Congratulations to KDC amicus writer Ryan Nafzinger of Phillips Parker Orberson & Arnett for the defense victory before the Kentucky Supreme Court in Walmart, Inc. v. Reeves, 2021-SC-0288-DG (Feb. 16, 2023).  The Kentucky Supreme Court's unanimous opinion explicitly limits the holding of Shelton to open and obvious cases.  Great work, everyone!

The underlying case involved negligent security claims for third-party criminal acts.  The case hinged on the question of foreseeability in the context of a premises owner’s duty to protect against criminal acts, and who decided that question.  A landowner typically has no duty to prevent third-party criminal acts that occur on its premises.  However, there is a duty when those third-party criminal acts are foreseeable.  In this case, Walmart had been successful in obtaining summary judgment following the assault of a Walmart patron in a store parking lot by a third party.  Walmart argued that because such an event was not foreseeable, Walmart had no duty to provide security or otherwise take measures to prevent the attack and thus, as a matter of law, could not be liable.  The Plaintiff, using a variety of crime statistics and prior incident reports, argued the opposite.  The trial court conducted an analysis of that evidence, determined the evidence was not sufficiently similar in character so as to make the assault foreseeable, and granted summary judgment in Walmart’s favor because of the lack of duty.  At the Court of Appeals, the Plaintiff argued (in the style of Shelton and McIntosh and their progeny) that the question of foreseeability was a question of fact for the jury to decide.  In other words, all premises owners have a general duty to protect against foreseeable criminal acts, and the question of whether the acts are foreseeable is a question for the jury to decide in determining whether the premises owner breached that duty.  The Court of Appeals sided with the Plaintiff and reversed summary judgment.  Fortunately, the Kentucky Supreme Court found otherwise.  The Kentucky Supreme Court explicitly limited the holdings in Shelton to open and obvious cases, and found that the question of foreseeability in the context of negligent security cases was a question of law for the trial court to decide.  Going forward, for a plaintiff to prevail on a claim for negligent security, the plaintiff must establish that the criminal act was foreseeable before the duty to prevent or protect against that act can be established.  This gives premises owners an achievable route for obtaining summary judgment in cases where the act was not foreseeable.  Most importantly, this is a question for the trial court to decide as a matter of law.