Whether foreseeability of harm is a factual issue for the jury in a premises liability case

QUESTIONS PRESENTED Petitioner Jeffrey Boudreau’s wife Wendy was murdered at the Shaw’s Supermarket in Saco, Maine on August 19, 2015. The murderer, a regular customer who had previously been banned from the store for scaring customers, visited Shaw’s twice on August 19, 2015. The second time, she walked through the store with a determined gait, frightening appearance, and an odd demeanor. The murderer found her victim standing alone in the ice cream aisle and slit Wendy Boudreau’s throat. The voluminous evidentiary record on summary judgment included direct testimony from other witnesses who reported being stalked around the store by the murderer and employees who were uncomfortable with or threatened by her. Petitioner offered sworn testimony from a retail security and loss prevention expert who opined that harm to Mrs. Boudreau was reasonably foreseeable and preventable. In violation of this Court’s precedent in Daubert and Kumho, which mandates a gatekeeping analysis of expert testimony under Rule 702, the First Circuit affirmed the district court’s grant of summary judgment in favor of Respondent. The questions presented to this Court are as follows: 1. When a legal duty exists in a premises lability context to protect business invitees from reasonably foreseeable harm, is the question of foreseeability a factual issue that must be decided by the jury? 2. If foreseeability of harm is a factual issue, may a trial court sitting in diversity dispense with the Daubert/Kumho gatekeeping function of assessing the admissibility of expert evidence on summary judgment, when the proffered retail i security/loss prevention expert determined that harm to a customer was reasonably foreseeable?