United States District Court, E.D. Michigan, Southern Division
Melissa Taylor and Douglas St. Pierre, Plaintiffs,
DLI Properties, L.L.C., d/b/a Ford Field, S.A.F.E. Management, LLC, Donna Farmer, Sabrina Wiggins, Defendants.
R. Grand, Mag. Judge
AMENDED OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY
JUDGMENT  AND DENYING PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT 
E. LEVY United States District Judge
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
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.
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.
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.)
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).
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)).
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.
Negligence (Count I)
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.
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.
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
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.
Negligent Hiring, Training, and Supervision (Counts V and
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
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).
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
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
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.
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.
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
Negligent Infliction of Emotional Distress (Count
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.
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.
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 ...