Evan Schuman's StorefrontBacktalk

Attorney Mark D. Rasch is the former head of the U.S. Justice Department’s computer crime unit and today is a lawyer in Bethesda, Md., specializing in privacy and security law.

Walmart (NYSE:WMT) was very recently sued by a woman involved in a car accident. The driver of the car that hit her wasn’t a Walmart employee, it wasn’t a Walmart vehicle, and it didn’t happen in a Walmart parking lot. Rather, the victim alleged that the driver had recently been in a Walmart and had been kicked out for being drunk. The victim alleged that Walmart, knowing that its customer was both drunk and driving, had a duty to prevent the customer from driving, or to report that person to the police. The court considering the case refused Walmart’s efforts to have the case dismissed on summary judgment, finding that there was at least enough evidence of “negligence” to allow the case to go forward.

In English common law, the courts and legislatures established what are called “dramshop” acts, laws that imposed a duty on innkeepers and tavern owners for the acts of drunk customers. These laws continue today, either by statute or case law, and impose duties upon certain organizations (typically bars and restaurants) as well as imposing liability for the acts of the people they get drunk. Although these laws may not apply by their terms to Walmart (nobody alleges that Walmart served the patron alcohol.), the idea is that the merchant is in a position to know about the potential harm (possible drunk driver) and has the ability to control or regulate the conduct (in the case of the bar, to stop serving; in Walmart’s case, to call the police) has a duty to act “responsibly” and prevent the harm. At least that is the plaintiff’s claim in the Walmart case.

Here’s where technology makes things messy. Once the drunk is tossed out of the Walmart, there’s a good argument that Walmart’s duty to third parties ends. After all, Walmart doesn’t know who the drunk is, how he got to Walmart, whether or not he owns a car, or how he left the store–on foot, by bus, by taxi or by private car. Walmart could argue that it had no duty to prevent the guy from driving because it had no way of knowing that the guy was driving, right? Um… Not so fast, kemosabe.

You see, Walmart has installed and routinely monitors parking lot cameras. These may or may not be equipped with software that captures license plates, and they may or may not integrate with a CRM database. Their software could track customers en route to the store, and could track them inside the store as well. It could also track them on the way out of the store. So let’s just say hypothetically that the cameras capture our drunk driver parking in the lot and walking (a straight line) into the store. Then the inside cameras capture our drunk man moseying to the liquor section, and buying a few pints (or even removing his own flask and taking a few dozen swigs).

Then our customer staggers out, or is tossed out. Assuming Walmart monitors or has the ability to monitor its cameras, a jury could find that Walmart, as an entity, “knew” that the guy it tossed was drunk, and also that it “knew” that he drove there, and “knew” that he was driving out. Couple that with

the ability to control the drunk (a debatable point), and voila! Instant liability. Maybe. But here’s where things get maddening.