcases rolling around in them.
        i go regularly for the good prices but don’t much like the visits.

        in some neighborhoods they are worse. it doesnt take much imaginations to guess which ones

      2. Tabarrok, I live in a rural area. One of the closest towns has a higher crime rate and some gang activity. A Walmart employee I was chatting with advised me not to go to the one on the other side of town during a sale like Black Friday, because there are fist fights and shootings. By women. There are definitely some characters among the shoppers at the Walmart that I prefer, but it’s not like in some of the memes and videos you can find online. At some other Walmarts, there are some very interesting fashion choices, and amazing self confidence to pull it off. I have also found that the customer service is usually pretty bad at any Walmart in our area, although there are sometimes employees who stand out. Those don’t seem to last long at the store. They probably move on to better things soon.

        I really do wish that the normal career path for teenagers would be working in restaurants and stores like Target and Walmart, learning skills such as customer service that will help them later in life. When you go to a fast food restaurant or a Walmart, you should encounter a hardworking kid, or a retiree looking for an easy job to supplement their income, rather than lower quality workers.

        1. Karen S – I have Costco and Sam’s Club close to us and my wife checks out Walmart only for the Barbies.

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