Kevin Chorazyczewski v. Costco Wholesale Corporation
OPINION filed : We REVERSE the district court s judgment, and REMAND for further proceedings consistent with this opinion, decision not for publication. Damon J. Keith, Eric L. Clay (AUTHORING) and Jane Branstetter Stranch, Circuit Judges.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0674n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Oct 02, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
KEITH, CLAY, and STRANCH, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Kevin Chorazyczewski filed this suit against Defendant
Costco Wholesale Corporation (“Costco”) alleging one count of assault and battery and one
count of negligence arising out of a Costco employee’s apprehension of Plaintiff as he attempted
to leave the Bloomfield Hills, Michigan Costco store with merchandise he intended to steal. The
district court granted summary judgment in Costco’s favor on the basis of Michigan’s wrongful
conduct doctrine. Because the district court’s analysis and application of the wrongful conduct
doctrine was incomplete, we REVERSE and REMAND the case for further proceedings.
On March 4, 2011, Plaintiff entered the Bloomfield Hills, Michigan Costco store
intending to steal a camera. He had stolen cameras from Costco on two prior occasions in order
to support his drug habit. On this particular occasion, Plaintiff attempted to steal a camera, but
he was unable to remove it from its packaging and abandoned that plan. Instead, he picked up a
seven-inch portable television and hid it in his jacket. Video surveillance footage shows that
Plaintiff then walked toward the exit, thanked the greeter on his way out, and proceeded into the
As he exited the store, Plaintiff was set upon by Costco personnel, in
particular, an employee named “Earl.” Plaintiff attempted to flee, but he was quickly subdued by
Earl and other Costco employees. The next thing Plaintiff remembers is waking up in an
ambulance and that the police were present. As a result of this incident, Plaintiff was convicted
of unarmed robbery, in violation of Mich. Comp. Laws § 750.530, and sentenced to prison.
Subsequent to his conviction, Plaintiff filed this diversity action in federal court, alleging
one count of assault and battery, and one count of negligence based on the “vicious” and “brutal”
attack he allegedly sustained at the hands of Costco employees. Plaintiff alleged that he suffered
“severe and permanent injuries including traumatic brain injury, head trauma, head laceration
and permanent scarring, headaches, loss of consciousness, memory problems, loss of
concentration, mood swings, nervousness, pain and suffering, mental anguish, fright and shock,
denial of social pleasure and enjoyments, nervousness, sleeplessness, medical expenses, loss of
wages and loss of future earnings capacity.” The district court granted Costco’s motion for
summary judgment, finding that Plaintiff’s action was barred by Michigan’s wrongful conduct
rule. Plaintiff timely appealed.
We review a district court’s grant of summary judgment de novo. Diamond v. Michigan,
431 F.3d 262, 265 (6th Cir. 2005) (citations omitted). The moving party is entitled to summary
judgment if “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). Sitting in diversity, we apply Michigan
substantive law and federal procedural law. Hayes v. Equitable Energy Res. Co., 266 F.3d 560,
566 (6th Cir. 2001).
Michigan has long recognized the wrongful conduct doctrine. See Orzel by Orzel v. Scott
Drug Co., 537 N.W.2d 208, 213–14 (Mich. 1995). The rule states that a plaintiff cannot bring a
cause of action that is premised on his own illegal conduct unless the defendant also engaged in
unlawful conduct and the defendant’s conduct is significantly more culpable than the plaintiff’s.
Id. The rule also requires that “[t]he plaintiff’s injury must have been suffered while and as a
proximate result of committing an illegal act.” Id. at 215.
Here, the district court did not engage in a complete analysis of whether the wrongful
conduct doctrine applies.
The court simply found that Plaintiff’s criminal act—unarmed
robbery—was a serious crime and that the crime was a proximate cause of his injuries. The
court did not consider whether Costco’s actions were more culpable than Plaintiff’s conduct.
Because Plaintiff argued that Costco used unreasonable force (and therefore its conduct was
more culpable than his own), and because this is a way that a complainant can avoid the
wrongful conduct bar, the district court’s failure to make a finding on this issue was erroneous.
Plaintiff also argues that the judicially-created wrongful conduct doctrine has been
abrogated by the Michigan legislature. He points to a statute which explicitly provides that a
merchant can be held liable in a civil action for assault and battery if the plaintiff establishes that
the force used by the merchant was unreasonable. See Mich. Comp. Laws § 600.2917(1). The
Michigan Court of Appeals is the only judicial body to have addressed this issue and, in a
divided opinion, the court held that § 600.2917(1) only applies if the plaintiff’s cause of action is
not barred by the wrongful conduct rule. See, e.g., Stolicker v. Kohl’s Dep’t Stores, Inc.,
2012 WL 676391, at *2 (Mich. Ct. App. March 1, 2012). Because it is an open question whether
the wrongful conduct rule remains in force, we find it prudent to address whether Plaintiff can
maintain his cause of action under Michigan statutory law. See Andrews v. Columbia Gas
Transmission Corp., 544 F.3d 618, 624 (6th Cir. 2008) (explaining that decisions of a state’s
highest court are binding, while those of an intermediary appellate court are merely persuasive).
To prevail against Costco on his assault and battery claim, Plaintiff must establish that
the force employed was unreasonable. See Mich. Comp. Laws §§ 600.2955b(1), (2)(b). In a suit
of this nature, it is the province of the court—not a jury—to determine whether the force used
was reasonable under the circumstances. Id. at § 600.2955b(2)(b). The law provides that the
court “shall dismiss” the plaintiff’s action with prejudice if “the court finds that the particular
defendant . . . [u]sed a degree of force that a reasonable person would believe to have been
appropriate to prevent or respond to the commission of a felony.”1 Id. at §§ 600.2955b(1),
(2)(b). In making this inquiry, the court “shall not consider the fact that the defendant may not
have known that the plaintiff’s actions or attempted actions would be the commission of a
felony.” Id. at 600.2955b(2)(b).
We leave it to the district court to make the reasonableness determination in the first
instance. We note that it is within the district court’s discretion to reopen discovery to allow the
parties to submit additional evidence concerning the circumstances of the alleged assault and the
injuries Plaintiff allegedly suffered as a result. Although there is video surveillance footage, part
of the encounter takes place off-camera. Additional deposition testimony, Plaintiff’s medical
Costco’s counsel contended at oral argument before this Court that any amount of force
utilized against Plaintiff should be deemed reasonable; needless to say, that argument is not
records, and any written reports made by Costco or the police may shed light on the amount of
force used to apprehend Plaintiff, and thus might assist the district court in making the
For the foregoing reasons, we REVERSE the district court’s judgment, and REMAND
for further proceedings consistent with this opinion.
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