United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 44)
V. PARKER U.S. DISTRICT JUDGE.
Brandi Decormier (“Plaintiff”) initiated this
lawsuit against Defendant J.C. Penney Corporation, Inc.
(“JCP”) on September 14, 2016. Plaintiff alleges
JCP is vicariously liable for the acts of its employee
occurring during an encounter in JCP's parking lot.
Presently before the Court is Defendant's motion for
summary judgment, filed November 17, 2017. (ECF No. 44.) The
motion has been fully briefed. For the reasons stated below,
the Court denies Defendant's motion.
Factual and Procedural History
15, 2016, Plaintiff entered JCP to purchase clothing for her
son. (ECF No. 44-5 at Pg ID 336, Brandi Decormier Dep. Tr.
58:3-15, 59:10-16 (July 12, 2017).). Natasha Young, a JCP
loss prevention associate, testified that she originally
observed Plaintiff on camera, but because Plaintiff was
quickly selecting merchandise and taking more merchandise
than necessary, she decided to observe Plaintiff on the
floor. (ECF No. 44-3 at Pg ID 260, Natasha Young Dep. Tr.
43:3-24 (July 26, 2017).) Plaintiff grabbed three outfits
from the Nike men's department and entered a fitting
room. (ECF No. 44-5 at Pg ID 336, Decormier Dep. Tr. 61:3-4.)
While in the fitting room, Plaintiff placed the three outfits
in her purse and exited the fitting room. (ECF No. 44-5 at Pg
ID 336, Decormier Dep. Tr. 61:3-4.) According to Ms. Young,
she checked the fitting rooms prior to Plaintiff entering the
area to ensure they were empty. (ECF No. 44-3 at Pg ID 260,
Young Dep. Tr. 44:19-24.) Ms. Young testified Plaintiff
exited the fitting room without any merchandise. (ECF No.
44-3 at Pg ID 260, Young Dep. Tr. 45:13-17.)
Plaintiff walked towards the front of the store, Ms. Young
stated that she found six empty hangers in the fitting room
Plaintiff previously occupied. (ECF No. 44-3 at Pg ID 260,
Young Dep. Tr. 45:21-24.) Ms. Young then radioed Kevin
Gorski, a loss prevention officer, who was located near the
entrance/exit of the store, to alert him that Plaintiff was
headed in his direction with stolen merchandise. (ECF No.
44-3 at Pg ID 261, Young Dep. Tr. 46:2-3.)
Plaintiff exited the store, she glanced behind her and
overheard a JCP employee describing her clothing, grey
sweatpants and a black tank top, over a radio. (ECF No. 44-5
at Pg ID 336, Decormier Dep. Tr. 61:3-6; ECF No. 44-5 at Pg
ID 338, Decormier Dep. Tr. 67:13-21.) Mr. Gorski testified
that he identified himself to Plaintiff, but she immediately
began to run towards the parking lot. (ECF No. 44-4 at Pg ID
300, Kevin Gorski Dep. Tr. 34:15-17 (July 26, 2017); ECF No.
44-5 at Pg ID 336, Decormer Dep. Tr. 61:3-6.)
to Mr. Gorski, once he caught up with Plaintiff, he placed
her in a bear hug to prevent her from using her arms to
escape. (ECF No.44-4 at Pg ID 300, Gorski Dep. Tr. 36:14-25.)
Mr. Gorski testified that although no punches were thrown,
Plaintiff was kicking, squirming, and trying to scratch, and
they eventually fell onto the concrete. (ECF No. 44-4 at Pg
ID 301, Gorski Dep. Tr. 40:6-10.) Contrarily, Plaintiff
testified that upon opening her car door, Mr. Gorski grabbed
her by the arm and immediately slammed her onto the concrete,
causing cuts and scrapes to her face and shoulder, as well as
severe shoulder pain. (ECF No. 44-5 at Pg ID 345, Decormier
Dep. Tr. 95:3-23.) Mr. Gorski admits that he fell on
Plaintiff and his weight and chest were on her shoulder. (ECF
No. 44-4 at Pg ID 301, Gorski Dep. Tr. 37:4-7.) Ms. Young
testified that after Plaintiff was apprehended, she noticed a
large bruised bump on Plaintiff's head. (ECF No. 44-3 at
Pg ID 262, Young Dep. Tr. 52:20-22; 53:16-17.) As a result of
Plaintiff's injuries, on September 14, 2016, Plaintiff
initiated this lawsuit against JCP, alleging a single count
of vicarious liability for the assault and battery she
experienced at the hands of Gorski.
Standard of Review
judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “if 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 central inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). After adequate
time for discovery and upon motion, Rule 56 mandates summary
judgment against a party who fails to establish the existence
of an element essential to that party's case and on which
that party bears the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
movant has the initial burden of showing “the absence
of a genuine issue of material fact.” Id. at
323. Once the movant meets this burden, the “nonmoving
party must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks and citation omitted).
To demonstrate a genuine issue, the nonmoving party must
present sufficient evidence upon which a jury could
reasonably find for that party; a “scintilla of
evidence” is insufficient. See Liberty Lobby,
477 U.S. at 252.
party asserting that a fact cannot be or is genuinely
disputed” must designate specifically the materials in
the record supporting the assertion, “including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1). The court must accept as true the
non-movant's evidence and draw “all justifiable
inferences” in the non-movant's favor. See
Liberty Lobby, 477 U.S. at 255.
Applicable Law & Analysis
contends that Plaintiff's claim fails because she cannot
sustain her burden of proof. First, Defendant argues that
Plaintiff cannot show an intentional or unlawful threat to do
her bodily harm and that she experienced a well-founded fear
of imminent peril. Second, Defendant argues that Plaintiff
cannot succeed on her claim for battery because she consented
to being apprehended, voluntarily engaged in a mutual affray,
and Mr. Gorski acted in self-defense.
Court notes that Plaintiff alleges a single count for assault
and battery, stating: “Defendant's employee pursued
and caught up to Plaintiff at her car and willfully,
intentionally and voluntarily slammed her down to the
concrete.” (ECF No. 4 at 3.) Plaintiff states that
ultimately Defendant's employee used unnecessary force in
response to her shoplifting. Describing “assault and
battery, ” the Michigan Court of Appeals has stated
that “[t]he two terms are so closely associated in
common usage that they are generally used together, or
regarded as more or less synonymous.” Mitchell v.
Daly, 133 Mich.App. 414, 350 N.W.2d 772, 778-79 (Mich.
Ct. App. 1984). In this instance, it would appear because
Plaintiff alleges a single count, Plaintiff's claim
sounds in battery because “battery is the consummation
of assault.” Tinkler ...