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Taylor v. DLI Properties, L.L.C.

United States District Court, E.D. Michigan, Southern Division

July 14, 2017

Melissa Taylor and Douglas St. Pierre, Plaintiffs,
v.
DLI Properties, L.L.C., d/b/a Ford Field, S.A.F.E. Management, LLC, Donna Farmer, Sabrina Wiggins, Defendants.

          Mag. Judge David R. Grand

          PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT [21] AND DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT [23]

          JUDITH E. LEVY United States District Judge

         This is a personal injury case arising out of an interaction on October 27, 2013, at Ford Field in Detroit, Michigan, during a football game. Defendants move for partial summary judgment on plaintiffs' negligence and negligence-related claims, negligent infliction of emotional distress (“NIED”) claim, premises liability, and disability discrimination claims. (Dkt. 21.) Plaintiffs move for partial summary judgment on their disability discrimination claims and their assault and battery claim. (Dkt. 23.) For the reasons set forth below, defendants' motion is granted in part and plaintiffs' motion is denied.

         I. Background

         Plaintiffs Melissa Taylor and Douglas St. Pierre, who were engaged but not married at the time, attended a football game at Ford Field in Detroit, Michigan on October 27, 2013. A few weeks before attending the game, St. Pierre had open heart surgery. Defendant DLI Properties is the company that manages Ford Field; it contracted with defendant S.A.F.E. Management, LLC to provide personnel for Ford Field, including guest services and security. Defendants Donna Farmer and Sabrina Wiggins are employees of S.A.F.E. Management who were working at Ford Field on October 27, 2013. Farmer and Wiggins were Courtesy Team members whose job was to assist patrons and monitor the area or areas to which they were assigned.

         Near halftime of the football game, St. Pierre needed to use the bathroom. Plaintiffs allege that they found a family restroom, and attempted to use it together, so that Taylor could assist St. Pierre, whom she claims needed her help as a result of the surgery. They state that when they attempted to enter the restroom together, Farmer was stationed nearby and told them they could not enter because the restroom was for “families.” (Dkt. 1 at 6.) Plaintiffs state they informed Farmer of St. Pierre's medical condition, after which Farmer and Wiggins used physical force on Taylor to prevent her from entering the restroom.

         Defendants argue that Farmer was not made aware of St. Pierre's medical condition, and did not initiate the altercation with Taylor. (Dkt. 21 at 14.) Farmer perceived Taylor to be intoxicated and aggressive, and states that she did not know St. Pierre required assistance. (Id.) Farmer alleges that Taylor grabbed her shirt collar, and she attempted to free herself. (Id. at 15.) Wiggins denies that she physically assaulted Taylor, and alleges that Taylor attacked her with a beer bottle and called her a “black bitch.” (Id. at 16.) Wiggins also alleges that Taylor ran away from her after attacking her, and entered the stands of Ford Field, prompting Wiggins to attempt to remove her. (Id.) The police eventually escorted Taylor off of the premises. (Id.)

         On October 26, 2015, plaintiffs filed suit, asserting nine counts: 1) negligence; 2) assault and battery against Farmer and Wiggins; 3) intentional infliction of emotional distress; 4) NIED; 5) negligent hiring; 6) negligent training and supervision; 7) premises liability; 8) violation of Michigan's Persons With Disabilities Civil Rights Act (“PWDCRA”); and 9) violation of Title III of the Americans with Disabilities Act (“ADA”). (Dkt. 1.) On March 28, 2017, defendants filed a motion for partial summary judgment, seeking dismissal of the negligence, negligent hiring, negligent training and supervision, NIED, premises liability, PWDCRA (as to Wiggins), and ADA claims. (Dkt. 21.) That same day, plaintiffs filed a motion for partial summary judgment, seeking judgment in their favor on their assault and battery, PWDCRA, and ADA claims. (Dkt. 23.) The motions are fully briefed, and oral argument is not required. E.D. Mich. Local R. 7.1(f)(2).

         II. Legal Standard

         Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court may not grant summary judgment 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 Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).

         III. Analysis

         A. Negligence Claims

         Defendants seek summary judgment as to each of plaintiffs' negligence-related claims. First, they argue, the negligence claims against Farmer and Wiggins are restatements of plaintiffs' assault and battery, PWDCRA, and ADA claims. Second, they argue the negligence claims against DLI Properties and S.A.F.E. Management are restatements of the more specific negligent hiring and negligent training and supervision claims. Third, they argue the negligent hiring and negligent training and supervision claims are not actionable because if Wiggins and Farmer did commit the acts of which they were accused, they were neither acting within the scope of their employment, nor did DLI Properties and S.A.F.E. Management know or should have known of any propensity either individual had to assault patrons.

         1. Negligence (Count I)

         On its face, plaintiffs' negligence claim asserts that Wiggins and Farmer acted negligently by committing assault and battery on Taylor, and by denying St. Pierre access to the bathroom. (Dkt. 1 at 5-7.) In Michigan, “[t]here exists no tort of negligent assault and battery.” Allstate Ins. Co. v. Clarke, Nos. 248934, 249398, 2007 WL 2710821, at *3 (Mich. Ct. App. Sept. 18, 2007) (citing Sudul v. City of Hamtramck, 221 Mich.App. 455, 460-61 (1997)). Likewise, the Court can find no support for the proposition that “negligent” violation of the PWDCRA and ADA constitutes a claim separate from the underlying violations themselves.

         Plaintiffs respond that they are permitted to assert different theories of liability, and that the negligence claims refer only to “a verbal argument with Plaintiffs in public in which they denied them the right to use the restroom.” (Dkt. 29 at 15.) Regardless of whether plaintiffs may assert different theories of liability, they may not convert a claim for intentional violation of a statutory duty, such as violation of the PWDCRA or ADA, into a claim for negligence, particularly where they can identify no duty other than the duty already embodied in the statute. Accordingly, summary judgment is warranted as to the negligence claims asserted against Farmer and Wiggins.

         Next, defendants argue that the general negligence claims against DLI Properties and S.A.F.E. Management are duplicative of the more specific negligent hiring and negligent training and supervision claims. In response to this argument, plaintiffs extensively argue the grounds for their more specific negligent hiring, training, and supervision claims. (Id. at 15-21.) Because the general negligence claim is duplicative of the more specific claims, the general negligence claim is dismissed.

         2. Negligent Hiring, Training, and Supervision (Counts V and VI)

         The record evidence demonstrates that Wiggins and Farmer were employees of S.A.F.E. Management alone, and not DLI Properties. Wiggins stated that she was employed by S.A.F.E. Management. (Dkt. 21-5 at 4.) Farmer also stated that the “entity [she] actually work[ed] for” was “S.A.F.E. Management.” (Dkt. 21-4 at 5.) In response, plaintiffs cite a portion of the deposition transcript of Kathy Ruehle, whom plaintiffs claim was Wiggins and Farmer's manager. (Dkt. 29 at 19.) Unfortunately, plaintiffs neglected to provide the relevant portion of the deposition, and cite to pages that do not contain the relevant testimony.

         Regardless, plaintiffs point to Ruehle answering a question about “the scope of [Wiggins and Farmer's] employment with S.A.F.E.” (Id.) Plaintiffs have provided no evidence that DLI Properties employed Wiggins and Farmer. Accordingly, summary judgment is warranted as to DLI Properties on plaintiffs' negligent hiring, training, and supervision claims, as DLI Properties did not hire, train, or supervise Wiggins and Farmer. See also Campbell v. Kovich, 273 Mich.App. 227, 233-34 (2006) (holding that a premises owner is generally not liable for injuries that a contractor negligently causes).

         “Michigan courts have recognized a cause of action for negligent hiring where an employee commits a foreseeable act of physical violence.” Vennittilli v. Primerica, Inc., 943 F.Supp. 793, 797 (E.D. Mich. 1996) (citing Bradley v. Stevens, 329 Mich. 556 (1951)). “An employer is generally liable for the torts its employees commit within the scope of their employment. It follows that an employer is not liable for the torts committed by an employee when those torts are beyond the scope of the employer's business.” Hamed v. Wayne Cty., 490 Mich. 1, 10-11 (2011) (internal quote marks and citations omitted). “Although an act may be contrary to an employer's instructions, liability will nonetheless attach if the employee accomplished the act in furtherance, or the interest, of the employer's business.” Id. at 11. The negligent training, hiring, and supervision will be analyzed through the lens of this respondeat superior liability.

         Defendants argue that both Wiggins and Farmer were trained not to use physical force against patrons, and that any use of physical force was not within the scope of their employment or for the benefit of their employer. Plaintiffs respond that DLI Properties, not S.A.F.E. Management, is liable for Wiggins and Farmer's alleged actions. Although this would seem to effectively concede defendants' point regarding S.A.F.E. Management's liability, the Court will assume that this is unclear drafting, rather than a concession as to liability.

         Defendants argue that the alleged assault and battery was neither within the scope of Wiggins and Farmer's employment, nor for the benefit of their employer. They cite Burch v. A & G Assocs., Inc., 122 Mich.App. 798 (1983) and Martin v. Jones, 302 Mich. 355 (1942) as cases supporting the proposition that assault and battery by Wiggins and Farmer could not have been within the scope of S.A.F.E. Management's business, or for its benefit. However, Burch concerned a taxicab driver who robbed and assaulted a passenger after the passenger had paid and left the vehicle, at which point the taxicab driver was no longer performing his job of transporting a passenger. 122 Mich.App. at 804-06. Martin concerned an employee at an oil station who shot a customer following an argument unrelated to and separate from his job duties. 203 Mich. at 356. In both cases, no credible argument could be made that the employee was acting in the employer's interest.

         “The purpose of the service rendered by the employee, and not the method of performance, is the test of whether or not the servant is within the scope of [her] employment.” Renda v. Int'l Union, United Auto., Aircraft and Agr. Implement Workers of Am., 366 Mich. 58, 95 (1962) (citing Loux v. Harris, 226 Mich. 315, 321 (1924)). Defendants' argument is that because Wiggins and Farmer were not permitted to take the actions alleged, they could not have been acting within the scope of their employment or for the benefit of their employer. However, in the light most favorable to plaintiffs, Wiggins and Farmer were acting squarely within the scope of their employment as Courtesy Team members whose job was to assist patrons at Ford Field and address disturbances as they arose.

         Defendants' reading of “scope of employment” is too narrow, allowing an employer to escape liability so long as an employee was not instructed to do their job in a way that would give rise to liability in tort. That is not the rule. A genuine issue of material fact exists as to whether Farmer and Wiggins were acting within the scope of their authority, and whether they committed tortious acts. Accordingly, summary judgment as to the negligent hiring, training, and supervision claims against S.A.F.E. Management must be denied.

         B. Negligent Infliction of Emotional Distress (Count IV)

[T]he elements of negligent infliction of emotional distress are: (1) serious injury threatened or inflicted on a person, not the plaintiff, of a nature to cause severe mental disturbance to the plaintiff, (2) shock by the plaintiff from witnessing the event that results in the plaintiff's actual physical harm, (3) close relationship between the plaintiff and the injured person (parent, child, husband, or wife), and (4) presence of the plaintiff at the location of the accident at the time the accident occurred or, if not presence, at least shock ‘fairly contemporaneous' with the accident.

Hesse v. Ashland Oil, 466 Mich. 21, 34 (2002) (citing Wargelin v. Sisters of Mercy Health Corp., 149 Mich.App. 75, 81 (1986)). At the time of the incident, plaintiffs were not married. Defendants argue that this claim must be dismissed because plaintiffs did not have the relationship required to assert an NIED claim. Plaintiffs fail to address this argument, and instead argue that defendants committed intentional infliction of emotional distress, which is a separate claim for which defendants do not seek summary judgment.

         Because plaintiffs were unmarried at the time of the incident at issue in this case, the specific requirements of an NIED claim under Michigan law have not been met. See Nugent v. Bauermeister, 195 Mich.App. 158, 160-61 (1992) (holding that the familial limitations set forth above “have consistently been applied by this Court, ” declining to expand the class of persons who may recover under an IIED claim, and collecting cases). This claim must be dismissed.

         C. Premises ...


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