United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
Caroline Cort brings this diversity action against Marshalls
Department Store ("Marshalls" or
"Defendant") 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.
case arises from a "feud" between two teenagers
that culminated in a brawl in a Brooklyn department
store. 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,  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)).)
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. (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).)
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. 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).) 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).
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.)
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).
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
Negligent Failure to Prevent a Third Party's
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.
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 ...