There is a notable torts verdict in Maryland where a jury handed down a multi-million dollar verdict against Walmart for selling a shotgun to an employee who used it to commit suicide. The verdict raises difficult questions over Walmart’s responsibility for the suicide of Jacob Mace, who lied to store employees, under common law torts.
The family of Mace brought the lawsuit, alleging that Walmart employees knew that he was suicidal and struggling with mental health issues. They focused on his communications with a co-worker Christina O’Shea in which he wrote about feeling “broken” and “nothing helps. I just want it to end. Goodbye.” He also wrote that he intended to “Slit wrists. Buy a gun.”
O’Shea told assistant manager, Brennan Jones, about her concerns. Jones said that police should be called and, when Mace returned to work, spoke to Mace about the company’s counseling services and asked him how he was doing. He told him that “You know, we were worried about you,” but Mace assured him that he was fine.
Neither Jones nor O’Shea was involved in selling the gun to Mace. The sale was made by Eric McLaughlin, who testified that he had no idea of Mace’s mental health struggles. Mace told McLaughlin that the gun would be a present for his wife.
The family argued that Jones should have alerted other store managers about the conversation between O’Shea and himself. Moreover, the awareness of employees like Jones was then attributed to the company as a whole.
I find the verdict concerning on a number of levels. First, employers have to straddle a difficult line between protecting employees’ privacy and addressing threats to employees or the public. In this case, Mace insisted that he was doing fine and Jones had taken steps to confirm his status.
Second, Mace lied to the Walmart employee. There was no reason why McLaughlin would refuse the sale.
The case reminds me of Tarasoff v. Regents of University of California, which I teach in my torts class. In the 1974 case, Prosinjit Podder, an Indian Graduate student at Berkeley, fell in love with Tatiana Tarasoff. When she stated that she wanted to date other men, Podder went to counseling at the University Health Service and was treated by psychologist, Dr. Lawrence Moore. When he told Moore that he wanted to get a gun and kill Tarasoff, Moore sent a letter to campus police, who interviewed Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff.
Justice Mathew O. Tobriner held that “… the confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.”
As a result, the hospital was held liable for the criminal actions of a third party — something that usually (but not always) cuts off proximate causation. It also rejects strong arguments made by doctors that such liability would create a chilling effect on counseling. A large number of patients often express their anger by focusing it on individuals and stating an intent to “kill that guy.” In the vast majority of such cases, the open disclosure allows the matter to be addressed and defused. However, if the patient knows that the doctor will have to tell authorities, such feelings are less likely to be expressed and addressed.
In this case, you have a retailer with an employee who expressed suicidal ideations. Jones did the right thing in seeking police involvement and then personally speaking with Mace. According to this verdict, the store should have barred the purchase. But for how long? What steps are necessary to satisfy this duty?
As with Tarasoff, there is no clear line on what employers should do and when they should do it.
The Second Amendment protects the right to gun ownership, though that right is not absolute. Additionally, this employee has privacy rights. Indeed, a memo to all employees could have been the subject of a different tort action for the disclosure of embarrassing private information, negligent infliction of emotional distress, or other claims.
From the perspective of Jones, he had one employee who expressed concerns over another employee’s mental health. He spoke to the second employee, who assured him that he was doing fine. Under these circumstances, Mace could have purchased the gun from any other store.
This is a tragic case, and it may be difficult to overturn on appeal. I understand the family’s anger that more could not have been done to save Mace from himself. I am unsure of how far the store could have gone. Jones would have needed to tell all employees not to sell Mace, any sharp objects, guns, or products capable of inducing overdoses or harm. That could trigger a lawsuit. If he fired or suspended Mace, he might be sued under disability laws.
If he did fire or suspend Mace, it is not clear that a gun sale could be withheld without something more than the word of a friend when the individual is denying such ideations. The right move is to seek police intervention, which Jones suggested.
The complaint does allege that Walmart had a “blacklist” for individuals who were suspected of any mental problems. If so, that does raise a legitimate question about why Mace was not added to the list, at least as a precautionary matter. However, these are difficult and fluid circumstances for a manager to address, particularly in a relatively short time period.
The jury awarded approximately $2.5 million in economic damages and $8 million in non-economic damages. Those damages may be reduced due to state caps on non-economic damages.
Here is the complaint in the case: Brady v. Walmart
And if Walmart refuses to sell a gun to a customer, presumably it could be sued for that. Damned if you do….
This case shows what happens when liability is detached from personal agency. Taken to its logical end, we would have to ask why car manufacturers are not liable for carbon monoxide emissions, or homebuilders for garages with doors. Once intent is displaced, the list of potential defendants becomes endless.
You could even extend that logic to family members, who knew him the longest and had the most opportunity to intervene, yet we rightly reject that idea because adults are responsible for their own choices.
Walmart did not create the intent and could not realistically eliminate access to all possible means. Even denying a single firearm sale would not prevent alternative purchases or methods. Without a limiting principle, tragedy becomes a basis for limitless liability.
This verdict appears driven by hindsight rather than a workable legal standard and should be appealed.
Provided the gun was purchased legally, the only party responsible for the suicide is the man who stuck a loaded gun to his body and pulled the trigger. It is unjust and unfair to hold Wal-Mart or anybody else responsible for HIS conduct.
The lawyer exploiting the grief of the family, and the family themselves, must know in their hearts that Mace alone is responsible, But the sleezy lawyer and the greedy family chose to pretend they could transfer responsibility to an innocent party so they could get a big fat payout. Now that they’ve got their $millions, does that magically make them feel better that Mace chose to kill himself? Does lots of money alleviate their grief?
The jurors are even worse than the sleezy lawyer and the family for voting the way they did.
Two tragedies here: 1) the suicide; and 2) the jury’s misguided, unfair, unjust decision.
I think the jury erred in this verdict. Prof. Turley is correct that suicide and murder ideation alone are so commonplace that they are useless as predictors. It’s a needle in a haystack problem to actually predict who will act out.
The jurors here made the mistake of ex post facto reasoning — they projected onto the Walmart employees something nobody could possibly know at the time, and only became known to everyone after the fact. It’s a common mental mistake. It’s a “you should have known” assertion, a negative emotional feeling not based on fact or probabilities.
For Walmart, the judgment is merely noise. In the law, this situation is somewhat vague, and one could justify any outcome. The ambulance chaser that signed up the family was taking a longshot, and won.
Prof. Turley made a sound case for overturning the verdict, but oddly went on to say overturning on appeal would be difficult. Did he say that because he thinks the appeal would be heard by judges unfriendly to gun rights? It seems to me the Protection of Lawful Commerce in Arms Act could be deployed here.
Come on MAN! It’s the Democratic Peoples Republic Of Maryland (DPRM) and like North Korea the state finds you guilty then tells you your crime! While the $10 Mill is a rounding error for Wally the alleged BLACKLIST should lead to abundant Trial Lawyer discovery requests followed by Ambulance Chasers seeking those Bad Boys and Girls as clients for many Millions in settlements. ANSWER – go to work for Wally act like a NUT; get on the BLACKLIST; get a lawyer and never have to work again! The American Lottery Dream!!! Calling all WACK JOBS.
Too often ambiguity and gaps in the law are exploited by the plaintiffs bar when deep pockets, such as Walmart are concerned.
Did the person who commented suicide have a bad case of TDS?
I am not my brothers keeper.
So if I slit my wrists to commit suicide is Gillette liable? If I drive my Chevy into a Semi to commit suicide is Chevy liable? If I take an overdose of sleeping pills to commit suicide is Pfizer liable? If someone commits suicide by jumping off a tall building is the building owner liable? If someone jumps of a high Interstate or state bridge over water and commits suicide is the Federal or State liable?
It is ridiculous, only because it is a gun and Walmart should appeal and get it overturned.
Anon, please seek help immediately. Do not get Turley in trouble.
So if I slit my wrists to commit suicide is Gillette liable? What if its an off label brand?
Nothing to offer as usual from ANON!! Anon posting DUMB things daily 24 hours per day. USELESS!
Another example of the law being used to punish firearm transactions. Disgusting verdict. Let’s not sell a car to someone who told another person he has a drinking problem, because he might drive drunk.
If you knew the person has a drinking problem, then you should make the motor vehicles dept. aware of it.
I need to report you for being off your TDS meds!!
Nonsense.
That is just plain dumb on so many levels.