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A Wal-Mart employee who sued the store for selling bullets to her estranged husband that he used to shoot her in the head just minutes later has lost her bid to revive a negligence suit that said the attack should have been prevented. In a two-page per curiam opinion in Midgette v. Wal-Mart, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals upheld a January 2004 decision by Judge Franklin S. Van Antwerpen that rejected both of the plaintiff’s theories of liability. In the suit, Marsha Midgette alleged that Wal-Mart was negligent in not protecting her from her husband, Bryan, and that the store also engaged in “negligent entrustment” by selling Bryan the bullets ultimately used in the shooting. According to court records, Bryan Midgette purchased the bullets at a Wal-Mart store in Pottstown, Pa., on Aug. 30, 1999, and then immediately chased down his wife, an employee of the store, and shot her in the head before turning the gun on himself and committing suicide. Plaintiffs attorney Louis Aurely III of Wusinich Brogan & Stanzione in Downingtown, Pa., alleged that Bryan Midgette had physically abused his wife three days before the shooting and was under a protection from abuse order. The suit alleged that Wal-Mart knew of the abuse and also knew that Bryan Midgette had continued to visit the store where his wife worked after the court order was issued. In his January 2004 decision, Van Antwerpen found that the suit was fatally flawed because the plaintiff was unable to show that Wal-Mart’s actions or inactions were the proximate cause of the shooting. “We find that, even if defendant had carried out all the duties that plaintiff believes defendant owed, Bryan very likely still would have succeeded in shooting his wife,” Van Antwerpen wrote. “As such, no reasonable jury could find that, but for the actions and/or omissions of Wal-Mart, Bryan would not have shot his wife that night.” Now the 3rd Circuit has upheld Van Antwerpen’s decision with a tersely worded two-page per curiam opinion. Circuit Judges Samuel A. Alito Jr., D. Brooks Smith and Theodore A. McKee said Van Antwerpen had “carefully and thoroughly explained [his] reasons for denying Midgette the relief she seeks and granting summary judgment to the defendants. We need not engage in a redundant analysis simply to reach the same result.” Wal-Mart was represented by attorney Patrick J. McDonnell of McDonnell & Associates.

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