Harned: Businesses may be hurt by Chattanooga Walmart case

Harned: Businesses may be hurt by Chattanooga Walmart case

September 10th, 2013 by Karen Harned in Opinion Columns

Suppose you're at work, and someone comes in who's disorderly and possibly drunk. What would you do?

If a Tennessee Court of Appeals ruling is allowed to stand, you couldn't just throw them out, because that could land you in court.

The ruling came in a case called Cullum V. McCool, and it's a good example of the uphill battles that employers sometimes have to fight to get a fair hearing in the nation's courts.

The case is now headed to the state Supreme Court. If the appellate court ruling is allowed to stand, it could have a chilling effect on everyone who does business in the state of Tennessee, from the biggest chain stores to the smallest family business.

The gist of the case is this: Jan McCool was kicked out of a Chattanooga Walmart for being belligerent and acting drunk, according to news reports. In the parking lot, she backed up and struck another customer, Jolyn Cullum.

Cullum says her injuries were Walmart's fault. She says the store didn't do enough to keep her safe.

A Hamilton County judge disagreed and dismissed the case, but Cullum went to the Court of Appeals, which said the lawsuit should be reinstated. The case is now before the state Supreme Court. My group, the National Federation of Independent Business Small Business Legal Center, is asking the Supreme Court to overturn the appellate court's decision and dismiss the lawsuit.

We stepped in because this seemingly simple case could potentially hurt all employers in the state, especially small businesses, who can't easily afford to fight such litigation and stay in business.

By allowing the case to proceed, the Court of Appeals would put employers between a rock and a hard place.

The appellate court suggested that the store should have called the police, but let's think this through: A retail store isn't like a bar or restaurant. Store clerks and managers aren't trained to tell whether someone's intoxicated or how to respond. In fact, there's no requirement under Tennessee law that retailers train employees how to handle possibly intoxicated customers.

So, suppose a store manager calls the police. What happens then? What if the customer becomes violent while they're in the store? What if the customer tries to leave before the cops get there?

You could say that a major retailer ought to have a plan in place, regardless of what state law requires, but where do you draw the line?

Suppose you're the owner and sole employee of a consulting business that operates out of your garage. Suppose someone drops by to talk about a job, and he's drunk. You're alone, remember. Shouldn't you be allowed to kick him out?

It isn't fair to expect employers to police their customers. The NFIB Small Business Legal Center is asking the Supreme Court to reverse the decision of the Court of Appeals and agree that the trial court acted properly in dismissing the original claim.

If the Supreme Court upholds the appellate court's decision, the only way a small-business owner could avoid trouble would be to lock the doors and never let anyone in.

Karen Harned is the executive director of the NFIB Small Business Legal Center in Washington. NFIB is Tennessee's largest small-business association, and the Legal Center recently filed an amicus brief in the lawsuit against Walmart that's going before the state Supreme Court.