Mililani Walmart Assault

This is an appeal by plaintiff O'Neal and Sanders Corporation from summary judgment granted in favor of defendants, Minn. Star Retail Stores, Inc. (MSR) and Big Box Stores, Inc. (BBSt) in favor of plaintiff O'Neal, for injuries suffered as a result of an assault involving defendant Minn. Star Stores.

This action resulted from an incident that occurred on the afternoon of September 19, 1989, on the backside of the Star Credit Union on Minnehaha Parkway in St. Paul, Minnesota, in the course and scope of employment with defendant Minn. Star Stores.

On the afternoon of September 19, 1989, a group of Star employees was selling clothes and soft shoes in the parking lot in front of the property occupied by defendant Big Box Stores. Sometime around the evening closing time, "about 12:55, someone said they were going to attack the merchandise and take it and throw it, or take it away.

The employees were taking coats out of the shopping carts into the carport area and putting them in the black SUVs when someone walked in with a blue assault rifle and began firing a round at what was being operated by the employees. The bullet, fired from an M-16A1 assault rifle, entered the back right shoulder of plaintiff O'Neal's right shoulder near its insertion point which was approximately in line with a vertebral body between T-8-9 and T-10. The shoulder pain and pressure developed a day later. The bullet caused significant damage to the shoulder socket and cost a patient his ability to return to work.

Before this point, both parties agree that the employees and defendant Minn. Star Stores were employees and that the M-16 type assault rifle introduced by defendants is a machine gun. The bullet, as well as others fired from the M-16A1 assault rifle by the assailant or someone accompanying the assailant was fired from almost on top of the building and was thus within "line of fire" during the shooting as defined by Minn. Stat. Ann. § 904.06, subd. 3(2) (West Cum.Supp.1989) but slightly inside of the line of fire as discussed above with respect to the gun issue.