Taylor et al v. DLI Properties, L.L.C, d/b/a FORD FIELD et al

Filing 33

OPINION and ORDER Granting In Part and Denying In Part Defendants' 21 MOTION for Partial Summary Judgment and Denying Plaintiffs' 23 MOTION for Partial Summary Judgment. (Briefs due by 7/21/2017) Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Melissa Taylor and Douglas St.
Pierre,
Case No. 15-cv-13777
Plaintiffs,
Judith E. Levy
United States District Judge

v.
DLI Properties, L.L.C., d/b/a Ford
Field, S.A.F.E. Management, LLC,
Donna Farmer, Sabrina Wiggins,

Mag. Judge David R. Grand

Defendants.
________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT [21] AND DENYING PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT [23]
This is a personal injury case arising out of an interaction on
October 27, 2013, at Ford Field in Detroit, Michigan, during a football
game. Defendants move for partial summary judgment on plaintiffs’
negligence and negligence-related claims, negligent infliction of
emotional distress (“NIED”) claim, premises liability, and disability
discrimination claims. (Dkt. 21.) Plaintiffs move for partial summary
judgment on their disability discrimination claims and their assault

and battery claim.

(Dkt. 23.)

For the reasons set forth below,

defendants’ motion is granted in part and plaintiffs’ motion is denied.
I.

Background

Plaintiffs Melissa Taylor and Douglas St. Pierre, who were
engaged but not married at the time, attended a football game at Ford
Field in Detroit, Michigan on October 27, 2013. A few weeks before
attending the game, St. Pierre had open heart surgery. Defendant DLI
Properties is the company that manages Ford Field; it contracted with
defendant S.A.F.E. Management, LLC to provide personnel for Ford
Field, including guest services and security. Defendants Donna Farmer
and Sabrina Wiggins are employees of S.A.F.E. Management who were
working at Ford Field on October 27, 2013. Farmer and Wiggins were
Courtesy Team members whose job was to assist patrons and monitor
the area or areas to which they were assigned.
Near halftime of the football game, St. Pierre needed to use the
bathroom.

Plaintiffs allege that they found a family restroom, and

attempted to use it together, so that Taylor could assist St. Pierre,
whom she claims needed her help as a result of the surgery. They state
that when they attempted to enter the restroom together, Farmer was
2

stationed nearby and told them they could not enter because the
restroom was for “families.” (Dkt. 1 at 6.) Plaintiffs state they informed
Farmer of St. Pierre’s medical condition, after which Farmer and
Wiggins used physical force on Taylor to prevent her from entering the
restroom.
Defendants argue that Farmer was not made aware of St. Pierre’s
medical condition, and did not initiate the altercation with Taylor.
(Dkt. 21 at 14.)

Farmer perceived Taylor to be intoxicated and

aggressive, and states that she did not know St. Pierre required
assistance. (Id.) Farmer alleges that Taylor grabbed her shirt collar,
and she attempted to free herself. (Id. at 15.) Wiggins denies that she
physically assaulted Taylor, and alleges that Taylor attacked her with a
beer bottle and called her a “black bitch.” (Id. at 16.) Wiggins also
alleges that Taylor ran away from her after attacking her, and entered
the stands of Ford Field, prompting Wiggins to attempt to remove her.
(Id.) The police eventually escorted Taylor off of the premises. (Id.)
On October 26, 2015, plaintiffs filed suit, asserting nine counts: 1)
negligence; 2) assault and battery against Farmer and Wiggins; 3)
intentional infliction of emotional distress; 4) NIED; 5) negligent hiring;
3

6) negligent training and supervision; 7) premises liability; 8) violation
of Michigan’s Persons With Disabilities Civil Rights Act (“PWDCRA”);
and 9) violation of Title III of the Americans with Disabilities Act
(“ADA”). (Dkt. 1.) On March 28, 2017, defendants filed a motion for
partial summary judgment, seeking dismissal of the negligence,
negligent hiring, negligent training and supervision, NIED, premises
liability, PWDCRA (as to Wiggins), and ADA claims. (Dkt. 21.) That
same day, plaintiffs filed a motion for partial summary judgment,
seeking judgment in their favor on their assault and battery, PWDCRA,
and ADA claims. (Dkt. 23.) The motions are fully briefed, and oral
argument is not required. E.D. Mich. Local R. 7.1(f)(2).
II.

Legal Standard

Summary judgment is proper where “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
4

in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III. Analysis
A. Negligence Claims
Defendants seek summary judgment as to each of plaintiffs’
negligence-related claims.

First, they argue, the negligence claims

against Farmer and Wiggins are restatements of plaintiffs’ assault and
battery, PWDCRA, and ADA claims. Second, they argue the negligence
claims

against

DLI

Properties

and

S.A.F.E.

Management

are

restatements of the more specific negligent hiring and negligent
training and supervision claims. Third, they argue the negligent hiring
and negligent training and supervision claims are not actionable
because if Wiggins and Farmer did commit the acts of which they were
accused, they were neither acting within the scope of their employment,
nor did DLI Properties and S.A.F.E. Management know or should have
known of any propensity either individual had to assault patrons.
1. Negligence (Count I)

5

On its face, plaintiffs’ negligence claim asserts that Wiggins and
Farmer acted negligently by committing assault and battery on Taylor,
and by denying St. Pierre access to the bathroom. (Dkt. 1 at 5-7.) In
Michigan, “[t]here exists no tort of negligent assault and battery.”
Allstate Ins. Co. v. Clarke, Nos. 248934, 249398, 2007 WL 2710821, at
*3 (Mich. Ct. App. Sept. 18, 2007) (citing Sudul v. City of Hamtramck,
221 Mich. App. 455, 460-61 (1997)). Likewise, the Court can find no
support for the proposition that “negligent” violation of the PWDCRA
and ADA constitutes a claim separate from the underlying violations
themselves.
Plaintiffs respond that they are permitted to assert different
theories of liability, and that the negligence claims refer only to “a
verbal argument with Plaintiffs in public in which they denied them the
right to use the restroom.” (Dkt. 29 at 15.) Regardless of whether
plaintiffs may assert different theories of liability, they may not convert
a claim for intentional violation of a statutory duty, such as violation of
the PWDCRA or ADA, into a claim for negligence, particularly where
they can identify no duty other than the duty already embodied in the

6

statute.

Accordingly, summary judgment is warranted as to the

negligence claims asserted against Farmer and Wiggins.
Next, defendants argue that the general negligence claims against
DLI Properties and S.A.F.E. Management are duplicative of the more
specific negligent hiring and negligent training and supervision claims.
In response to this argument, plaintiffs extensively argue the grounds
for their more specific negligent hiring, training, and supervision
claims.

(Id. at 15-21.)

Because the general negligence claim is

duplicative of the more specific claims, the general negligence claim is
dismissed.
2. Negligent Hiring, Training, and Supervision
(Counts V and VI)
The record evidence demonstrates that Wiggins and Farmer were
employees of S.A.F.E. Management alone, and not DLI Properties.
Wiggins stated that she was employed by S.A.F.E. Management. (Dkt.
21-5 at 4.) Farmer also stated that the “entity [she] actually work[ed]
for” was “S.A.F.E. Management.”

(Dkt. 21-4 at 5.)

In response,

plaintiffs cite a portion of the deposition transcript of Kathy Ruehle,
whom plaintiffs claim was Wiggins and Farmer’s manager. (Dkt. 29 at
19.) Unfortunately, plaintiffs neglected to provide the relevant portion
7

of the deposition, and cite to pages that do not contain the relevant
testimony.
Regardless, plaintiffs point to Ruehle answering a question about
“the scope of [Wiggins and Farmer’s] employment with S.A.F.E.” (Id.)
Plaintiffs have provided no evidence that DLI Properties employed
Wiggins and Farmer. Accordingly, summary judgment is warranted as
to DLI Properties on plaintiffs’ negligent hiring, training, and
supervision claims, as DLI Properties did not hire, train, or supervise
Wiggins and Farmer. See also Campbell v. Kovich, 273 Mich. App. 227,
233-34 (2006) (holding that a premises owner is generally not liable for
injuries that a contractor negligently causes).
“Michigan courts have recognized a cause of action for negligent
hiring where an employee commits a foreseeable act of physical
violence.” Vennittilli v. Primerica, Inc., 943 F. Supp. 793, 797 (E.D.
Mich. 1996) (citing Bradley v. Stevens, 329 Mich. 556 (1951)).

“An

employer is generally liable for the torts its employees commit within
the scope of their employment. It follows that an employer is not liable
for the torts committed by an employee when those torts are beyond the
scope of the employer’s business.” Hamed v. Wayne Cty., 490 Mich. 1,
8

10-11 (2011) (internal quote marks and citations omitted). “Although
an act may be contrary to an employer’s instructions, liability will
nonetheless attach if the employee accomplished the act in furtherance,
or the interest, of the employer’s business.” Id. at 11. The negligent
training, hiring, and supervision will be analyzed through the lens of
this respondeat superior liability.
Defendants argue that both Wiggins and Farmer were trained not
to use physical force against patrons, and that any use of physical force
was not within the scope of their employment or for the benefit of their
employer.

Plaintiffs respond that DLI Properties, not S.A.F.E.

Management, is liable for Wiggins and Farmer’s alleged actions.
Although this would seem to effectively concede defendants’ point
regarding S.A.F.E. Management’s liability, the Court will assume that
this is unclear drafting, rather than a concession as to liability.
Defendants argue that the alleged assault and battery was neither
within the scope of Wiggins and Farmer’s employment, nor for the
benefit of their employer. They cite Burch v. A & G Assocs., Inc., 122
Mich. App. 798 (1983) and Martin v. Jones, 302 Mich. 355 (1942) as
cases supporting the proposition that assault and battery by Wiggins
9

and Farmer could not have been within the scope of S.A.F.E.
Management’s business, or for its benefit. However, Burch concerned a
taxicab driver who robbed and assaulted a passenger after the
passenger had paid and left the vehicle, at which point the taxicab
driver was no longer performing his job of transporting a passenger.
122 Mich. App. at 804-06.

Martin concerned an employee at an oil

station who shot a customer following an argument unrelated to and
separate from his job duties.

203 Mich. at 356.

In both cases, no

credible argument could be made that the employee was acting in the
employer’s interest.
“The purpose of the service rendered by the employee, and not the
method of performance, is the test of whether or not the servant is
within the scope of [her] employment.” Renda v. Int’l Union, United
Auto., Aircraft and Agr. Implement Workers of Am., 366 Mich. 58, 95
(1962) (citing Loux v. Harris, 226 Mich. 315, 321 (1924)). Defendants’
argument is that because Wiggins and Farmer were not permitted to
take the actions alleged, they could not have been acting within the
scope of their employment or for the benefit of their employer.
However, in the light most favorable to plaintiffs, Wiggins and Farmer
10

were acting squarely within the scope of their employment as Courtesy
Team members whose job was to assist patrons at Ford Field and
address disturbances as they arose.
Defendants’ reading of “scope of employment” is too narrow,
allowing an employer to escape liability so long as an employee was not
instructed to do their job in a way that would give rise to liability in
tort. That is not the rule. A genuine issue of material fact exists as to
whether Farmer and Wiggins were acting within the scope of their
authority, and whether they committed tortious acts.

Accordingly,

summary judgment as to the negligent hiring, training, and supervision
claims against S.A.F.E. Management must be denied.
B. Negligent Infliction of Emotional Distress (Count
IV)
[T]he elements of negligent infliction of emotional distress
are: (1) serious injury threatened or inflicted on a person, not
the plaintiff, of a nature to cause severe mental disturbance
to the plaintiff, (2) shock by the plaintiff from witnessing the
event that results in the plaintiff's actual physical harm, (3)
close relationship between the plaintiff and the injured
person (parent, child, husband, or wife), and (4) presence of
the plaintiff at the location of the accident at the time the
accident occurred or, if not presence, at least shock ‘fairly
contemporaneous’ with the accident.

11

Hesse v. Ashland Oil, 466 Mich. 21, 34 (2002) (citing Wargelin v. Sisters
of Mercy Health Corp., 149 Mich. App. 75, 81 (1986)). At the time of the
incident, plaintiffs were not married. Defendants argue that this claim
must be dismissed because plaintiffs did not have the relationship
required to assert an NIED claim.

Plaintiffs fail to address this

argument, and instead argue that defendants committed intentional
infliction of emotional distress, which is a separate claim for which
defendants do not seek summary judgment.
Because plaintiffs were unmarried at the time of the incident at
issue in this case, the specific requirements of an NIED claim under
Michigan law have not been met.

See Nugent v. Bauermeister, 195

Mich. App. 158, 160-61 (1992) (holding that the familial limitations set
forth above “have consistently been applied by this Court,” declining to
expand the class of persons who may recover under an IIED claim, and
collecting cases). This claim must be dismissed.
C. Premises Liability (Count VII)
Plaintiffs claim that the presence of “negligently hired, negligently
trained, and negligently supervised security persons being on the
Defendants’ premises” constituted a “hazardous condition” giving rise to
12

premises liability. (Dkt. 1 at 18.) Defendants seek summary judgment
on this claim, arguing that premises liability exists only for injuries
arising out of a condition on the land, rather than activity or conduct
that takes place on the land. James v. Alberts, 464 Mich. 12, 18-19
(2001); Laier v. Kitchen, 266 Mich. App. 482, 484 (2005). Defendants
are correct, and plaintiffs do not dispute their argument.
Premises liability is limited to a condition on the land and does
not cover negligent or intentional conduct committed on that land. See,
e.g., Hall v. IKEA Prop. Inc., 171 F. Supp. 3d 634, 640 (2016) (holding
that a premises liability claim arose from conditions on the land, and an
ordinary negligence claim arose from conduct on the land). Accordingly,
plaintiffs’ premises liability claim, which alleges only conduct and no
condition of the land, must be dismissed.
D. PWDCRA – Wiggins (Count VIII)
Plaintiffs claim that Wiggins violated St. Pierre’s rights under the
PWDCRA by denying him use of the family restroom. Defendants move
for summary judgment on this claim, based on plaintiffs’ admission
during deposition that Wiggins did not participate in any denial of St.
Pierre’s access to the restroom.
13

Taylor testified in her deposition that the first time she
encountered Wiggins was after she had left the bathroom area and
rounded a corner, and Wiggins allegedly tackled her from behind. (Dkt.
21-2 at 17.) St. Pierre testified that he never saw Wiggins on the date
of the incident. (Dkt. 21-3 at 19.) Wiggins testified that she talked to
Taylor away from the bathroom at some time after St. Pierre had
allegedly been denied access to the bathroom, and told Taylor that two
people could not go in the family bathroom at one time. (Dkt. 21-5 at
11.)

At the time Wiggins talked to Taylor, Wiggins indicated that

Taylor “did not want to go back to the family rest room” and that after
their conversation, Taylor ran into a seating section inside the stadium.
(Id. at 11-13.)
Even in the light most favorable to plaintiffs, the evidence does
not show that Wiggins played any role in denying St. Pierre “equal
opportunities to . . . utiliz[e] . . . public accommodations, services, and
facilities.”
(1996).

Stevens v. Inland Waters, Inc., 220 Mich. App. 212, 216

Instead, it shows that Wiggins interacted with Taylor away

from the bathroom, and, at most, informed Taylor of her belief
regarding how many people were permitted inside the family bathroom
14

at one time.

Wiggins is not alleged to have performed any action that

would have denied St. Pierre access to the bathroom, and so summary
judgment must be granted to her on plaintiffs’ PWDCRA claim.
E. ADA (Count IX)
Plaintiffs assert a claim under the ADA, alleging denial of access
to a public accommodation. Their complaint seeks “statutory attorney
fees” and “whatever amount in excess of Seventy-Five Thousand
($75,000.00) Dollars is found to be fair and just, plus interest, costs and
attorney fees.”

(Dkt. 1 at 25-26.)

Defendants move for summary

judgment, arguing that a plaintiff cannot seek monetary damages for a
claim under Title III of the ADA.
Title III of the ADA governs claims of discrimination regarding
the use of public accommodations.

42 U.S.C. § 12181 et seq.

Only

declaratory and injunctive relief are available in civil actions brought by
private individuals. 28 C.F.R. § 36.501. Damages are not available in
Title III suits brought by private individuals.

Southwell v. Summit

View of Farragut, LLC, 494 Fed. Appx. 508, 512 (6th Cir. 2012) (citing
Smith v. Wal-Mart Stores, Inc., 1167 F.3d 286, 293 (6th Cir. 1999)).
Plaintiffs argue in the caption to the section of their response brief that
15

“this lawsuit seeks to prevent Defendants from engaging in any further
civil

and

equal

rights

violations

concerning

restroom

public

accommodations.” (Dkt. 29 at 24.) However, the complaint on its face
contains no request for declaratory or injunctive relief, and plaintiffs
have never sought leave to amend their complaint to seek such relief.
Plaintiffs also seem to argue that because attorney fees are
recoverable under the ADA, 42 U.S.C. § 12188, a suit can be maintained
seeking only attorney fees, even if no substantive relief can be obtained.
Not only does this completely upend the notion that attorney fees are
traditionally awarded only to prevailing parties, Buckhannon Bd. and
Care Home, Inc. v. West Virginia Dept. of Health and Human Res., 532
U.S. 598, 600 (2001), it is entirely unclear how and when an attorney
could recover fees by litigating a claim under which his clients could
never gain relief. Accordingly, plaintiffs’ ADA claim is dismissed.
F. PWDCRA - All Defendants (Count VIII)
Plaintiffs move for summary judgment on St. Pierre’s PWDCRA
claim, arguing that defendants admitted their liability during various
depositions. Defendants contend that genuine issues of material fact
exist regarding this claim.
16

To establish a prima facie case that he was denied a
reasonable accommodation, plaintiff must prove that (1) he
is disabled as defined under the PWDCRA, (2) defendants
knew of his disability or should reasonably be expected to
know of it, (3) an accommodation of his disability “may be
necessary” pursuant to M.C.L. § 37.1506a(1)(a) or (b) to
afford him an equal opportunity to use and enjoy the
premises and did not present an undue hardship on
defendants under M.C.L. § 37.1102(2), and (4) defendants
refused to make such an accommodation.
Bachman v. Swan Harbour Ass’n, 252 Mich. App. 400, 426 (2002). The
PWDCRA defines “disability” in the context of public accommodation as
“[a] determinable physical or mental characteristic of an individual,
which may result from disease, injury, congenital condition of birth, or
functional disorder, if the characteristic . . . is unrelated to the
individual’s ability to utilize and benefit from a place of public
accommodation or public service.” M.C.L. § 37.1103(d)(i), (d)(i)(B).
Plaintiffs argue that defendants have admitted St. Pierre’s
recovery from open heart surgery constitutes a disability, based on this
exchange with Ruehle:
Q: Are you familiar with the fact that the term disability, as
referenced in the Americans with Disability Act, is a broad
term in terms of what a disability is?
A: Correct.
17

Q: And you understand that it does not have to be a physical,
visual disability?
A: Yes.
Q: You understand that it could apply to someone who has
recently undergone some type of major surgery and is
limited in his ability to function in some type of way?
A: Yes.
Q: And you understand that type of person is supposed to be
provided access to facilities such as the use of a bathroom?
A: Yes.
(Dkt. 23-4 at 21.)
This exchange is not an admission that St. Pierre was disabled
within the meaning of the PWDCRA. The question asked of Ruehle was
whether she understood that the term disability could apply to someone
in St. Pierre’s position. She admitted (accurately) that under the ADA,
St. Pierre could be considered disabled – not that he was, and not that
he would also be considered disabled under the PWDCRA.
Also,

the

PWDCRA

contemplates

a

“physical

or

mental

characteristic of an individual,” and plaintiff’s counsel explicitly states
that he is not asking about a “physical, visual disability.” It is unclear
from this line of questioning whether St. Pierre is now contending he
had a physical or mental characteristic, what the physical or mental

18

characteristic was, and what relation the characteristic had to his
ability to use a public restroom.
St. Pierre makes no other argument and presents no other
evidence that he is disabled within the meaning of the PWDCRA.
Because St. Pierre has failed to establish his disability within the
meaning of the PWDCRA, summary judgment on this count must be
denied.
G. Assault and Battery (Count II)
Plaintiffs assert that Farmer and Wiggins committed assault and
battery as to Taylor, and that DLI Properties and S.A.F.E. Management
are vicariously liable for their employees’ actions.

Plaintiffs argue,

without differentiation, that all defendants committed assault and
battery as to Taylor.

However, they cite only Farmer’s deposition

testimony and Farmer’s actions in their motion for summary judgment,
leading the Court to infer that plaintiffs only move for summary
judgment as to the assault and battery claims asserted against Farmer.
(See Dkt. 23 at 17-19.)
Plaintiffs rely on People v. Awashra, Dkt. No. 282692, 2009 WL
1067560 (Mich. Ct. App. Apr. 21, 2009) (erroneously cited as People v.
19

Adib) in support of their argument that Farmer committed assault.
However, Awashra is a criminal case involving felonious assault, and is
inapplicable in a civil case. Awashra, 2009 WL 1067560, at *2. “To
recover civil damages for assault, plaintiff must show an intentional
unlawful offer of corporal injury to another person by force, or force
unlawfully directed toward the person of another, under circumstances
which create a well-founded apprehension of imminent contact, coupled
with

the

apparent

present

ability

to

accomplish

the

contact.” VanVorous v. Burmeister, 262 Mich. App. 467, 482-83 (2004).
Plaintiffs allege that Farmer put her arm out in front of Taylor to
prevent Taylor from entering the restroom, which constituted assault.1
The evidence presented are three exchanges from Farmer’s deposition
testimony in which she purportedly admitted sticking her arm out or
getting in front of Taylor.

The first exchange is as follows, with

plaintiff’s counsel questioning and Farmer answering:

In their motion for partial summary judgment, plaintiffs state that “Defendants
[sic] physical actions or gestures in threatening to prevent Plaintiffs’ movement is
an assault,” (Dkt. 23 at 18), which appears to be an allegation that both Taylor and
St. Pierre were assaulted. However, only Taylor has asserted a claim for assault
and battery, (Dkt. 1 at 9-10), and plaintiffs may not amend their complaint in a
motion for summary judgment. The Court will assess the assault and battery
claims only as to the plaintiff who has asserted them: Taylor.

1

20

Q: But in addition to asking her or telling her one at a time,
you got in her line of walking basically to prevent her from
entering?
A: Yes, because we have already had the conversation about
the bathroom.
(Dkt. 23-6 at 14.) However, immediately before that exchange, Farmer
states that she stood by the door as Taylor pushed past her:
Q: Did you put your arm out to stop Ms. [Taylor] from going
into the rest room?
A: No, I just kind of stood over by the door to let her know
that – everything happened so fast, that one at a time, that
Mr. Pierre is allowed to use the rest room, yes.
Q: So she proceeded to go into the rest room?
A: Very aggressively, yeah.
Q: And what did you do to prevent her from going in there?
A: I didn’t do anything. I just stood to the side to tell her one
at a time.
Q: So did she try to walk past you when you told her that?
A: Yes, she did.
Q: And when she tried to walk past you what did you do?
A: I didn’t do anything, she grabbed me.
Q: So she walked past you to use the rest room and then
grabbed you?
A: No, she didn’t walk past me, she attempted to walk past
me. I was right here by the bathroom door.
Q: So you were blocking her from using the rest room?
A: Yes, by asking her one at a time.
(Id.) In context, Farmer’s testimony is inconsistent with an allegation
of assault. In the light most favorable to Farmer as the non-moving
21

party, her testimony demonstrates that she stood by the door of the
bathroom to remind Taylor that only St. Pierre was allowed in, at which
point Taylor moved toward Farmer and grabbed her. Taylor states that
Farmer was the one who put her arm out, blocked Taylor from going
into the restroom, and then initiated physical contact. (Dkt. 23-2 at 15.)
At the very least, this creates a genuine issue of material fact between
the two versions of events.
The second exchange plaintiffs rely on regards Farmer’s
hypothetical rationale for putting her arm out in front on Taylor:
Q: But the purpose of putting it out there or putting your
arm out there would have been to prevent her from going in
while you were telling her one at a time?
A: Yes.
(Dkt. 23-6 at 15.) However, immediately before this exchange, Farmer
stated that she could not recall if she had put her arm in front of Taylor.
(Id.) In fact, Farmer repeatedly states that she could not recall if she
had put her arm up to stop Taylor. (See id. at 14.) It is also clear from
context that this exchange with Farmer did not regard her admission
that she put her arm up. It was instead an exploration of her motives

22

for putting her arm up, in the words of plaintiff’s counsel, “if [she] did
put it up.” (Id. at 15.)
The final exchange plaintiffs rely on is this one:
Q: You testified earlier, in fact, that at least per your
testimony that Ms. Taylor attempted to enter the rest room
with Mr. St. Pierre and that’s when you put your arm out or
got in the way or whatever?
A: Yes.
(Id. at 21.) Because of the manner in which this question was phrased,
the answer cannot serve as an admission of any act of assault.
Plaintiff’s counsel asks if Farmer “put her arm out or got in the way or
whatever.” Farmer responds in the affirmative, which means that she
either put her arm out, got in the way, or did “whatever,” which could
include any other action she may or may not have taken. Coupled with
her denials and inability to recall if she had put her arm out or gotten
in Taylor’s way, Farmer’s response to this completely open-ended
question cannot be evidence of her having committed an assault on
Taylor. Accordingly, summary judgment must be denied on Taylor’s
assault claim.
“To recover for battery, plaintiff must demonstrate a willful and
harmful or offensive touching of another person which results from an
23

act intended to cause such a contact.” VanVorous, 262 Mich. App. at
483 (2004). Plaintiffs argue that because Farmer intended to “put [her]
body and [her] arm out to block [Taylor] and prevent [Taylor] from
entering,” and physical contact resulted, summary judgment is
warranted on Taylor’s battery claim. (Dkt. 23 at 18-19.) However, as
set forth above, there are genuine issues of material fact as to whether
Farmer committed any act intended to cause contact with Taylor, and
whether it was Farmer or Taylor who committed the harmful or
offensive touching of the other person. Accordingly, summary judgment
must also be denied on Taylor’s battery claim.

H. Intentional Infliction of Emotional Distress (Count
III)
Fed. R. Civ. P. 56(f) permits the Court to grant summary
judgment even where it has not been moved for “[a]fter giving notice
and a reasonable time to respond.”

“In order to state a claim of

intentional infliction of emotional distress, a plaintiff must show (1)
extreme and outrageous conduct, (2) intent or recklessness, (3)
causation, and (4) severe emotional distress.”

Teadt v. Lutheran

Church Missouri Synod, 237 Mich. App. 567, 582 (1999). “Liability for
24

such a claim has been found only where the conduct complained of has
been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency and to be regarded as atrocious
and utterly intolerable in a civilized community.” Id. at 582-83.
Plaintiffs allege that “[d]efendants committed an intentional
infliction of emotional distress upon Plaintiff Melissa Taylor.” (Dkt. 1
at 11.) First, based on the facts as set forth above, any IIED claim
against DLI Properties or S.A.F.E. Management is actually a
restatement of plaintiffs’ negligent hiring, training, and supervision
claim. It is clear that summary judgment should be granted as to those
two defendants on this claim.

Second, the complaint fails to allege

which specific acts Wiggins and Farmer committed that rise to the level
of “extreme and outrageous conduct.” On review of the relevant case
law and the record established in this case, it is unclear how this claim
may be maintained against Wiggins or Farmer.
Accordingly, plaintiffs and defendants are required to submit
briefing, to be no longer than seven pages, addressing whether the
Court should grant summary judgment to defendants on Melissa
Taylor’s IIED claim. The briefing is due on or before July 28, 2017.
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IV.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Defendants’ motion for partial summary judgment (Dkt. 21) is
GRANTED IN PART on plaintiffs’ negligence (Count I), negligent
infliction of emotional distress (Count IV), premises liability (Count
VII), and ADA (Count IX) claims for all defendants, plaintiffs’ negligent
hiring, training, and supervision (Counts V, VI) claims against DLI
Properties, and plaintiffs’ PWDCRA claim (Dkt. VIII) for Wiggins, and
DENIED IN PART on plaintiffs’ negligent hiring, training, and
supervision (Counts V, VI) claims against S.A.F.E. Management;
Plaintiffs’ motion for partial summary judgment (Dkt. 23) is
DENIED;
The remaining claims in this case are Taylor’s assault and battery
(Count II) claim, Taylor’s IIED (Count III) claim, plaintiffs’ negligent
hiring, training, and supervision (Counts V, VI) claims against S.A.F.E.
Management, and St. Pierre’s PWDCRA (Count VIII) claim against
Farmer, DLI Properties, and S.A.F.E. Management; and

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The parties are ordered to submit briefing regarding a grant of
summary judgment on Melissa Taylor’s IIED claim, to be no longer
than seven pages, on or before July 21, 2017.
IT IS SO ORDERED.
Dated: July 14, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 14, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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