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.”