A federal judge has dismissed a lawsuit against Shaw’s supermarkets brought by the family of a woman who was murdered by a knife-wielding attacker inside the company’s Saco store in August 2015.

The supermarket’s staff could not have reasonably foreseen the random attack and cannot be held responsible for failing to prevent it, the judge ruled.

Wendy Boudreau

Wendy Boudreau, a 59-year-old grandmother, was grocery shopping when she was attacked by Connor MacCalister, 35. Boudreau died of her wounds and MacCalister pleaded guilty to murder less than two months later and was given a life sentence, which MacCalister requested.

MacCalister, who is being held at the Maine Correctional Center in Windham, has at times identified as a transgender man, but current court records refer to MacCalister as a woman, and the Department of Corrections lists MacCalister as female in a public inmate database.

The suit was brought by Jeffrey Boudreau, Wendy Boudreau’s husband, and the personal representative to her estate. The action was filed in 2017 in U.S. District Court in Portland, and sought damages from the Massachusetts-based supermarket chain because Boudreau suffered conscious pain and suffering between the time of the attack and her moment of death at a nearby hospital, and alleged that the supermarket was culpable in Boudreau’s wrongful death and had a duty to prevent it.

After extensive litigation, discovery and depositions, Judge D. Brock Hornby ruled Thursday that despite an extensive record of MacCalister’s odd and sometimes disturbing behavior at or near the supermarket, Shaw’s management could not have reasonably foreseen MacCallister’s attack.

Testimony in depositions revealed that MacCalister was a regular customer at Shaw’s and shopped there almost every day. MacCalister often wore baggy military fatigues, had Nazi tattoos that scared other patrons and had a disturbing, intense look on her face and often clenched her jaw.

In one instance in 2011, MacCalister was seen smoking discarded cigarette butts found in an ashtray outside the store, scaring patrons. Shaw’s managers at the time banned MacCalister for a year, but MacCalister returned after the ban ended and continued to shop there regularly until the attack.

Documents obtained during the lawsuit showed that MacCalister had a lengthy history of mental illness and exhibited psychosis, homicidal rage, threatening and violent interactions with other Saco community members and her own family, and was known to local police.

Boudreau’s attorney, Laura White, a partner at Bergen Parkinson Attorneys in Kennebunk, said she plans to appeal the ruling to the First Circuit Court of Appeals in Boston.

“We believe that a jury should have been allowed to make the foreseeability determination in this case, not the court,” White said in an emailed statement. “The summary judgment record contained a mountain of evidence about Connor MacCalister’s behavior toward customers and employees of Shaw’s. The facts and inferences to be drawn from them made it entirely foreseeable that she posed a threat to customers at the store. As Judge Hornby anticipated, we will ask the First Circuit and perhaps the Law Court to weigh in on the foreseeability issues in this case.”

But MacCalister was not violent when she was in the store previously, and Shaw’s did not have access to MacCalister’s medical, criminal or family history, and even though some employees were aware of MacCalister’s odd mien and employees found MacCalister’s behavior scary, Shaw’s management could not be expected to anticipate an unprovoked murder, Hornby wrote.

“MacCalister’s appearance and behavior in Shaw’s scared some customers and sometimes made a customer service representative feel awkward or uncomfortable, and her clothing and shopping behavior made her a suspect for shoplifting,” Hornby wrote. “Viewing this record in the light most favorable to the plaintiff, I conclude that what Shaw’s knew, should have known, or should reasonably have anticipated did not suggest that on August 19, 2015, MacCalister was a danger to other customers.”

Under Maine law, a business or establishment may only be liable when its owners or proprietors have reason to anticipate such an assault, and fail to exercise reasonable care under the circumstances to prevent or interfere with it.

To determine liability, a two-part analysis is prescribed in state law. First, did the store or business have notice that its facility generally presented a risk that third parties would assault its patrons, and second, did the store or business know, or should it have anticipated that person who committed violence would assault a patron on the day in question? On these points, Hornby found in favor of the supermarket.

“Wendy Boudreau’s August 2015 murder in the Saco Shaw’s ice cream aisle was a shocking, tragic event. Could or should police and health care personnel, with the information available to them, have appreciated MacCalister’s danger to others and taken steps to thwart it? I don’t know,” Hornby wrote. “But the summary judgment record does not support the conclusion that either generally or on the day in question Shaw’s’ personnel knew or reasonably should have anticipated that MacCalister posed a danger to other customers in its Saco store. ”

 

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