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.