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Cort v. Marshall's Department Store

United States District Court, E.D. New York

December 18, 2017




         Plaintiff Caroline Cort brings this diversity action against Marshalls Department Store ("Marshalls" or "Defendant"[1]) for injuries that she incurred when she was attacked in a Marshalls location in Brooklyn. Before the court is Defendant's motion for summary judgment. (Def. Mot. for Summ. J. (Dkt. 36).) For the reasons that follow, the court GRANTS Defendant's motion.

         I. BACKGROUND

         This case arises from a "feud" between two teenagers that culminated in a brawl in a Brooklyn department store.[2] On December 19, 2013, Plaintiff and her sister visited the Marshalls store in the Gateway Center in Brooklyn. (Pl. Opp'n to Def. Statement of Material Facts ("Pl. R. 56.1 Counterstatement") (Dkt. 36-18) ¶¶ 1-2; Tr. of Pl. Dep., Part 1 of 2 ("Pl. Dep. I") (Dkt. 36-8) 17:16-21:24.) As the two entered the store, Plaintiff heard a "rowdy" woman, whom Plaintiff believed to be a fellow customer, "[o]n the phone yelling foul language." (PI. Dep. 124:17-25.) As Plaintiff began shopping with her sister, she noticed that the woman was following them through the store and watching Plaintiffs sister. (Id. 28:19-30:4.) Plaintiffs sister recognized the woman as a Marshalls employee, Tiariyani Frazier, [3] whom she had known several years earlier, apparently because the two had dated the same person. (Id. 30:11, 32:4; Tr. of PL Dep., Part 2 of 2 ("PI. Dep. II") (Dkt. 36-9) 85:16-24.) Soon thereafter, Plaintiff claims, Frazier donned a hooded sweatshirt and accosted Plaintiff and her sister, "popp[ing] out of the clothes" in the women's section of the store, taking out her earrings, and threatening to fight Plaintiff and her sister. (Pl. Dep. 132:21-38:10.) At some point during this initial confrontation, Frazier "slightly" hit Plaintiffs sister in the head with the sleeve of her sweatshirt or jacket. (Pl. R. 56.1 Counterstatement ¶ 12 (citing Statement of O.E. (Dkt. 36-25)).)

         Plaintiff and her sister moved to the check-out area at the front of the store, where they complained to a cashier about Frazier's behavior and asked to speak with the store manager. (Id. 45:20-47:3.) Eventually, manager Icilda Solomon arrived, sent Frazier to an employee break room in the back of the store, and asked Plaintiff and her sister to provide a written statement describing the incident.[4] (Id. 49:10-50:19.) As Plaintiff and her sister waited by the cash registers, Frazier's aunt and cousin-Malondya Holt and Aliyah Johnson, respectively-entered the store and set upon Plaintiff and her sister, inflicting a beating that left Plaintiff with a concussion, a broken arm, bruising, and a lingering eye problem. (Pl. R. 56.1 Counterstatement ¶¶ 11, 13; Pl. Dep. 154:21-22, 58:5-73:25; Pl. Dep. II 91:5-10, 93:20-24, 94:17-96:8, 107:25-110:2, 119:16-120:16; Arrest Report (Dkt. 36-27).)

         On December 18, 2014, Plaintiff filed suit in this court against Defendant, Frazier, Holt, Johnson, and unidentified Marshalls employees, asserting claims for assault, battery, negligent hiring and retention, negligent supervision and training, and negligent infliction of emotional distress. (Compl. (Dkt. 1).) Plaintiff voluntarily withdrew her claims against all individual defendants in order to satisfy complete diversity of citizenship.[5] See 28 U.S.C. § 1332(a). Defendant thereafter moved to dismiss all claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. to Dismiss (Dkt. 13); Mem. in Supp. of Mot. to Dismiss ("Def. Mem.") (Dkt. 13-5).[6]) On December 29, 2015, the court granted Defendant's motion to dismiss without prejudice on the grounds that Plaintiff failed to allege adequately that (1) Frazier was acting within the scope of her employment when she allegedly solicited her relatives to attack Plaintiff and her sister, as is required for Defendant to be liable under a theory of respondeat superior (Dec. 19, 2015, Mem. & Order ("M&O") (Dkt. 16) at 3-6); (2) Defendant's store managers and security guards were acting within the scope of their employment when they committed any allegedly negligent acts (id. at 7-8); (3) Defendant knew or should have known that a customer might be assaulted in the store (Id. at 8-9); and (4) Defendant knew or should have known of Frazier's propensity to commit or solicit assault (id. at 9-10). The court also concluded that the Complaint failed adequately to allege intentional or negligent infliction of emotional distress. (Id. at 11-13).

         On January 11, 2016, Plaintiff filed her Amended Complaint. (Am. Compl. (Dkt. 17).) The Amended Complaint now only names as defendants Marshalls and three unidentified Marshalls employees, and asserts three claims. First, Plaintiff claims that Defendant acted negligently by failing to protect her (for example, by failing to employ a security guard on the premises), despite knowing that Frazier posed a threat to her and her sister. (Id. ¶¶ 18-24.) Second, Plaintiff contends that Defendant is vicariously liable for the alleged negligence of its employees, who failed to prevent the attack. (Id. ¶¶ 26-36.) Third, Plaintiff asserts that Defendant was negligent in hiring Frazier and allowing her to remain on the store premises after Plaintiff and her sister reported that Frazier had threatened and harassed them. (Id. ¶¶ 39-57.) Following the completion of discovery, Defendant moved for summary judgment on all three of Plaintiffs claims. (Def. Mot. for Summ. J.)


         A party is entitled to summary judgment if she "shows that there is no genuine dispute as to any material fact and [she] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the burden of showing that no genuine dispute of material fact exists. Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court must "constru[e] the evidence in the light most favorable to the nonmoving party, " Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), "resolv[ing] all ambiguities and draw[ing] all reasonable factual inferences in favor of the party against whom summary judgment [is] sought, " Johnson v. Perry, 859 F.3d 156, 169 (2d Cir. 2017). To defeat a motion for summary judgment, the nonmoving party must, however, offer more than a "scintilla of evidence, " Anderson, 477 U.S. at 252, or "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 586 (1986), or rely on "the allegations in [its] pleading[J ... conclusory statements, or... mere assertions that affidavits supporting the motion are not credible, " Gottlieb v. Cry, of Orange. 84 F.3d 511, 518 (2d Cir. 1996).


         The court is not unsympathetic to Plaintiffs position: she was suddenly attacked in Defendant's store, apparently at the behest of Defendant's employee. Plaintiff has not, however, proffered evidence sufficient to demonstrating the existence of a genuine dispute of material fact as to whether she should be able to recover from Defendant for injuries she suffered during the attack. To the extent she argues that Defendant or its employees acted negligently in failing to prevent the assault, her claims fail because she has not produced evidence suggesting that the attack was reasonably foreseeable. Likewise, to the extent that she contends that Defendant was negligent in hiring, supervising, or retaining Frazier, that claim also fails because she has not shown that Defendant was aware that Frazier had any propensity for instigating violent assaults on store patrons (or anyone else, for that matter). The court addresses these arguments in turn.

         A. Negligent Failure to Prevent a Third Party's Attack

         Plaintiff contends that Defendant is liable under two theories for failing to prevent Holt and Johnson from attacking her. First, she argues that Defendant is directly liable for failing to prevent the attack. (Am. Compl. ¶¶ 18-23; PI. Mem. in Opp'n to Mot. for Summ. J. ("Pl. Mem.") (Dkt. 35) at 1-5.) Second, she asserts that Defendant is vicariously liable, under a theory of respondeat superior, for its employees' alleged negligence for failing to prevent the attack. (Am. Compl. ¶¶ 26-36; PI. Mem. at 2-6.) Neither theory is availing, however, because Plaintiff has not shown that the attack was reasonably foreseeable and thus that Defendant or its employees had a duty to protect her from it.

         1. Legal Standard

         "Under New York law, the elements of a negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach." Lombard v. Booz-Allen & Hamilton. Inc.280 F.3d 209, 215 (2d Cir. 2002). With respect to the first element, "landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties." Maheshwari v. City of New York,810 N.E.2d 894, 897 (N.Y. 2004). Public establishments are not, however, "insurers of a visitor's safety." Id. Instead, such establishments only "have a duty to protect their patrons from reasonably foreseeable harm." (M&O at 8 (emphasis added) (citing Hegarty v. Tracy.4 N.Y.S.3d 254, 255 (N.Y.App.Div. 2015)).) Thus, as the court previously explained, "an owner has no duty to protect patrons from unforeseeable assaults." (Id. (citing Hegarty. 4 N.Y.S.3d at 255).) "However, if the situation was one that could have been anticipated or prevented, a defendant may be held ...

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