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Known Threat Creates Potential Liability For Retailer In Shoplifting Case (PA)

December 16, 2022

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The Eastern District of Pennsylvania found that retailers can be found negligent when one customer attacks another and the store had reason to know that the attacker was likely to present a threat. In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2022/12/Cimbat-v.-Old-Navy-LLC.pdf">Cimbat v. Old Navy LLC</a></em>, Rebecca Cimbat was assaulted by fellow shopper Ikea Lynch.  Prior to the incident, Cimbat had approached Lynch and accused her of shoplifting. Cimbat then informed the store of her accusations against Lynch.  Cimbat brought claims of negligence and intentional infliction of emotional distress (IIED) to adequately warn and protect Cimbat from Lynch and failed to adequately train its employees to respond to such situations. Old Navy filed for summary judgment on both claims.

The Court dismissed the claims for IIED finding that the Old Navy’s conduct did not rise to the level of “sufficiently outrageous,” and that there was no evidence that acted intentionally or recklessly in failing to adequately warn, act, or train. “Cimbat’s evidence does not demonstrate that the employees proceeded with, “deliberate disregard” by failing to warn or take further precaution in the face of a substantial risk or high probability of emotional distress.”

However, the Court found that a reasonable juror could conclude that Old Navy was negligent and its negligence was the proximate cause of Cimbat's injury. Cimbat has presented enough evidence that Old Navy “had reason to know that Lynch could be dangerous” because Cimbat had reported his shoplifting and employees had observed that Lynch was likely under the influence. The Court held that Old Navy could be found to have failed to take precautions against Lynch’s behavior. Cimbat’s claim for negligence survived summary judgment. A heightened standard may exist for retailers when it comes to protecting customers against in-store third-party attacks -- especially when retailers have knowledge of possible altercations and/or fail to prevent them.

Thanks to Jean Scanlan for her assistance in this post.  Should you have any questions, please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.

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