South Park devotees will no doubt remember the character Towelie, a drug-addicted towel with a surprisingly annoying personality.  One of his scenes was essentially a model for a recent case in Texas (and after you’ve watched it, maybe watch a few other cartoons, because today’s casenote is kind of depressing).

On 10-11 April 2016 Karalee Williams made nine visits to a Walmart store in Houston, Texas.  Each time she bought tins of dust removing spray.  She bought at least sixty tins of spray, each time returning to her car in the parking lot to inhale it.  On her second visit to the store she was noticed to have soiled herself and to have vomit in her hair.  On her third visit she was naked from the waist down.  The staff gave her a sundress and otherwise continued to serve her.  On the morning of 12 April 2016 she died of an overdose of Difluoroethane inhaled from the tins.

Karalee Williams
Karalee Williams (Image from Facebook).  Personal injury lawyers – plaintiff and defendant – can get awfully jaded.  Sometimes we forget that real people are at the heart of what we do. Photos remind us that every litigant is a person who ended up somewhere they never wanted to be.

Williams mother sued the store operator and a number of other parties.  Proceedings were commenced in the 11th Harris County District Court.  They were removed to the US District Court for the Southern District of Texas.  The plaintiff, represented by Jeffrey Steidley, relied on a number of grounds to establish negligence.  Several grounds relied on Texan statutes, but one in particular may be of general interest to common lawyers: the plaintiff alleged that the defendant’s employees had assumed (and breached) a duty when they took steps to assist the deceased by providing her with a towel and a sundress.

Walmart (represented by Daw & Ray LLP) sought dismissal of the claim, which was granted.  The plaintiff appealed to the Fifth Circuit Court of Appeals.

The appeal was dismissed.  Concerning the allegation of negligence mentioned above, the Court agreed that a duty to use reasonable care could arise where –

  1. A undertakes to perform services necessary for B’s protection
  2. A fails to exercise reasonable care in performing those services; and either –
  3. B relied upon A’s performance, or
  4. A’s performance increased B’s risk of harm.

Here there was  no allegation that Walmart’s staff had caused Williams to rely on them or that they had increased her risk of harm.  As a result no duty of care arose.

Allen v Walmart Stores LLC, 907 F.3d 170 (5th Cir., 2018)

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