AMICUS NEWS
No. 11. January 17,
1997
TENNESSEE BROADENS
PREMISES LIABILITY TEST FOR FORESEEABLE CRIMINAL ATTACK ON BUSINESS INVITEE.
The Supreme Court of Tennessee
adopted the majority position recognizing liability of a shopping center for
a foreseeable criminal attack on a patron in its parking lot. McLung v.
Delta Square Limited Partnership, No. 02S01-9512-CV-00122 (Tenn., Oct.
28, 1996) is a premises liability case. Mrs. McLung was abducted from a Wal-Mart
parking lot, raped and murdered. Her family brought suits against the owners
and op erators of the shopping center, alleging that there was inadequate
security in view of the previous criminal activity in the area. The trial
court granted summary judgment to defendants, following a 1975 decision of
the Tennessee Supreme Court holding tha t business premises owners owe no
duty to protect invitees against criminal attacks.
On appeal to the Tennessee Supreme Court, AAJ urged the court to abandon
its previous position and adopt the modern view imposing a duty to provide
reasonable security for invitees. Following a review of the law in other jurisdictions,
the Court join[s ]]those courts which generally impose a duty upon businesses
to take reasonable measures to protect their customers from foreseeable criminal
attacks.
FIFTH CIRCUIT DENIES
PREEMPTION FOR MEDICAL DEVICE.
Borskey v. Medtronic,
Inc., No. 95-30303 (5th Cir., Dec. 9, 1996) is an action against the
manufacturer of the Syncromed Infusion Pump, an implant device used to deliver
certain drugs. Plaintiffs alleged that the pump was defective under Louisia
na products liability law and that defendant improperly promoted the use of
the device for demoral infusions, in violation of FDA regulations, causing
the pump to fail. The district court dismissed the action as preempted by
the Medical Device Amendments to the federal Food Drug and Cosmetic Act. On
appeal to the Fifth Circuit, AAJ filed an amicus brief arguing against preemption
of plaintiffs cause of action. On the basis of the Supreme Courts decision
in Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996), the Fifth Circuit
ruled that p laintiffs claims based on violations of federal standards are
not preempted. As to the claims grounded in state law, the court remanded
to the district court for a preemption determination with respect to each
separate cause of action.
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