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Decormier v. J.C. Penney Corp., Inc.

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

May 21, 2018

BRANDI DECORMIER, Plaintiff,
v.
J.C. PENNEY CORPORATION, INC., Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 44)

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Plaintiff 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.

         I. Factual and Procedural History

         On June 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.)

         As 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.)

         As 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.)

         According 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.

         II. Standard of Review

         Summary 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).

         The 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.

         “A 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.

         II. Applicable Law & Analysis

         Defendant 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.

         The 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 ...


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