Wade v. Kay Jewelers Inc. et al
Filing
115
ORDER. For the reasons set forth in the attached, GGP's 97 motion for summary judgment is GRANTED, and PSC's 95 motion for summary judgment is DENIED as moot. GGP shall file on the docket within 21 days a short notice on what rel ief in its 57 third-party complaint it wishes to pursue in light of this ruling. If GGP indicates that it does not wish to continue pursuing any relief on its third-party complaint or does not respond by the deadline, the Court will dismiss the third-party complaint.Signed by Judge Michael P. Shea on 3/27/2019. (Barclay, Michael)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FABIAN WADE,
Plaintiff,
No. 3:17-cv-990 (MPS)
v.
KAY JEWELERS, INC., STERLING JEWELERS,
INC., GGP, INC., AND JANE & JOHN DOES, 1–5
Defendants.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
This suit arises out of a March 18, 2017 incident at the Buckland Hills Mall in Manchester,
Connecticut, in which employees at a Kay Jewelers store misidentified Plaintiff Fabian Wade and
summoned mall security, which called the police. Wade was then briefly questioned by the police
before he was allowed to proceed on his way. Wade sued the owner of the Kay Jewelers store,
Defendant Sterling Jewelers, Inc. (“Sterling”), the owner of the Buckland Hills Mall, GGP, Inc.
(“GGP”), and numerous Jane and John Does alleged to be security guards at the mall or employees
of the Kay Jewelers store. (ECF No. 36.) GGP in turn brought a third-party complaint against the
employer of the mall security personnel, Professional Security Consultants, Inc. (“PSC”). I
previously granted in part and denied in part the defendants’ motions to dismiss. (ECF No. 105.)
As a result, Wade has three remaining claims against GGP, all under state law: (1) false
imprisonment; (2) negligent infliction of emotional distress; and (3) negligent supervision. (Id. at
29.) GGP in turn has two remaining claims against PSC for common law and contractual
indemnification. (Id.)
Both GGP and PSC now move for summary judgment. (ECF Nos. 95, 97.) GGP argues
that because PSC contracted with GGP to provide security services at the Buckland Hills Mall,
PSC is an independent contractor and thus GGP may not be held liable for any of Wade’s claims,
which are based on acts by PSC’s employees. (See ECF No. 97 at 1–2; ECF No. 97-1 at 12–18.)
GGP further argues that even if it can be held liable for the torts of PSC’s employees, it is
nonetheless entitled to summary judgment on Wade’s false imprisonment, negligent infliction of
emotional distress, and negligent supervision claims against it. (ECF No. 97 at 2–3.) For the
reasons that follow, I GRANT GGP’s motion for summary judgment (ECF No. 97), and thus
DENY PSC’s motion for summary judgment as moot (ECF No. 95).1
I.
Factual Background
The facts set forth below are taken from the parties’ Local Rule 56(a) statements and
supporting exhibits and are undisputed unless otherwise noted.
A.
Relationship between GGP and PSC
GGP, the owner of the Buckland Hills Mall, contracted with PSC “to provide security
services for the Buckland Hills Mall through a Security Agreement which specifically warranted
that [PSC] was an independent contractor and that [PSC] employees were not employees of
Shoppes at Buckland Hills or GGP.” (ECF No. 97-11, GGP’s Local Rule 56(a)1 Statement
(“Def.’s L.R. 56(a)1 Stmt.”) at ¶ 12; ECF No. 102-1, Plaintiff’s Local Rule 56(a)2 Statement
(“Pl.’s L.R. 56(a)2 Stmt.”) at ¶ 12 (admitting same); see ECF No. 97-10, Exhibit A to Exhibit I,
Security Agreement attached to Affidavit of Alfred K. Sherwood, at ¶¶ 3(E)(3), 9(G) (hereinafter
“Sec. Agreement”).) That agreement, dated May 29, 2015, is between the Shoppes at Buckland
Hills, LLC and PSC, though a GGP-related entity agreed to represent the Shoppes at Buckland
Hills, LLC in “all matters covered by th[e] agreement.” (ECF No. 97-10 at 4; Sec. Agreement. ¶
3(C).) For the purposes of this motion, I construe references to both the Shoppes at Buckland
1
I address Sterling’s motion for summary judgment (ECF No. 87) in a separate decision.
2
Hills, LLC and the GGP-related entity in the agreement as “GGP,” as neither party contends the
distinction matters.
GGP agreed to “engage[] [PSC] to provide security services in accordance with the terms
of this Agreement.” (Sec. Agreement. ¶ 3(A).) The Security Agreement provided details about
PSC’s management obligations in paragraph 3(D). Specifically, paragraph 3(D)(1) provides that
PSC would establish a dedicated management team:
Dedicated GGP Management Team. [PSC] shall establish a corporate management group
dedicated to the [Buckland Hills Mall] and other properties owned by [GGP’s] affiliates
(“Dedicated Team”). The Dedicated Team shall be responsible for fulfillment of [GGP’s]
performance standards. The Dedicated Team shall be comprised of a VP/General Manager
and/or Regional/Group Managers.
(Sec. Agreement ¶ 3(D)(1).) Paragraph 3(D)(2) provides for PSC managers’ general oversight
responsibilities and their permitted management hours:
Program Oversight, Property Visits, Contacts. [PSC’s] Regional/Group Managers are to be
security practitioners responsible for the overall success of the on-site security program
and the execution of all applicable requirements set forth in this Agreement. The Dedicated
Team will make regular visits to the Property and regularly communicate with [GGP]
property Manager (“Property Manager”) and the GGP Corporate Security Director to
solicit feedback. Unless otherwise approved in advance in writing by the GGP VP of
Security, [PSC] will provide dedicated management groups solely servicing GGP malls,
and each assigned regional manager shall manage no more than 8,000 hours of security
[c]overage per week. Any regional manager exceeding 8,000 hours of security coverage
per week will require a written exception from the GGP VP of Security.
(Sec. Agreement ¶ 3(D)(1).) Paragraph 3(D)(5) provides in relevant part for PSC’s obligations to
train its employees on GGP’s CCTV system:
CCTV System Knowledge. [PSC] will provide and maintain at its corporate office at least
one dedicated CCTV master trainer for [GGP’s] American Dynamics’ CCTV systems. The
master trainer will be responsible for overseeing the training program for Contractor's staff
assigned to operate [GGP’s] CCTV systems. . . .
(Sec. Agreement ¶ 3(D)(5).)
3
Paragraph 3(E) set requirements for PSC’s “On-Site Personnel.” (Id. ¶ 3(E).) In particular,
paragraph 3(E)(1) provides in relevant part:
Security Staff. [PSC] shall provide a stable staff that is trained and capable of providing
the Services. Subject to the specific staffing requirements outlined in Exhibit A, [PSC]
will provide an on-site security manager (“Security Manager”), assistant security
manager, supervisors, CCTV operators/dispatchers, security officers, and police officers,
as applicable. [. . .]
(Sec. Agreement. ¶ 3(E)(1).) Exhibit A is attached to the Security Agreement and is entitled
“Property Staffing Agreement and Billing Rates.” (ECF No. 97-10 at 27–28.) It contains an
“[a]nnual [e]stimate” for security at the Buckland Hills Mall and includes tables of various security
positions with “[w]age [r]ate[s],” “[b]ill rate[s],” “[w]eekly [h]ours,” and “[a]nnual [c]ost.” (ECF
No. 97-10 at 27–28.)
In addition, Paragraph 3(E)(3) states explicitly that PSC’s employees are not GGP’s
employees. (Sec. Agreement. ¶ 3(E)(3) (“[PSC’s] employees are NOT employees of [GGP].
[PSC’s] security staff shall be employees of [PSC] or, to the extent required by state or local laws
or regulations, employees of any entity controlled by or under common control with [PSC].”).)
This provision also provides that in the usual course, “the [GGP] Property Manager, or his
designees, will make reasonable attempts to communicate security related requests or assignments
to the on-site [PSC] Security Manager or a designated security supervisor.” (Id.) Nonetheless,
“on occasion [such communications] may not be timely or practicable and requests may be
communicated directly to a non-supervisor employee.” (Id.) The parties agreed that these
“occasions will not constitute a co-employment situation.” (Id.)
This paragraph also divides the parties’ responsibilities in hiring, suspending, and
reassigning security officers. In particular, while Paragraph 3(E)(9) provides in relevant part that
PSC is responsible for hiring security officers for the Buckland Hills Mall, Paragraph 3(E)(10)
4
directs that PSC “shall suspend” any security staff member from duties at the Buckland Hills Mall
if they are under investigation or determined to have committed a “crime or violation of public
trust.” (Sec. Agreement. ¶ 3(E)(9), (10).) Moreover, in Paragraph 3(E)(11), PSC agreed that
“upon request by [GGP], it will reassign any of its employees who, in the opinion of [GGP], are
not satisfactory provided that the reassignment is performance based.” (Sec. Agreement. ¶
3(E)(11).)
Paragraph 3(F) sets requirements for PSC’s “On-Site Security Management.” (Sec.
Agreement ¶ 3(F).) The second subparagraph of that section provides the responsibilities of the
PSC ‘security manager’:
2. Security Manager. The Security Manager is to be a security practitioner responsible for
the daily operation of the security program and the execution of contract requirements. The
on-site Security Manager must understand local laws/violations commonly encountered in
shopping center environments and must be able to analyze crime reports and identify
trending. The Security Manager must be capable of delivering training, developing training
assistants, and maintaining the training program in accordance with the requirements set
forth in Exhibit B. [. . .]
(Sec. Agreement. ¶ 3(F)(2).)
Paragraph 3(G), captioned “Deployment/Scheduling,” provides PSC’s and GGP’s
obligations in setting staffing levels. The first two subparagraphs of the section provide in relevant
part as follows:
1. Staffing Levels/Deployment/Staffing Template. [GGP] and [PSC] shall agree upon the
weekly deployment of staffing template needed to provide the [security services] to the
[Buckland Hills Mall].
The agreed upon weekly staffing deployment template for each day of the week and each
hour of the day shall be documented in [GGP’s] required format in Exhibit A. The staffing
level shall be conclusively deemed for all purposes to be a material representation by [PSC]
to [GGP] that the staffing deployment is one which shall provide the [security services] to
the [Buckland Hills Mall] in accordance with the terms hereof. [PSC] may make temporary
changes to the weekly staff deployment to address incident trending or special events, but
may not exceed the allocated weekly security hours without prior written approval from
the [GGP] Property Manager. [PSC] may not make permanent or extended changes to the
5
weekly staffing deployment template without consent of the [GGP] Property Manager and
the GGP Corporate Security Director. It is understood that the agreed upon weekly staff
deployment is a flexible template and at times that [PSC] may operate with different
staffing levels due to training, administrative duties, and scheduling conflicts.
[. . .]
2. Staffing. [PSC] shall provide the [GGP] Property Manager with a staffing proposal that
reflects the agreed upon weekly staffing deployment. The staffing proposal shall set forth
the approved positions and corresponding hours, wage rates, bill rates and line total, weekly
and annual totals. The staffing proposal will also set forth estimated charges for staff
working on holidays (as approved in this Agreement), special hours to be utilized during
holiday season, taxes, and any other charge agreed to by the [GGP] Property Manager or
the GGP Corporate Security Director. Any change proposed [by PSC] shall only be
effective if approved in writing by the GGP Corporate Security Director or the [GGP]
Property Manager.
(Sec. Agreement. ¶ 3(G)(1), (2).)
Next, Paragraph 3(I), captioned “Customer Experience,” provides that GGP “has adopted
a customer experience objective to further its stated corporate mission a form of which is attached
to this Agreement as Exhibit C,” and that PSC is required to take reasonable steps to ensure that
its employees follow these objectives. (See Sec. Agreement ¶ 3(I).) Exhibit C to the agreement,
captioned “Customer Service Guidelines,” provides in its introduction that:
The GGP Brand is about connecting with each of our Guests; offering them world-class
retail and restaurants; but also unexpected services, amenities, and conveniences; and truly
exhilarating events and activities.
[. . .]
All of our Guests deserve our total commitment and respect. Each deserves a helping hand
whenever we can extend one. Each deserves our kindness, our support and our empathy.
When we talk about surprising and delighting our Guests, we mean all of them. YOU are
the face of the mall experience. YOU are its expression and its fulfillment.
(ECF No. 97-10 at 33.)
Paragraph 3(J), “Training,” provides in relevant part that PSC would either develop
training courses according to a GGP-prescribed set of core classes or administer proficiency tests
on these subjects:
6
1. Officer Training. [PSC] shall promote and provide a trained and capable security staff.
[PSC] shall develop and deliver training courses as set forth on the attached Exhibit B to
all security officers. [. . .] [GGP] may expand the training requirements as business needs
dictate during the Term, in its sole discretion.
2. Certification Training. Training that requires certification may be acquired through a
professionally recognized third party training system or an equivalent program developed
by [PSC]. [PSC] is responsible for maintaining all required certifications.
3. Proficiency Testing. In lieu of training, [PSC] may administer a detailed “proficiency”
test to meet requirements of Exhibit B. GGP Corporate Director reserves the right to
review such tests in advance.
[. . . .]
(Sec. Agreement. ¶ 3(J)(1)–(3).) Exhibit B contains a list of “required” training courses that “mall
security officers working at the [Buckland Hills Mall are required to] successfully complete.”
(ECF No. 97-10 at 29.) These required courses vary in subject matter, from “Pepper Stream
Certification” to “Workplace Violence Prevention.” (Id. at 29–32.)
Paragraph 4(A) of the Security Agreement provides that PSC must provide a “complete set
of uniforms and accessories” to its employees. (Sec. Agreement. ¶ 4(A).) It further specifies the
requirements for certain uniforms:
D. Regular Security Uniform. Unless otherwise directed by Owner in writing by GGP VP
of Security, the regular security uniform will be the standard patrol uniform for interior and
exterior security patrol as depicted on Exhibit D attached to this Agreement.
(Sec. Agreement. ¶ 4(D).) Exhibit D, captioned “uniform specifications,” contains a picture of a
“standard security uniform” accompanied by a description of the uniform. (ECF No. 97-10 at 35.)
Paragraph 4(H) provided that “[g]ear/tools will be provided by [PSC].” (Sec. Agreement. ¶ 4(H).)
In other words, PSC agreed to provide both uniforms and equipment to its employees.
Paragraph 5 addresses the provision of certain other “Equipment.”
For example,
subparagraph 5(A) and (B) provide that either GGP or PSC may provide security vehicles for
PSC’s use. (Sec. Agreement ¶ 5(A) (“[GGP] may provide a variety of security vehicles and
equipment for patrol at the [Buckland Hills Mall].”), id. ¶ 5(B) (“[GGP] may request that [PSC]
7
provide Security Vehicles for patrol at the [Buckland Hills Mall].”). Subparagraph 5(G) further
provides in relevant part that, except for office supplies and a duty cellphone, GGP was obligated
to permit PSC to use a variety of other equipment, including telephones, a radio system, a digital
camera, and internet connectivity:
(i) Security Office Supplies and Equipment. [PSC] shall provide all necessary office
supplies and equipment for the day-to-day operation of the security office at the [Buckland
Hills Mall]. [. . .]
Telephones Systems. [GGP] shall provide necessary telephones and telephone service for
the security office. [. . .]
(iii) Cellular Duty Phone. [GGP] may provide a cellular telephone and service for the onsite security supervisor during duty, which is to be used for business purposes only. [. . .]
(iv) Radio System. [PSC] shall be allowed to use [GGP’s] two-way radio system to support
the security program. Except as provided herein, [GGP] shall continue financial and
administrative responsibility for the licensing, acquisition, installation, repair and
maintenance of such equipment (radios, batteries, repeaters, chargers, etc.). [. . .]
[. . .]
(ix) Digital Camera. [GGP] shall provide a digital camera for [PSC’s] use at the [Buckland
Hills Mall]. [PSC] will be responsible for the camera and will replace it if lost or damaged
by [PSC].
(x) Internet Connectivity. [GGP] shall provide high speed internet connectivity for security
computers in the security office. [PSC] shall be required to comply with all of [GGP’s]
policies regarding computer usage. [. . .]
(Sec. Agreement. ¶ 4(G)(i), (iii), (iv), (ix), (x).)
In Paragraph 7, PSC agreed to provide health insurance to its security officers, as required
by applicable law. (Sec. Agreement. ¶ 7.) Paragraph 8(b) provides that PSC would maintain
liability insurance meeting certain requirements that named GGP and other entities GGP required
as additional insureds. (Sec. Agreement. ¶ 8(b).) PSC also agreed in Paragraph 8(e) to “defend,
indemnify, and hold harmless” GGP and its affiliates for certain covered claims, including suits
caused by any actual or alleged negligent act by PSC’s employees at the Buckland Hills Mall.
(Sec. Agreement. ¶ 8(e).)
8
Finally, in paragraph 9(G), PSC specifically warranted that it was an independent
contractor, not an agent or employee of GGP. (Sec. Agreement ¶ 9(G) (“[PSC] warrants and
represents that it is not an agent or employee of [GGP] or the [Buckland Hills Mall], but is an
independent contractor.”).)
B.
The March 18, 2017 Incident
On March 18, 2017, Sterling Jewelers employees Jamileth Anes (“Anes”) and Carmen
Santos (“Santos”) were working at the Kay Jewelers store at the Buckland Hills Mall. (Def.’s L.R.
56(a)1 Stmt. ¶ 1 (citing ECF No. 97-5, Deposition of Carmen Santos (“Santos Dep.”) Tr. 32:140:22, 79:15-80:20; ECF No. 97-6, Deposition of Jamileth Anes (“Anes Dep.”) Tr. 7:24-10:13,
15:3-17:17); Pl.’s 56(a)2 Stmt. ¶ 1.) Anes and Santos observed a man looking into the store; the
parties dispute whether they suspected him of previously attempting to commit fraud at the store.
(Def.’s L.R. 56(a)1 Stmt. ¶ 1; Pl.’s 56(a)2 Stmt. ¶ 1.)2 Santos called mall security. (Def.’s L.R.
56(a)1 Stmt. ¶ 1; Pl.’s 56(a)2 Stmt. ¶ 1.) On the call, Santos told mall security that there was a
gentleman outside their store who had been in Kay Jewelers about a week ago with credit cards,
and they thought he might do a “grab-and-run”; she asked mall security to stand by. (ECF No. 975, Santos Dep. Tr. 40:2-40:22.)3
Two security officers employed by PSC, Shevada Davis and Matt Vieweg, were dispatched
to Kay Jewelers in response. (Def.’s L.R. 56(a)1 Stmt. ¶ 2; Pl.’s 56(a)2 Stmt. ¶ 2.) Manchester
Police Officer John Decker was entering the Buckland Hills Mall when he was approached by a
2
The parties identify this and other facts as disputed, but in not all of these instances did
the parties submit evidence that raises a genuine dispute, complies with the Local Rules, or is
material. I nonetheless identify the facts as disputed here, and discuss below whether particular
facts are genuinely disputed.
3
Wade does not dispute the content of the call. (Pl.’s 56(a)2 Stmt. ¶ 1 (disputing whether
Santos and Anes suspected the man from the week prior but admitting remainder).)
9
mall security officer who relayed the information provided in the call by Santos. (Def.’s L.R.
56(a)1 Stmt. ¶ 3; Pl.’s 56(a)2 Stmt. ¶ 3.) Specifically, Vieweg told Officer Decker that mall
security was called by an employee at Kay Jewelers who reported seeing a person they believed
was a suspect in a fraud/larceny that had occurred previously at this location. (See ECF No. 97-4,
Deposition of John Decker (“Decker Dep.”) Tr. 11:4-21; ECF No. 97-8, Deposition of Matthew
Vieweg (“Vieweg Dep.”) Tr. 15:10-16:8 (both cited in Def.’s L.R. 56(a)1 Stmt. ¶ 3)4.) Officer
Decker found Wade in the middle of a mall common area and asked to see identification. (Def.’s
L.R. 56(a)1 Stmt. ¶ 4; Pl.’s 56(a)2 Stmt. ¶ 4.) The parties dispute whether Decker merely
approached or actually “stopped” Wade. (Def.’s L.R. 56(a)1 Stmt. ¶ 4; Pl.’s 56(a)2 Stmt. ¶ 4.)5
Wade cooperated with Decker’s request and provided his driver’s license and security guard
identification, though the parties dispute whether any cooperation was voluntary. (Def.’s L.R.
56(a)1 Stmt. ¶ 5; Pl.’s 56(a)2 Stmt. ¶ 5.) Davis and Vieweg stood several feet away while Decker
spoke briefly with Wade and checked Wade’s identification with Manchester police dispatch.
(Def.’s L.R. 56(a)1 Stmt. ¶ 6; Pl.’s 56(a)2 Stmt. ¶ 6; see ECF No. 97-7, Deposition of Shevada
Davis (“Davis Dep.”) Tr. 21:14-19, 61:9-12, 73:17-74:5; ECF No. 97-8, Vieweg Dep. Tr. 18:425).) Wade initially declined to walk with Officer Decker towards Kay Jewelers, but ultimately
4
Vieweg actually testified that he told Officer Decker that Kay said the man had potentially
defrauded a store in Holyoke, Massachusetts, but because the above statement in GGP’s Local
Rule 56(a)1 statement is adequately supported and Wade admits it, any discrepancy does not
matter. (ECF No. 97-8, Vieweg Dep. Tr. 15:10-15:15.)
5
As discussed below, Wade also provides evidence suggesting that Davis first stopped
Wade, pulled him aside, and said that a Kay Jewelers’ employee had identified Wade as a fraud or
larceny suspect over the past several months. (See Pl.’s 56(a)2 Stmt. ¶ 7; ECF No. 97-2, May 10,
2017 Deposition of Fabian Wade (“Wade (May 2017) Dep.”) Tr. 46:8-12, 70:8-11; ECF No. 973, May 2, 2018 Deposition of Fabian Wade (“Wade (May 2018) Dep.”) Tr. 9:10-22, 131:25132:8.)
10
did so—though the parties again dispute whether this decision was voluntary. (Def.’s L.R. 56(a)1
Stmt. ¶ 8; Pl.’s 56(a)2 Stmt. ¶ 8.)
At some point, the interaction ended. The parties dispute whether Wade was actually
detained at any time during the incident or was always free to walk away. (Def.’s L.R. 56(a)1
Stmt. ¶ 7; Pl.’s 56(a)2 Stmt. ¶ 7.) In his brief opposing the Defendants’ motion to dismiss, Wade
admitted that he was not claiming that the mall security officers or MPD Decker “targeted Plaintiff
for suspicion of a crime based on his race or color of skin.” (ECF No. 50 at 6.)
The parties dispute whether Davis, Vieweg and a third PSC security officer, Kevin
Crosby,6 were GGP’s agents. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 12–13; Pl.’s 56(a)2 Stmt. ¶¶ 12–13.)
The parties also dispute whether all three were employed by PSC, and not GGP, or wore security
uniforms with a PSC logo. (See Def.’s L.R. 56(a)1 Stmt. ¶ 13; see also Pl.’s L.R. 56(a)2 Stmt. ¶
13 (denying the above).)
II.
Legal Standard
Summary judgment is appropriate only when the moving party “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). “In making that determination, a court must view the evidence in the light
6
Crosby appears to have been a dispatcher at the Buckland Hills Mall. (See ECF No. 979, Deposition of Kevin Crosby (“Crosby Dep.”) Tr. 10:15-23; ECF No. 93-2 (“Security Director
Activity Detail” lists Crosby as “Dispatcher” on March 18, 2017).) However, neither GGP nor
Wade points to any evidence in their briefs or Local Rule 56(a) statements indicating any specific
conduct by Crosby in connection with the incident. GGP’s opening brief states: “Sterling
Jewelers’ manager Carmen Santos called PSC security dispatcher Kevin Crosby to report that a
suspicious male who had attempted credit card fraud a week earlier had returned after Sterling
Jeweler’[s] employee Jamileth Anes believed she recognized Plaintiff who she observed standing
outside of the Sterling Jeweler’s store as a man who had provided multiple names and attempted
to use multiple declined credit cards repeatedly the week prior.” (ECF No. 97-1 at 10.) However,
the evidence GGP cites in support indicates only that Santos called security based on Anes’ belief
that the man from the prior incident was in front of Kay Jewelers. (ECF No. 97-6, Anes Dep. Tr.
8:2-10:18, 15:3-14; ECF No. 97-5, Santos Dep. Tr. 32:1-40:22, 79:15-80:20.)
11
most favorable to the opposing party.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal
quotation marks and citations omitted). “A fact is material when it might affect the outcome of
the suit under governing law,” and “an issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal citations and quotation marks omitted). The
moving party bears the burden “of showing that no genuine factual dispute exists . . ., and in
assessing the record to determine whether there is a genuine issue as to any material fact, the court
is required to resolve all ambiguities and draw all factual inferences” in favor of the non-moving
party. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (internal citations omitted).
III.
Discussion
Wade argues that GGP’s motion for summary judgment should be denied because GGP is
liable for the torts of the mall security guards under agency principles, and that genuine disputes
of material fact preclude summary judgment on the false imprisonment, negligent infliction of
emotional distress, and negligent supervision claims involving those guards. (ECF No. 102 at 8–
14, 16–27, 31–34.) Wade repeats these arguments in opposing PSC’s motion for summary
judgment. (ECF No. 101 at 8–15, 17–27, 32–35.) Because the record shows that GGP is not liable
for the torts of the mall security guards under agency principles and in any event is entitled to
summary judgment as to each of the claims against it, I grant GGP’s motion for summary
judgment. I thus need not reach Wade’s arguments concerning PSC’s motion and deny that motion
as moot.
A.
GGP’s Motion for Summary Judgment
GGP asserts that it cannot be held liable for any of the torts of the PSC-employed security
guards because PSC is an independent contractor providing security services, and thus GGP is
12
entitled to summary judgment on all counts. (ECF No. 97-1 at 12–18.) Wade counters that genuine
disputes of fact exist over whether GGP is liable under an exception to the usual rule of nonliability for independent contractors due to GGP’s reservation of control over PSC in the Security
Agreement, or in the alternative because GGP is liable under the doctrine of apparent agency.
(ECF No. 102 at 8–14.) Wade has not raised a genuine dispute of material fact on either issue,
and so summary judgment in GGP’s favor is appropriate on this ground alone. However, GGP
further argues that even if the PSC-employed security guards were GGP’s agents, summary
judgment is appropriate on Wade’s false imprisonment, negligent infliction of emotional distress,
and negligent supervision claims against GGP, which Wade contests. (ECF No. 97-1 at 19–27,
32–35; ECF No. 102 at 16–27, 31–34.) I conclude that even if GGP could be held liable for torts
by PSC’s employees under agency principles, GGP would still be entitled to summary judgment
on these claims.
1.
Exception to the Non-Liability Rule for Independent Contractors
Wade argues that GGP should be held vicariously liable for PSC’s employees’ torts
because, although they were actually employed by PSC, GGP reserved general control over PSC’s
employees in the Security Agreement. (ECF No. 102 at 9–10.) “As a general rule, an employer
is not liable for the negligence of its independent contractors.” Pelletier v. Sordoni/Skanska
Construction Co., 264 Conn. 509, 517 (2003) (citation and quotation marks omitted). GGP’s
motion argues that PSC is an independent contractor for which GGP has no liability, relying on
both the Security Agreement and the testimony of the mall security guards. (ECF No. 97-1 at 12–
16; see also Def.’s L.R. 56(a)(1) Stmt. ¶¶ 12, 13; ECF No. 97-7, Davis Dep. Tr. 9:5-7; ECF No.
97-8, Vieweg Dep. Tr. 9:12-10:7, 39:12-40:18; ECF No. 97-9, Crosby Dep. Tr. 8:20-9:11.) Wade
admits that the Security Agreement designated PSC as an independent contractor, and his brief
13
does not challenge GGP’s argument that PSC was its independent contractor. (See ECF No. 102
at 9 (“There is no dispute that PSC is designated as an independent contractor of GGP . . . . The
issue here is whether any exceptions exist[] to the nonliability rule that a contractee or proprietor
is not liable for injuries caused by an independent contractor to another person[.]”).) Wade instead
argues that an exception applies because GGP reserved “control” over PSC’s employees in the
Security Agreement. (ECF No. 102 at 9.)
Under Connecticut law, a party may be held liable for the torts of its independent contractor
where the party “reserve[s] in his contract general control over the contractor or his servants, or
over the manner of doing the work.” Pelletier, 264 Conn. at 518. Nonetheless, an employer “may
exercise a limited degree of control or give the contractor instructions on minor details without
destroying the independent character of the contractor.” Mozeleski v. Thomas, 76 Conn. App. 287,
293 (2003). To impose liability on an employer for the acts of an independent contractor:
The employer must have retained at least some degree of control over the manner in which
the work is done. It is not enough that he has merely a general right to order the work
stopped or resumed, to inspect its progress or to receive reports, to make suggestions or
recommendations which need not necessarily be followed, or to prescribe alterations and
deviations. Such a general right is usually reserved to employers, but it does not mean that
the contractor is controlled as to his methods of work, or as to operative detail. There must
be such a retention of a right of supervision that the contractor is not entirely free to do the
work in his own way.
Restatement (Second) of Torts § 414 cmt. c (1965); see Mozeleski, 76 Conn. App. at 293 (citing
the Restatement). On summary judgment, “[w]here the evidence on the question as to who had
control of the area or instrumentality causing the injury is such that the mind of a fair and
reasonable [person] could reach but one conclusion as to the identity of the person exercising
control, the question is one for the court . . . .” Pelletier, 286 Conn. at 599 (citation omitted).
Wade argues that GGP retained control over the security guards based on seven sets of provisions
14
in the Security Agreement. Because the Security Agreement supports only one conclusion—that
PSC, not GGP, controlled PSC’s security guards—I reject Wade’s argument.7
First, Wade argues that “GGP determined and controlled the number of hours to be
performed,” citing paragraph 3(D)(2) of the Security Agreement. (ECF No. 102 at 10; Sec.
Agreement ¶ 3(D)(2).) But read in light of the rest of paragraph 3(D), that provision clearly
establishes the opposite—that PSC controlled the number of hours worked in the first instance.
Paragraph 3(D)(1) requires that PSC “establish a corporate management group dedicated to the
Property” which would be “responsible for fulfillment of [GGP’s] performance standards.” (Sec.
Agreement ¶ 3(D)(1).) Paragraph 3(D)(2) provides that the management group would consist of
“security practitioners responsible for the overall success of the on-site security program and the
execution of all applicable requirements set forth in this Agreement.” (Sec. Agreement ¶ 3(D)(2).)
The subparagraph further states in relevant part that PSC’s “assigned regional manager [for each
mall] shall manage no more than 8,000 hours of security [c]overage per week” unless GGP grants
an exception. (Id.) In sum, GGP set a soft cap on man-hours above which further approval would
be needed, but left up to PSC how to set up its management team and to determine how many
weekly man-hours each mall required. The soft cap on hours and GGP’s approval right are simply
general requirements on when GGP would need to approve coverage, not “control[] as to [PSC’s]
methods of work, or as to operative detail.” Restatement (Second) of Torts § 414 cmt c; see also
Pelletier v. Sordoni/Skanska Const. Co., 286 Conn. 563, 601–02 (2008) (concluding that general
7
Although the parties both cite provisions of the Agreement in support of their arguments,
they do not appear to dispute the meaning of the contractual language, and neither party suggests
that the Agreement is ambiguous. The dispute is over the effect of the Agreement’s provisions on
the question of the degree of control reserved by GGP over PSC. I thus need not consider the
effect of Illinois law – which the Agreement selects as the law governing its construction – on the
interpretation of the Agreement, and the parties do not suggest otherwise.
15
contractor could not be held liable for subcontractor’s negligence where the contract required the
subcontractor to fabricate and inspect all structural steel elements at issue and general contractor
could only require that the inspections be performed).
Second, Wade argues that GGP reserved “general control over its mall security guards” in
paragraph 3(F). (ECF No. 102 at 10; see Sec. Agreement. ¶ 3(F).) But this paragraph governs the
responsibilities of and requirements for the “Security Manager,” a PSC employee. (See Sec.
Agreement. ¶¶ 3(E)(1) (“[PSC] will provide an on-site security manager (‘Security Manager’). . .
.”), 3(F) (“On-Site Security Management”).) It further provides that among those responsibilities,
“[t]he Security Manager is to be a security practitioner responsible for the daily operation of the
security program and the execution of contract requirements.” Id. ¶ 3(F)(2). Although there is
language in this paragraph requiring approval by GGP of work by the Security Manager not
involving the mall (id. ¶ 3(F)(5)), nothing in this section of the Agreement suggests that GGP
controlled how PSC personnel performed their responsibilities under the Agreement.
Third, Wade argues that GGP reserved control in paragraph 3(G) by setting the weekly
hours and hourly wages of the security guards. (ECF No. 102 at 10.) Paragraph 3(G) does provide
that “[GGP] and [PSC] shall agree upon the weekly deployment of staffing template needed to
provide the [security services as described in the Agreement] to the [Buckland Hills Mall].” (Sec.
Agreement ¶ 3(G)(1).) It continues: “The agreed upon weekly staffing deployment template for
each day of the week and each hour of the day shall be documented in [GGP’s] required format in
Exhibit A,” to be provided by PSC to GGP. (Id.) Exhibit A is an “[a]nnual [e]stimate” of the
“Property Staffing . . . and Billing Rates” for the Buckland Hills mall, which does include estimated
billing rates and hours for particular levels of employees. (ECF No. 97–10 at 27–28.) Nonetheless,
paragraph 3(G)(1) expressly provides that “the agreed upon weekly staff deployment is a flexible
16
template and at times . . . [PSC] may operate with different staffing levels due to training,
administrative duties, and scheduling conflicts.” (Sec. Agreement ¶ 3(G)(1).) Further, paragraph
3(G)(2) provides that PSC will provide GGP “with a staffing proposal that reflects the agreed upon
weekly staffing deployment” and “set[s] forth the approved positions and corresponding hours,
wage rates, bill rates and line total, weekly and annual totals.” (Sec. Agreement. ¶ 3(G)(2).) In
other words, Exhibit A does not affirmatively set billing and hours requirements but, read in light
of sections 3(G)(1) and 3(G)(2), is simply an example of the format in which PSC is expected to
provide its estimated weekly staffing and billing rates, which GGP then approves and which PSC
is free to deviate from on a day-to-day basis. GGP’s sign-off on weekly staffing and billing
proposals for PSC’s security guards is akin to a weekly bill or status report, not control of the
“operative detail” on how PSC goes about guarding the Buckland Hills Mall. See Darling v.
Burrone Bros., 162 Conn. 187, 193 (1972) (“The fact that [the general contractor] was present at
the job site, indicated to [the subcontractor] where to dig the ditch and how deep to dig it,
periodically checked to make sure the depth was accurate and marked the area establishing the
location of the lateral [pipe] by sticks imbedded in the ground signifies no more than the furnishing
of specifications for the job. It does not demonstrate control of the manner and means of
accomplishing the digging. It is apparent that [the employer] did no more than exercise his right
to supervise the general result and also the immediate results, from time to time, as the work
progressed.”); 900 Shelton Plaza Assocs. v. AT & T, No. CV126008994, 2014 WL 5569314, at *3
(Conn. Super. Ct. Oct. 1, 2014) (finding no contractual control based on employer’s right to ensure
compliance with plans and specifications).
Fourth, Wade argues that GGP reserved general control by setting and determining the
dress code for mall security. (ECF No. 102 at 10.) Wade’s reading of the contract in this regard
17
is correct, as paragraph 4 and Exhibit D to the Security Agreement provides specific, depicted
requirements for the uniform for mall security personnel. (See Sec. Agreement ¶ 4(D) (“[T]he
regular security uniform will be the standard patrol uniform for interior and exterior security patrol
as depicted on Exhibit D attached to this Agreement” absent an exception).) Nonetheless, setting
uniform requirements for mall security does not control the “methods of work” or “operative
detail,” just as a hospital’s requiring a contracted doctor to wear a white coat and stethoscope
would not alone make her a hospital employee. See, e.g., Greene v. Quraishi, No. CV136045815S,
2017 WL 960733, at *4 (Conn. Super. Ct. Jan. 25, 2017) (granting summary judgment where
independently contracted doctor’s provision of services at medical center did not raise “material
dispute as to the understanding between [doctor] and [medical center] that [medical center] had a
right to control [doctor’s] clinical decisions on how to diagnose and treat” a patient); see also
Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495 (finding that detailed contractual
requirements about manner of laying of gas pipes did not obviate that “general control over the
work, as to the manner and method of its execution. . . remained in the contractor”). Moreover, as
discussed below, the uniforms actually worn by the PSC security personnel in this case bore PSC
logos.
Fifth, Wade argues that GGP reserved control by setting training requirements. (ECF No.
102 at 10.)
Indeed, the Security Agreement attaches an Exhibit B, captioned “Training
Requirements [/] Basic Training” that “mall security officers working at the [Buckland Hills Mall
are required to] successfully complete. . . .” (ECF No. 97-10 at 29–32.) However, even though
GGP sets the general content of training, the Security Agreement makes clear that PSC is
responsible for providing a trained staff. (Sec. Agreement ¶ 3(J)(1) (“[PSC] shall promote and
provide a trained and capable security staff.”).) Accordingly, the Security Agreement permits PSC
18
to train its staff either by developing courses itself, obtaining certifications through a third-party
system, or by administering proficiency tests. (Sec. Agreement ¶ 3(J)(1)–(3).) Again, setting
minimum specifications for the job does not rise to control of the operative details. See Norwalk
Gaslight Co., 63 Conn. 495 (finding no control where contract provided specifications for the work
and right to ensure compliance therewith); 900 Shelton Plaza Assocs., 2014 WL 5569314, at *3
(same).
Sixth, Wade argues that GGP reserved control by “owning and controlling the main
security work tool, the security TV monitoring systems – American Dynamics’ CCTV systems.”
(ECF No. 102 at 11.) But the provision Wade cites, paragraph 3(D)(5), simply provides that PSC
will provide a “master trainer” to train the rest of its employees on the existing CCTV camera
system. (Sec. Agreement ¶ 3(D)(5) (“[PSC] will provide and maintain at its corporate office at
least one dedicated CCTV master trainer for [GGP’s] American Dynamics’ CCTV systems.”).)
There is no evidence that GGP actually controlled the operation of the CCTV system, and the
contract itself indicates that PSC employees are responsible for its operation. (See id. (“The master
trainer will be responsible for overseeing the training program for [PSC’s] staff assigned to operate
[GGP’s] CCTV systems.”) (emphasis added).)8
Seventh and finally, Wade argues that GGP reserved control by “owning and controlling
all other security equipment (except for office supplies [. . .]), including security vehicles, security
communication systems, telephone service system, cellular telephones, two-way radio systems,
Wade raises a spoliation issue with respect to GGP’s supposed destruction of a videotape
of the incident. (ECF No. 102 at 11.) It is not clear how this is relevant to the question of whether
GGP exercised control over PSC. In any event, as later discussed, Wade never brought a discovery
motion seeking an adverse inference and there is no evidence that any destruction was intentional,
as Rule 37(e) would require before the Court could draw the adverse inference Wade seeks. Fed.
R. Civ. P. 37(e)(2).
8
19
digital camera system, and internet service.” (ECF No. 102 at 11 (citing Sec. Agreement ¶ 5(A),
(G).) Wade’s argument ignores the provision of the Agreement requiring PSC to provide
“[g]ear/tools” for its security guards. (Sec. Agreement. ¶ 4(H).) Paragraph 5 addresses the
provision of certain other “Equipment,” including security vehicles, which may be provided by
either GGP or PSC. (Sec. Agreement ¶ 5(A) (“[GGP] may provide a variety of security vehicles
. . .”) (emphasis added); id. ¶ 5(B) (“[GGP] may request that [PSC] provide Security Vehicles for
patrol at the [Buckland Hills Mall].”).) The Agreement does require that GGP provide some of
the remaining equipment, but as GGP observes, “the agreement recognizes that the owner’s
property stays their own, and that PSC may use it to fulfill their obligations as an independent
contractor.” (ECF No. 103 at 6; Sec. Agreement ¶ 5(G)(i), (iv), (vi), (ix), (x) (providing that GGP
shall provide telephone communication systems, a digital camera, internet service, and allow PSC
to use its two-way radio system); id. ¶ 5(G)(iii) (“[GGP] may provide a cellular telephone and
service . . . .”).) In other words, the fact that GGP made certain other resources available to PSC
for use does not rise to controlling the “methods of work” or “operative detail,” especially given
that PSC is itself required to provide its employees gear, tools, and “office supplies and equipment
for the day-to-day operation of the security office.” (Sec. Agreement ¶ 5(G)(i).)
Other provisions of the Security Agreement also make clear that GGP did not reserve
control over the method or manner of PSC’s work. The Agreement explicitly provides that PSC
is an independent contractor, and that PSC’s security guards are PSC’s, not GGP’s, employees or
agents. (Sec. Agreement. ¶¶ 3(E)(3), 9(G).) PSC is responsible for hiring its own security officers
for the Buckland Hills Mall and providing them with uniforms, gear, health insurance, and training.
(Sec. Agreement. ¶¶ 3(E)(9)), 3(J)(1), 4(A), 4(H), 7.) The Agreement further envisions that
security-related communications are in the usual course between the designated supervisors for
20
both GGP and PSC, which suggests that it remains up to PSC’s management to decide how to
implement responses to requests from its customer – GGP is not, in the ordinary course, to give
instructions directly to PSC’s line employees. (Sec. Agreement. ¶ 3(E)(3).)
And when
emergencies require GGP to communicate directly with those employees, the Security Agreement
warrants that such communications do not constitute any co-employment, implying the parties
intended to preserve the two separate chains of command. (Id.) Although the Agreement’s
constriction of PSC’s discretion to suspend employees who are accused or convicted of a “crime
or violation of public trust,” as well as GGP’s unilateral ability to have PSC mall security officers
“reassign[ed]” for performance-based reasons, favor a contrary determination (Sec. Agreement.
¶¶ 3(E)(10), (11)), these partial reservations of control are insufficient on their own. See Norwalk
Gaslight Co., 63 Conn. 495 (affirming independent contractor jury instruction where contract,
inter alia, specified generally how work should be done and reserved employer’s right to confirm
compliance with those specifications and to direct the removal of inadequate employees or tools,
because the “reservations of control . . . [were] partial, and existing in certain respects only.”). In
addition, PSC agreed not only to name GGP and its affiliates as additional insureds for its liability
insurance, but also to defend and indemnify GGP for any claims arising out of the Agreement,
including for any alleged negligent act by PSC’s employees at the Buckland Hills Mall like those
Wade now claims. (Sec. Agreement. ¶ 8(b), (e).) In other words, PSC itself assumed the risk of
liability arising out of the security it had agreed to provide at the Buckland Hills Mall. Although
GGP set the general requirements, it is clear from the Security Agreement that GGP did not reserve
control over the method or manner of PSC’s work. See 900 Shelton Plaza Assocs., 2014 WL
5569314, at *3 (granting summary judgment to employer where “provisions of the agreement
pertaining to the [employer’s] right to inspect [independent contractor’s] work, ensure compliance
21
with the plans and specifications, and to do the described work itself or employ other companies
to do it” did not demonstrate that “defendant retained the right to control the manner and means
used by [independent contractor]”).
Further, the only evidence in the record concerning actual performance of the Agreement
points to the conclusion that GGP did not control the method or manner of PSC’s work. Davis,
Vieweg, and Crosby testified that they were PSC employees, and Vieweg testified that he and
Davis wore a uniform with PSC’s logo. (See Def.’s L.R. 56(a)1 Stmt. ¶ 13; ECF No. 97-7, Davis
Dep. Tr. 9:5-7; ECF No. 97-8, Vieweg Dep. Tr. 9:12-10:7, 39:12-40:18; ECF No. 97-9, Crosby
Dep. Tr. 8:20-9:11.)9 Wade has submitted no evidence suggesting that GGP in practice had any
role in the day-to-day operation of security at the mall. See Mozeleski, 76 Conn. App. at 293
(granting summary judgment where nonmovant did not file a counteraffidavit or any other
supporting documents to contradict movant’s evidence of non-control).
With respect to the events from which Wade’s claims arise, there is no evidence in the
record suggesting that GGP supervised or played any other role in directing the actions of the PSC
security guards. Rather, the undisputed evidence shows that, after Santos called mall security to
report Wade, two security officers employed by PSC – Davis and Vieweg – were dispatched to
Kay Jewelers in response. (Def.’s L.R. 56(a)1 Stmt. ¶ 2; Pl.’s 56(a)2 Stmt. ¶ 2.) Although there
is a dispute (discussed later) over whether Vieweg assisted Officer Decker to stop Wade by
identifying him or whether Davis independently stopped Wade before Officer Decker arrived, the
Wade’s L.R. 56(a)2 Statement purports to dispute Vieweg, Davis, and Crosby’s testimony
that they were PSC employees or did not wear uniforms with a PSC logo. (Compare Def.’s L.R.
56(a)1 Stmt. ¶ 13 and Pl.’s L.R. 56(a)2 Stmt. ¶ 13). Wade’s denial is based solely on the Security
Agreement, not evidence of actual practice (and in any event nothing in the Security Agreement
supports Wade’s reading), and so he does not raise a “genuine” dispute as to whether Davis,
Vieweg, or Crosby were PSC employees or wore uniforms with PSC logo.
9
22
parties agree that after Wade was stopped, Davis and Vieweg stood several feet away while Officer
Decker checked Wade’s identification with Manchester police dispatch. (Def.’s L.R. 56(a)1 Stmt.
¶ 6; Pl.’s 56(a)2 Stmt. ¶ 6.) The parties do not point to any evidence at all of relevant conduct by
Crosby, the only other PSC employee mentioned in their papers and Local Rule statements. Nor
do they point to evidence of any conduct by a GGP employee. Accordingly, there is simply no
evidence that GGP exercised any control over the judgments made by the PSC employees
regarding how to respond to calls, when to summon the police, and how to approach a suspect,
either generally or in connection with the March 18, 2017 incident. See also Darling, 162 Conn.
at 194 (“It is also undisputed that [the general contractor] in no manner told [the subcontractor]
how to dig the ditch or slope its sides.”); compare Lombardi v. Luanci Const., No. CV136038009S,
2015 WL 601317, at *2 (Conn. Super. Ct. Jan. 22, 2015) (denying motion for summary judgment
where non-movant submitted evidence that employer frequented the premises during independent
contractor’s construction and was involved in the decision-making process but it was disputed
whether employer gave specific instructions concerning major changes to the construction).
I conclude that Wade has failed to point to any evidence in the record suggesting that an
exception to the usual rule of non-liability for independent contractors applies.
2.
Apparent Agency
Wade next argues that even if GGP does not have control over its independent contractors,
it is still liable under the doctrine of apparent agency. (ECF No. 102 at 12–14.) In Cefaratti v.
Aranow, the Connecticut Supreme Court set forth two ways a plaintiff could prove apparent agency
in tort cases. 321 Conn. 593 (2016). Under the first standard, “the plaintiff may establish apparent
agency by proving that: (1) the principal held itself out as providing certain services; (2) the
plaintiff selected the principal on the basis of its representations; and (3) the plaintiff relied on the
23
principal to select the specific person who performed the services that resulted in the harm
complained of by the plaintiff.” Id. at 624. Alternatively, the plaintiff can show that “(1) the
principal held the apparent agent or employee out to the public as possessing the authority to
engage in the conduct at issue, or knowingly permitted the apparent agent or employee to act as
having such authority; (2) the plaintiff knew of these acts by the principal, and actually and
reasonably believed that the agent or employee or apparent agent or employee possessed the
necessary authority; and (3) the plaintiff detrimentally relied on the principal’s acts, i.e., the
plaintiff would not have dealt with the tortfeasor if the plaintiff had known that the tortfeasor was
not the principal’s agent or employee.” Id. at 624–25. Wade argues that GGP is liable under the
first test of apparent agency. (ECF No. 102 at 12–14.) I disagree, because Wade has not raised a
genuine dispute on the second element, whether Wade selected GGP on the basis of its
representations.
GGP cites Wade’s own testimony to show that Wade did not select the mall on the basis
of any representation it made with respect to its security, but instead went there to purchase
merchandise. (ECF No. 97-1 at 18; ECF No. 97-3, Wade (May 2018) Dep. Tr. 8:14-15 (“I went
to the mall, went there to purchase a shirt and a shoes”).) This evidence “establishes the absence
of a material dispute as to the second element of the first standard, i.e., that [Wade] did not rely
upon any representations made to him by [GGP with respect to its security] in selecting [it].”
Greene, 2017 WL 960733, at *4. In his opposition brief, Wade relies heavily on Exhibit C to the
Security Agreement, captioned “Customer Service Guidelines,” to argue that GGP holds itself out
to the public as providing “shopping experiences to customers including [Wade],” which includes
the provision of professional security guards. (ECF No. 102 at 13.) Even if this evidence raised a
genuine dispute about whether GGP held itself out as providing shopping ‘experiences’ including
24
security (as opposed to shopping by itself), Wade does not put forward any evidence showing that
he relied on this representation when he decided to shop at the Buckland Hills Mall (nor is it clear
that he could have, given that Wade presumably did not possess this document until discovery).
Wade thus does not raise a genuine dispute of material fact on the second element of his theory of
apparent agency. See Greene, 2017 WL 960733, at *5 (granting summary judgment for lack of
apparent agency where “plaintiffs did not submit any evidence to substantiate [that they relied on
defendants’ representations about wound care services] other than a copy of the ECHN webpage,
which by itself, without an affidavit or a testimony that either [plaintiff] or [the referring doctor]
selected ECHN on the basis of the representations made on the webpage, is insufficient to create
a material dispute as to the second element . . . .”).10
Because GGP cannot be held liable under an exception to the usual rule of non-liability for
independent contractors or under a theory of apparent agency, GGP is not liable for the torts of
PSC’s employees. Accordingly, the Court GRANTS GGP’s motion for summary judgment in its
entirety.
3.
False Imprisonment
Even if the record permitted a reasonable juror to find GGP liable under agency principles,
I would still conclude that GGP is entitled to summary judgment on Wade’s claims against it. I
turn first to Wade’s false imprisonment claim.
To the extent Wade also attempts to argue that GGP is liable for Sterling’s torts under a
theory of apparent agency (ECF No. 102 at 15–16), this claim fails for the same reason—that Wade
has not put any forward evidence showing that he actually relied on any representation in Exhibit
C to Security Agreement (or any other representation by GGP) in deciding to shop at the Buckland
Hills Mall. In addition, Wade’s amended complaint does not plead that Sterling’s employees acted
as GGP’s agents, and he cannot amend his complaint through his opposition brief. (See ECF No.
36 at ¶ 11 (alleging that Jane Doe 1 and 2 [i.e., the security guards] were “employees of Kay
Jewelers, employed at the Kay Jewelers store at Buckland Hills Mall”) (emphasis added).)
10
25
“[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of
another.” Berry v. Loiseau, 223 Conn. 786, 820 (1992) (citation omitted). “To prevail on a claim
of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the
defendant and that the restraint was against his will, that is, that he did not consent to the restraint
or acquiesce in it willingly.” Id. (citation omitted). The restraint must be accomplished through
the “exercise of force . . . express or implied.” Id. at 821. “Any period of such restraint, however
brief in duration, is sufficient to constitute a basis for liability.” Green v. Donroe, 186 Conn. 265,
267 (1982); see id. (“The fact that there was no formal arrest of the plaintiff . . . and that he
remained in the custody of the police for only ten minutes would not necessarily defeat his cause
of action for false imprisonment.”). In addition, “the detention must be wholly unlawful . . . .” Lo
Sacco v. Young, 20 Conn. App. 6, 19 (1989). Nonetheless, “[a] person is not liable for false
imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge
that such confinement will, to a substantial certainty, result from it.” Rivera v. Double A Transp.,
Inc., 248 Conn. 21, 31 (1999) (citing Donroe, 186 Conn. at 268). “Nothing less than a rather
extreme brand of recklessness will substitute for the standard requirement of intention in false
imprisonment cases.” Id. Finally, “[a] seizure permissible under the Fourth Amendment is not
‘unlawful’ and therefore cannot sustain a claim of false imprisonment.” Seifert v. Rivera, 933 F.
Supp. 2d 307, 320 (D. Conn. 2013) (citation and internal quotation marks omitted); see also Russo
v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007) (observing Connecticut law principle that
a false imprisonment claim cannot lie where “the arrest of the plaintiff is legally authorized”
(citation omitted).)
Wade argues that summary judgment is not warranted because (1) mall security personnel
and Officer Decker stopped and surrounded Wade, thus effecting a confinement (ECF No. 102 at
26
17–20); (2) Wade did not consent to that confinement (ECF No. 102 at 20–24); and (3) mall
security and Officer Decker were not authorized to stop Wade under Terry v. Ohio, 392 U.S. 1
(1968) (ECF No. 102 at 24–27.) I disagree. Even assuming that mall security effected a restraint
on Wade, that any restraint was not voluntary, that GGP (through its supposed agents, the mall
security officers) acted with the requisite intent, and that any restraint amounted to an investigative
stop, summary judgment is nonetheless appropriate because any such stop was a Terry stop
supported by reasonable suspicion, and thus was consistent with Fourth Amendment principles.11
Under Terry v. Ohio, 392 U.S. 1 (1968), “[a] police officer may stop a suspect without
probable cause for an arrest if the officer has a reasonable suspicion that the suspect has committed,
is committing, or is about to commit a crime.” Galan-Blair v. Busillo, No. 3:08-CV-295 (CFD),
2010 WL 3034303, at *2 (D. Conn. July 27, 2010) (citing Terry, 392 U.S. 1 (1968).) “While
‘reasonable suspicion’ does not have a precise definition, the standard requires an officer to have
a ‘minimal level of objective justification.’ Id. (citing United States v. Glover, 957 F.2d 1004, 1009
(2d Cir. 1992).). “A court must consider the ‘totality of the circumstances’ surrounding the stop .
. . and because the test is an objective one, the subjective motivations of the individual officer are
not relevant to the analysis.” Id. (citing United States v. Sokolow, 490 U.S. 1, 8 (1989); Glover,
975 F.2d at 1010). In addition, “[a]n investigative detention must be temporary and last no longer
11
Wade again raises a spoliation issue in his discussion of the false imprisonment claim.
(ECF No. 102 at 19.) It is unlikely that GGP’s destruction of a videotape of the incident is relevant
to whether the PSC security personnel had reasonable suspicion to stop Wade, because it is
undisputed that they initiated the events that led to that stop based on telephone and oral reports
from Kay employees, which would not have been captured by the videotape. In any event, Wade
never brought a discovery motion seeking an adverse inference and there is no evidence that any
destruction was intentional, as Rule 37(e) requires. Fed. R. Civ. P. 37(e)(2) (adverse inference
warranted “only upon finding that the party acted with the intent to deprive another party of the
information’s use in the litigation”). (See ECF No. 91-5 (e-mail between counsel claiming stating
that video evidence was destroyed after 30 days in accordance with “industry standards” and before
any complaint was filed or any claim anticipated).)
27
than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods
employed should be the least intrusive means reasonably available to verify or dispel the officer’s
suspicion in a short period of time.” Chance v. Cundy, No. CIV.A. 303CV40JCH, 2004 WL
2009282, at *4 (D. Conn. Sept. 7, 2004) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion).) “The Second Circuit has announced several factors which help courts
distinguish such investigatory stops from formal arrests, such as: the amount of force used by
police, the number of officers involved, the duration of the stop, whether handcuffs were used,
whether the suspect was believed to be armed, the physical treatment of the suspect by police, and
the extent to which the suspect’s freedom of movement was restrained.” Galan-Blair, 2010 WL
3034303, at *2 (citing United States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993)).
Construing the record in Wade’s favor, I find that there is a genuine dispute over whether
PSC employees assisted Officer Decker to stop Wade or whether they stopped Wade themselves.12
But this dispute is immaterial because the undisputed evidence shows that mall security had
reasonable suspicion to make a stop at that point. When Santos called mall security, she reported
that there was a gentleman outside Kay Jewelers who had previously been at Kay Jewelers the
week before with credit cards that she thought might do a “grab-and-run.” (Def.’s L.R. 56(a)1
Stmt. ¶ 1 (citing ECF No. 97-5, Santos Dep. Tr. 32–33, 40:2-40:8 (“I told them, you know, there
is a gentleman. He is no longer in front of our store. He was here about a week ago. And we just
12
The evidence shows either that (a) Vieweg assisted Officer Decker to stop Wade by
identifying Wade, or (b) Davis independently stopped Wade before Officer Decker arrived. (See
ECF No. 97-8, Vieweg Dep. Tr. 15:10-16:8 (testifying that he provided a description of Wade to
Officer Decker); Pl.’s 56(a)2 Stmt. ¶ 7 (citing evidence of Davis stopping Wade); ECF No. 97-2,
Wade (May 2017) Dep. Tr. 46:8-12 (“[Davis] first pulled me aside. She asked me can I come here,
and I was, like, sure, why not. And I say what is this about, and then she just starts stating that Kay
Jewelry called and said it’s me that’s been [robbing them] for three months.”), 70:8-11, ECF No.
97-3, Wade (May 2018) Dep. Tr. 9:10-22, 131:25-132:8).)
28
want you to stand by just in case he tries to do a grab-and-run. He had been there before with the
credit cards, so please just stand by just in case. You know, just kind of like if in case he tries to
do a grab-and-run.”).) Wade does not dispute the content of the call, only that Santos did not in
fact suspect the man from the previous week of any of crimes. (Pl.’s L.R. 56(a)2 Stmt. ¶ 1.) But
regardless of what Santos believed, there is no evidence any of the PSC personnel had reason to
doubt her report, which is generally presumed reliable. See United States v. Elmore, 482 F.3d 172,
180 (2d Cir. 2007) (“Reasonable suspicion may be based upon information from a confidential
informant so long as the tip bears sufficient ‘indicia of reliability.’ . . . The veracity of identified
private citizen informants (as opposed to paid or professional criminal informants) is generally
presumed in the absence of special circumstances suggesting that they should not be trusted.”)
(citations omitted); see also Fabrikant v. French, 691 F.3d 193, 216 (2d Cir. 2012) (“A law
enforcement official has probable cause to arrest if he received his information from some person,
normally the putative victim or eyewitness, unless the circumstances raise doubt as to the person’s
veracity.”) (citations omitted). Indeed, the evidence here, which Wade has not challenged, shows
that Santos at some point identified herself to PSC security personnel as an employee at the Kay
Jewelers store when they arrived to interview her, and made statements indicating that she had
personal knowledge that someone matching Wade’s description had been involved in a previous
attempted credit card fraud at the store. (See ECF No. 97-5, Santos Dep. Tr. 40:5-40:7 (“He had
been there before with the credit cards, so please just stand by just in case.”), 40:23-25 (“[Security]
came inside [Kay Jewelers after the call]. I remember that.”), 48:3-6 (“I told [security] there was
a gentleman staring in front of our store and he fit the description of someone that had been there
originally . . . .”); see also ECF No. 97-7, Davis Dep. Tr. 16:1-14.) This in-person account bolsters
the reliability of Santos’ initial telephone report. See also United States v. Rollins, 522 F.2d 160,
29
164 (2d Cir. 1975) (“Specific allegations of reliability or past reliable contact are not required
when the informant in question was an eyewitness to the crime.”). Wade’s argument that “Davis
and Vieweg [wrongly] adopted the false statement Kay Jewelers employees made to them, without
questioning” is not only unsupported by the evidence, but also undercut by his own admission that
“mall security responded appropriately to the report from the Kay Jewelers employees.” (See ECF
No. 102 at 26–27; Def.’s L.R. 56(a)1 Stmt. ¶ 9; Pl.’s 56(a)2 Stmt. ¶ 9.) The undisputed evidence
shows that Vieweg and Davis had obtained an apparently reliable report that a crime either had or
was about to be committed, and thus had “reasonable suspicion” to approach Wade and investigate
further.
Courts in this district have regularly granted summary judgment on false imprisonment
claims where a police officer had “reasonable suspicion” to make an investigative stop. See GalanBlair, 2010 WL 3034303, at *3 (concluding on summary judgment that officer had reasonable
suspicion to make investigative stop where he received a call from a store about an individual
attempting to falsely cash a check, the store owner and employee accused the plaintiff of the same
crime and showed the officer a copy of the plaintiff’s ID card, and the plaintiff could not produce
ID on request); Chance, 2004 WL 2009282, at *4 (granting summary judgment on false arrest
claim where police officer had reasonable suspicion to question suspect about criminal trespass
based on witness’ police report, previous warning to potential suspect, and suspect’s violent
background); Valdez v. City of E. Hartford, 26 F. Supp. 2d 376, 381 (D. Conn. 1998) (granting
summary judgment where officers had reasonable suspicion plaintiff had committed a bank
robbery because “[p]laintiff’s vehicle was distinctly similar to a vehicle owned by a known black
male with an outstanding warrant who had recently been observed in the area . . . .”). Wade has
put forward no reason why that defense should not also protect mall security from false
30
imprisonment liability where the evidence shows they acted on identical information and had no
reason to disbelieve Santos’ report. Accordingly, mall security’s reasonable suspicion that Wade
had committed credit card fraud justified a Terry stop for further investigation and likewise
protects them from liability on Wade’s false imprisonment claim.
Nor was any such stop so intrusive as to ripen into a de facto arrest. Wade admits that he
was not arrested. (ECF No. 93-1, Pl.’s L.R. 56(a)2 Stmt. for Sterling’s Mot. ¶ 63.) And the facts
support this admission. Once the stop was effected, there is no evidence that Officer Decker,
Davis, or Vieweg used force on Wade. Officer Decker was the only police officer involved; it is
undisputed that Davis and Vieweg stood several feet away while Decker spoke briefly with Wade
and checked Wade’s identification with Manchester police dispatch. (Def.’s L.R. 56(a)1 Stmt. ¶¶
3–6; Pl.’s 56(a)2 Stmt. ¶¶ 3–6.) The parties’ Local Rule statements do not address how long any
stop lasted, but their briefs indicate that it was between 12 and 14 minutes. (ECF No. 97-1 at 8
(“[T]welve minute interaction with MPD Decker.”), ECF No. 102 at 5-7 (citing evidence that
Officer Decker arrived on the scene at 12:19 P.M. and returned Wade’s license to him a “minute
or two” before 12:33 P.M).) There is no evidence that handcuffs were used or that Wade was
believed to be armed. (See, e.g., Def.’s L.R. 56(a)1 Stmt. ¶ 7 (citing ECF No. 97-4, Decker Dep.
Tr. 21:9 (“[N]ever touched him, never arrested him.”), 52:12-17 (same)).) The only evidence
Wade raises here that his freedom of movement was restrained at all is (1) his own testimony that
Davis first stopped him and pulled him aside, (2) his own testimony that Davis, Vieweg, and
Officer Decker surrounded him during the stop, and (3) his own testimony that he decided to walk
with Officer Decker to Kay Jewelers because he felt that he had no choice. (See Pl.’s L.R. 56(a)2
Stmt. ¶ 7; ECF No. 102 at 18–19 (raising evidence on being surrounded in his brief).) Even
crediting that evidence and viewing it in the light most favorable to Wade, I find that it still presents
31
circumstances far less extreme than those which courts have treated as a permissible Terry stop.
See United States v. Vargas, 369 F.3d 98, 102 (2d Cir. 2004) (concluding that where officers
initially approached a potentially armed suspect in a high-crime area, suspect fled, and officers
intercepted and handcuffed him before finding a firearm, “the force was reasonable under the
circumstances and the stop did not become a full arrest until after the officers discovered defendant
was carrying a firearm”); Chance, 2004 WL 2009282, at *4 (concluding on summary judgment
that officer’s questioning of potential suspect in an interview room for twenty minutes after
individual voluntarily arrived at police station was an investigative stop, not arrest); Valdez, 26 F.
Supp. 2d at 382–83 (concluding that six-minute Terry stop was not excessively intrusive where
officers, believing plaintiff to be armed, drew their weapons and handcuffed plaintiff, releasing
him only after determining his identity and searching for weapons). No evidence here supports a
conclusion that Wade’s interaction with Officer Decker or mall security ripened into a de facto
arrest. See Galan-Blair, 2010 WL 3034303, at *4 (concluding on summary judgment that the
“amount of force used, the absence of any physical contact or handcuffs, and duration of the stop
are consistent with a valid investigatory stop and not a formal arrest,” because the officer “did not
place the plaintiff in handcuffs[,] . . . [or] draw his firearm. . .[,] only one or two officers were
involved in the actual stop,” the officer did not have “any physical contact with [plaintiff] during
the stop, which lasted for no more than twenty-five minutes” and “[d]uring the stop, [officer]
investigated the plaintiff’s claims and freed her upon verifying that information.”).
Wade’s reliance on Palmer v. Dots, LLC, No. HHDCV116020710S, 2014 WL 4494536,
at *1 (Conn. Super. Ct. Aug. 4, 2014), is unavailing. (ECF No. 102 at 25–26.) Wade chiefly relies
on the Connecticut Superior Court’s determination that summary judgment on a false
imprisonment claim under Terry v. Ohio was not warranted because the police officers had not
32
sufficiently demonstrated that “plaintiff was acting in a manner which could rise to the officers’
belief that their safety or that of others was in any danger, that the plaintiff was attempting to flee
the store, or that the plaintiff had a weapon on her person.” Palmer, 2014 WL 4494536, at *8.
Palmer involved not only an investigatory “stop” of a larceny suspect but also a frisk of her person
and a search of her handbag. See id. at *1. The stop and the frisk are governed by separate
standards under Terry. See Elmore, 482 F.3d at 178 (“[P]olice may briefly detain an individual
for questioning if they have a reasonable suspicion that criminal activity is afoot, and may frisk
him if they reasonably believe he is armed and dangerous.”) (emphasis added). Because no frisk
or search was involved here and the mall security personnel and Officer Decker had reasonable
suspicion to believe that a crime had been committed, they were authorized to stop Wade for
questioning notwithstanding the fact that Wade did not flee and they did not suspect him of being
armed.13
Because mall security and Officer Decker had reasonable suspicion to stop Wade, I would
grant summary judgment to GGP on Wade’s false imprisonment claim.
4.
Negligent Infliction of Emotional Distress
To prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove:
“(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional
distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough
that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the
13
In State v. Whitfield, 26 Conn. App. 103 (1991), which GGP cites, the parties did not
dispute that a police officer had a reasonable suspicion that justified briefly detaining the
defendant. Id. at 113. Nonetheless, the Appellate Court recognized that the officer responding to
a mall disturbance who received descriptions of the individuals responsible had reasonable
suspicion to stop the defendant to examine an air rifle in his possession and determine if it was
nonlethal and legally purchased. Id. at 110–111. This type of limited stop is all the evidence
shows here.
33
plaintiff’s distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003). Thus, “[t]he plaintiff
must prove that the defendant should have realized that its conduct involved an unreasonable risk
of causing emotional distress and that that distress, if it were caused, might result in illness or
bodily harm.” Davis v. Davis, 112 Conn. App. 56, 68 (2009) (quoting McNamara v. Tournament
Players Club of Connecticut, Inc., 270 Conn. 179, 197 (2004)). Wade argues that summary
judgment is not appropriate because Davis and Vieweg’s conduct was “unreasonable” and, by
adopting Santos’ and Anes’ “false statement without questioning its veracity,” they should “have
realized that their conduct created an unreasonable risk of causing emotional distress for Wade.”
(ECF No. 102 at 32.) I disagree, because the undisputed evidence shows that mall security acted
reasonably, and so their conduct did not create an unreasonable risk of emotional distress.
As discussed at length above, the undisputed evidence shows that Vieweg and Davis acted
appropriately. (As noted earlier, the parties point to no evidence in the record regarding specific
conduct by Crosby.) Santos called mall security to report there was a gentleman outside Kay
Jewelers who had previously been in Kay Jewelers about week prior with credit cards and that the
Kay Jewelers employees thought he might do a “grab-and-run.” (Def.’s L.R. 56(a)1 Stmt. ¶ 1;
Pl.’s L.R. 56(a)2 Stmt. ¶ 1.) Though Wade charges that “Davis and Vieweg adopted Santos’ and
Anes’ false statement without questioning its veracity, in reckless disregard of whether the
statement was false,” (ECF No. 102 at 32), as already noted, they had no reason to question the
report’s veracity and, in fact the unchallenged evidence shows that they took steps to confirm it by
reporting to the Kay Jewelers store in person after receiving the call and interviewing Santos, the
caller. (Def.’s L.R. 56(a)1 Stmt. ¶ 2; Pl.’s L.R. 56(a)2 Stmt. ¶ 2; ECF No. 97-5, Santos Dep. Tr.
40:23–41:21, 48:3-7; ECF No. 97-7, Davis Dep. Tr. 16:1-14.) Accordingly, regardless of whether
Vieweg assisted Officer Decker to stop Wade by identifying him or Davis independently stopped
34
Wade, Vieweg and Davis acted reasonably in stopping Wade to allow a law enforcement officer,
Officer Decker, to confirm the situation and Wade’s identity.
Even if Davis and Vieweg
“surround[ed] Wade,” as he claims in his brief (ECF No. 102 at 32), such conduct would still be
reasonable as the undisputed evidence shows that Vieweg and Davis stood back several feet from
Officer Decker and Wade while Officer Decker checked Wade’s identification. (Def.’s L.R.
56(a)1 Stmt. ¶ 6; Pl.’s 56(a)2 Stmt. ¶ 6 (admitting that Davis and Vieweg “stood several feet away
while MPD Decker spoke briefly with Plaintiff and checked Plaintiff’s identification with
Manchester police dispatch”); ECF No. 97-8, Vieweg Dep. Tr. 61:10-11 (“[Davis and Vieweg]
were behind Decker about five to eight feet.”) (cited in ECF No. 102 at 32); compare ECF No. 972, Wade (May 2017) Dep. Tr. 40:25–41:4 (“The police, the security officer on his bike beside the
police, and the other lady, she beside me on this side. And Mr. Decker in front of me, and the other,
the security officer on the little thing that he ride was on there.”) (cited in ECF No. 102 at 18).) It
is hard to see what Vieweg or Davis could have done more reasonably while still carrying out their
duties promptly to investigate reports of criminal activity.
The undisputed evidence does not support any inference that Davis, Vieweg, or any other
PSC security guard should have realized that their conduct involved an unreasonable risk of
causing emotional distress. Accordingly, even if the PSC personnel were GGP’s agents, summary
judgment would nonetheless be warranted on Wade’s claim for negligent infliction of emotional
distress against GGP. See McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn.
179, 197 (2004) (affirming grant of summary judgment on negligent infliction of emotional
distress claim where there was “no basis for a rational inference” that issuing a letter rejecting
plaintiff’s application to a golf club rose to conduct involving an unreasonable risk of causing
emotional distress that might result in illness or bodily harm); Bank of New York Mellon v. Worth,
35
No. 3:13-CV-1489 (MPS), 2016 WL 1048742, at *11 (D. Conn. Mar. 14, 2016) (granting summary
judgment on negligent infliction of emotional distress claim where there was no evidence in the
record that bank’s properly-brought foreclosure action and its agents’ inspection of the property
“created an unreasonable risk of causing [counterclaim plaintiff] emotional distress,” even if she
experienced emotional distress because of the loss of her home).
5.
Negligent Supervision
To recover on a negligent supervision claim under Connecticut law, “plaintiff must plead
and prove that she suffered an injury due to the defendant’s failure to supervise an employee whom
the defendant had [a] duty to supervise.” Brooks v. Sweeney, 299 Conn. 196, 209 n.12 (2010)
(citing Roberts v. Circuit–Wise, Inc., 142 F. Supp. 2d 211, 214 (D. Conn. 2001)). The injury on a
negligent supervision claim must be an injury in tort. See Deguzman v. Kramer, No. 3-04-CV2064 (JCH), 2005 WL 2030447, at *2 (D. Conn. Aug. 23, 2005) (“While no Connecticut case
appears to spell out the elements of a claim for negligent supervision, it appears that such a claim
must allege an injury in tort.”); Maggipinto v. Ulbrich Stainless Steels & Special Metals, Inc., No.
CV166009606S, 2017 WL 2111405, at *2 (Conn. Super. Ct. Apr. 20, 2017) (recognizing same).
Even assuming that Davis, Crosby, and Vieweg were GGP’s employees, I would nonetheless grant
summary judgment on Wade’s negligent supervision claim against GGP because summary
judgment is appropriate on all other tort claims based on the conduct of the supposed employees—
Davis, Vieweg, and Crosby. See Deguzman, 2005 WL 2030447, at *2 (granting motion to dismiss
on negligent supervision claim where no other tort claims were alleged).
B.
PSC’s Motion for Summary Judgment
Because the Court has granted GGP’s motion for summary judgment in its favor, PSC’s
motion seeking summary judgment in GGP’s favor is DENIED as moot, as it seeks the same relief.
36
(ECF No. 95.) This does not end the third-party practice, however, due to GGP’s third-party
complaint. (ECF No. 57.) Although GGP’s common law and contractual indemnification claims
against PSC are largely dependent on GGP’s ultimate liability to Wade, GGP also seeks
indemnification for any attorney’s fees and costs incurred “as a result of” the plaintiff’s claim and
the underlying allegations. (ECF No. 57 at ¶¶ 23, 35.) Accordingly, GGP shall file within 21 days
a short notice on the docket indicating what relief, if any, it wishes to pursue in light of this ruling.
The Court may then direct PSC to respond. If GGP indicates that it does not wish to continue
pursuing any relief on its third-party complaint or does not respond by the deadline, the Court will
dismiss the third-party complaint.
37
IV.
Conclusion
For the foregoing reasons, GGP’s motion for summary judgment is GRANTED (ECF No.
97), and PSC’s motion for summary judgment is DENIED as moot (ECF No. 95). GGP shall file
on the docket within 21 days a short notice on what relief in its third-party complaint (ECF No.
57) it wishes to pursue in light of this ruling. If GGP indicates that it does not wish to continue
pursuing any relief on its third-party complaint or does not respond by the deadline, the Court will
dismiss the third-party complaint.
IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
March 27, 2019
38
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