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Lawsuit against Walmart over police pursuit of alleged shoplifter dismissed

An off-duty officer was injured while chasing a shoplifter

A state appeals court has dismissed a lawsuit filed by a man who was hit by a police car that was pursuing an alleged shoplifter.

Plaintiff Corey Brown filed the lawsuit seeking damages for injuries he suffered when he was hit by a vehicle operated by an Amherst Police Department (APD) officer during the pursuit of the man who allegedly stole merchandise from a Walmart store.

Brown sued Walmart and Walmart sued the town. In January 2022, in Erie County, state Supreme Court Justice Paul Wojtaszek denied a motion filed by Wal-Mart seeking to dismiss the complaint and dismissed the complaint filed by Walmart.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed Wojtaszek’s ruling, granting the motion to dismiss the complaints against Walmart and the town.

Brown, who was an off-duty APD officer, responded to the scene, along with several on-duty officers. When the alleged shoplifter left the store without paying for merchandise, APA officers confronted the suspect and he fled.

During the chase, Brown was hit by an APD vehicle, causing him serious injuries.

Brown’s attorney, Samuel J. Capizzi, argued that Walmart negligently trained its asset protection associates (APAs).

Walmart Sued the town seeking indemnification on the ground that it was the town’s employee, and APD officer, who was responsible for Brown’s injuries.

The town filed a counterclaim against Walmart seeking reimbursement for money paid to Brown.

The town moved for summary judgment dismissing the third-party complaint, and Walmart moved for summary judgment dismissing the amended complaint and third-party counterclaim against it.

Walmart contends that it owed no duty to Brown and that Wojtaszek should have granted their motion.

“We agree,” the Fourth Department wrote.

“Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff . . . Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm,” the court wrote.

Regardless of whether the APA violated Walmart’s internal policy, any alleged violation of Walmart’s internal policy did not create a duty flowing from Walmart to plaintiff, the court wrote.

Plaintiff was an off-duty police officer responding to an alleged criminal event who never entered the store. He was not one of those covered by the goal of the policies, according to the decision.

“There is no basis to conclude that Walmart had any control over plaintiff or his coworker, i.e., the actual tortfeasor, such that Walmart should be held to owe a duty to plaintiff,” the court wrote.

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