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Commercial Appeal, The ( Memphis , TN) - Sunday, December 8, 1996 Author: Laurel Campbell The Commercial Appeal

Mid-evening, 19 days before Christmas.

For a split second, Mall of Memphis security manager Richard Patrick thought the couple was playing. Then he heard the angry yells and saw the woman pull the man's glasses off his face and fling them to the asphalt.

Patrick jumped out of his patrol vehicle near a mall entrance, separated the fighting couple and called for backup security officers. Only a few holiday shoppers even noticed the domestic dispute, which was quickly resolved.

Owners and managers of Memphis -area malls and shopping centers become even more security-conscious as the holiday season generates extra traffic. And a Tennessee Supreme Court decision in late October is not a welcome present for retail center managers this holiday season.

The court overturned two lower court rulings and cleared the way for the family of Dorothy McClung to pursue a $20 million lawsuit against Wal-Mart and the Delta Square Shopping Center on American Way.

In 1990, McClung was kidnapped at gunpoint from the center's parking lot and forced into the trunk of her Volvo, where she suffocated. Joseph Harper II, 16, pleaded guilty in May 1991 to kidnapping, raping and murdering McClung. He hanged himself a month later.

The McClung family's civil lawsuit charges Wal-Mart and Delta Square with negligence in failing to provide security for the parking lot. The case is set for trial next November.

This is a major change, said University of Memphis law professor Mike Roberts, because Tennessee's highest court had ruled in 1975 that store owners do not have a duty to protect customers against criminal acts of third parties unless they know the acts are occurring or are about to happen.

This is simply the recognition of the logic that other state supreme courts have recognized - that the landlord is best able to take reasonable measures to prevent violent crime in his parking lot, Roberts said. Reasonable protection doesn't mean having armed guards all over the parking lot. It may mean someone driving around in a car with lights on top.

Security cars with flashing rooftop lights are a common sight in Memphis malls and shopping centers.

Golf carts complement the bicycle and foot patrols and security cameras in the parking garage at Oak Court Mall , said manager Tammy Bigit.

We do increase our patrol for the holidays, for the extra crowds we have, Bigit said. We put most of our energy in the exterior of the mall , where there is opportunity for deterrence.

Saddle Creek shopping center in Germantown also beefs up security during the holidays, primarily for crowd control, said Terry McEwen of Poag & McEwen, the center's management company.

At Saddle Creek, we have security year-round, day and night, McEwen said. Saddle Creek is perceived to be a safe place to shop, and we want to continue to let customers know that.

Urban Retail Properties Co. has worked to change shoppers' perception of the Mall of Memphis since the Chicago-based company started managing the mall in mid-1994. Two years earlier, on Sept. 1, 1992, a mall shop manager, 71-year-old Louise V. Warren, was shot to death in the parking lot after closing her store.

In reaction, the mall 's management company at the time built four 10-foot high guard towers in the parking lot.

That was a knee-jerk reaction, said Mall of Memphis manager Ray Baxter. We took them down a year after we took over. The negatives outweigh the positives.

I can better utilize the five people it took to man the towers moving inside and outside the mall . Being seen is the best deterrent to crime, security manager Patrick said.

The Mall of Memphis puts unarmed security officers in three Ford Explorers and four courtesy carts (modified golf carts) to roam its 95-acre site.

We look for elderly people, mothers with small children and people with lots of packages to give them rides to their cars, Patrick said, as he steered a courtesy cart around the mall parking lot one evening this past week. The secondary purpose is visibility.

As he drove, Patrick watched. He watched for people sitting in stationary cars. He watched for open car doors or trunk lids. He watched for confused shoppers looking for their lost cars.

About 95 percent of all the vehicles reported stolen here are actually just lost, Patrick said. We pick up the owners, take them around the lot and they're tickled to death when we find their cars.

Patrick spotted a man sitting in a car and went to ask, Is everything OK? Turned out the man was trying to fix the dome light in his car.

That phrasing is less offensive than alternatives, Patrick explained later.

If you go, 'What are you doing?' people get on the defensive, Patrick said. But if people are just sitting in their cars, I need to know why. We do not allow loitering.

Back inside the mall , Patrick stopped at Reeds Jewelers. Manager Jan Doyle had earlier requested and gotten a walk-through by a security officer.

We had a customer who came in last Saturday and tried to write a bad check that we refused, Doyle said. When he came back tonight, we called for a walk-through. But he bought what he wanted with cash.

As he strolled the mall , Patrick watched for large, roaming groups of people.

This is a place of business, not a community center, Patrick said. You can't come here to hang out.

The unusual might also catch his eye - like a big shopping bag from Goldsmith's, which does not have a store at Mall of Memphis .

It could be a booster bag, a shopping bag lined with duct tape that shoplifters use because they can walk through a store's sensors without setting them off, Patrick explained.

Mall of Memphis manager Baxter said security isn't increased for the holidays because it's a high priority year-round. Nor has he or other mall managers interviewed changed procedure in light of the court decision on the McClung lawsuit.

The Tennessee Supreme Court decision does disturb me, although no jury has heard the case yet, Baxter said.

If a jury finds in favor of the McClungs, the message is: If you operate any kind of commercial real estate and anything bad happens on your property, you can be sued and hauled into court, Baxter said. Does that mean McDonald's or the dentist or the dry cleaners? Does everyone have to have a security guard ?

The unanimous decision to allow the McClung suit to go to trial was written by former Tennessee Supreme Court Justice Penny White, who heard the case before she was voted out of office last August.

We conclude that the proof would support a finding that the risk of injury to plaintiff's wife was reasonably foreseeable, White wrote. . . . the question of duty and whether the defendants have breached that duty by taking or not taking certain actions is one for the jury to determine.

Baxter said shopping center managers do practice a doctrine of reasonable foreseeability.

If there has been a history over time of criminal acts on my property and I knew about it and didn't react, a plaintiff can make the case I had reasonable foreseeability and didn't take any steps, Baxter said. (The building of) the guard towers at the Mall of Memphis was in reaction to the shooting, to show people what the mall was doing.

But, said Saddle Creek's McEwen, it would be impossible to protect against all potential crime in a public setting. Caption: photo By Shoun A. Hill Security chief Richard Patrick stands out in the open as he watches for any unusual activity at the Mall of Memphis . Being seen is the best deterrent to crime, he said.