Reason v. Kathryn's Korner Thrift Shop

J-S29017-17
2017 Pa. Super. 266
DESIREE REASON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KATHRYN’S KORNER THRIFT SHOP,
DRUEDING CENTER, INC., HOLY
REDEEMER HEALTH SYSTEM, TAMIKA
THOMAS A/K/A TAMIKA RILEY AND
NADINE RILEY
No. 1866 EDA 2016
Appeal from the Judgment Entered May 25, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 140701113
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
OPINION BY SOLANO, J.: FILED AUGUST 17, 2017
Following the entry of judgment against defendant Tamika Thomas,1
Appellant Desiree Reason challenges the order granting summary judgment
in favor of the remaining defendants, Appellees Kathryn’s Korner Thrift
Shop, Drueding Center, Inc., Holy Redeemer Health System, and Nadine
Riley, with respect to an alleged assault that occurred while Reason was
shopping at the thrift shop. We affirm.
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*
Former Justice specially assigned to the Superior Court.
1
There is confusion in the record regarding the names of some of the
individuals involved in the matter at issue. The record refers to defendant
Nadine Riley’s daughter as “Tamika Thomas,” but Riley testified that her
daughter is named “Tamika Riley,” not “Tamika Thomas.” Nadine Riley Dep.
at 24-25. Nevertheless, to adhere to the complaint and thereby avoid
further confusion, we refer to the daughter as Tamika Thomas.
J-S29017-17
The incident that gives rise to this suit occurred on September 19,
2012, at the thrift shop’s location on North Lawrence Street in Philadelphia.
Trial Ct. Op. at 3. Those premises are owned by Drueding Center, which, in
turn, is owned by Holy Redeemer. Reason went to the thrift shop as a
business invitee, and she was a frequent customer of the shop.
Riley is the cashier at the thrift shop, and Riley’s daughter, Tamika
Thomas, was at the thrift shop at the time of the incident. Thomas was a
monthly visitor to the thrift shop, but was not a thrift shop employee.
Thomas has a history of mental illness, but there is no evidence in the
record that she has a history of violence. Riley Dep., 10/16/15, at 28-29.
Reason alleged that Thomas takes daily medication for her condition, but
that she failed to take her medication on the day of the incident and that
Riley knew of that lapse.
According to Reason, the incident occurred when she brought items to
Reilly’s check-out counter. She made some purchases and left other items
on the counter. Thomas, who was standing in front of the register at this
time, accused Reason of throwing socks at Reilly and punched Reason in the
face. Reason and Thomas left the store and began to fight outside. Trial Ct.
Op. at 3-4 (citations omitted).
Riley claims that she pushed a button in the store to summon help.
Riley says she believed that the button directly summoned the police, but
the button instead may have been wired to alert someone at the reception
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desk of Drueding, who then called another employee, Calvin Collins, to check
on the alert. See Calvin Collins Dep., 10/16/15, at 9-10.
About ten minutes after Reason and Thomas left the store, Riley
followed them outside and made a phone call on her cell phone. She claims
to have called the police. See Trial Ct. Op. at 8; Riley Dep. at 34.
Meanwhile, three men on bikes arrived on the scene and held Reason down
while Thomas punched her and Reason punched back. Trial Ct. Op. at 4.
Store employees stood outside and watched the fight but did not participate
in it. Collins then interceded and broke up the fight. Later, the police
arrived, and Reason brought them into the store. Id.; see Riley Dep. at 34.
On July 11, 2014, Reason initiated this action. As amended, her
complaint made claims against the Thrift Shop, Drueding, Holy Redeemer,
Riley, and Thomas for negligence, false imprisonment, and civil conspiracy;
she also sued all defendants except Riley for assault and battery, sued all
defendants except Thomas for concerted tortious conduct, and sued all
defendants except Riley and Thomas for negligent hiring and supervision.
Fourth Am. Compl., 2/2/15, at 7-19 ¶¶ 27-85.
On November 2, 2015, all of the defendants except Thomas moved for
summary judgment. They contended that they did not breach any duties
owed to Reason, did not cause her any physical harm or place her in fear of
harm, did not conspire to cause her harm or aid and abet anyone who
allegedly injured her, and did not negligently hire or supervise any
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employees. Appellees’ Mot. for Summ. J. at 4-32 (citing Counts I, III-VIII of
Fourth Am. Compl., 2/2/15, at 7-19 ¶¶ 27-29, 32-85); Mem. of Law in
Supp. of Appellees’ Mot. for Summ. J. at 5-14.2 On December 17, 2015,3
the trial court granted the motion for summary judgment, leaving Thomas as
the sole defendant in the action.
On January 8, 2016, the case against Thomas was listed for
arbitration. Thomas did not appear at the arbitration, and on April 14, 2016,
the arbitrators entered a report and award against Thomas and in favor of
Reason in the amount of $40,000.00. Report & Award of Arbitrators,
4/14/16, at 1. On May 25, 2016, Reason filed a praecipe to enter judgment
against Thomas in that amount.
On June 9, 2016, Reason filed a notice of appeal to this Court. In a
Rule 1925(b) statement, she challenged the trial court’s entry of summary
judgment in favor of the defendants other than Thomas. On December 16,
2016, the trial court filed a Rule 1925(a) opinion in which it expressed the
view that Reason had waived her right to appeal by failing to file her notice
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2
The movants also argued that there was no evidence to support an award
of punitive damages. Appellees’ Mot. for Summ. J. at 32-34 (citing each ad
damnum clause in Fourth Am. Compl., 2/2/15, at 7, 10-14, 16-17, 19);
Mem. of Law in Supp. of Appellees’ Mot. for Summ. J. at 14-15.
3
Although the order was dated December 17, 2015, it was not docketed
until December 23, 2015. The trial court and the parties use December 17
as the date of the order, and we therefore do the same.
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of appeal within 30 days of the court’s December 17, 2015 summary
judgment order. Reason now raises the following issues:
1. Did [Reason] file a timely Notice of Appeal when said Notice
was filed within thirty days after the final Order disposing of all
parties to this action?
2. Did the trial court err as a matter of law by granting
summary judgement and holding that [Reason’s] claims against
Kathryn’s Korner Thrift Shop, Drueding Center, Inc., Holy
Redeemer Health System and Nadine Riley, are without merit?
Appellant’s Brief at 3 (issues renumbered; suggested answers omitted).
Timeliness of Reason’s Appeal
In its opinion, the trial court stated that Reason’s appeal was untimely,
and that all of her issues therefore were waived, because the notice of
appeal was not filed within 30 days of the order granting summary
judgment. Trial Ct. Op. at 5. Reason contends that she filed a timely appeal
following entry of the judgment against Thomas, the final defendant in the
case. Appellant’s Brief at 11. She continues that “[t]he [trial c]ourt’s Order
of December 17, 2016 was not a final Order as it did not dispose of all
claims of all parties in accordance with Pa. R. A. P. 341(a)(1).” Id.4 Reason
is correct.
Pennsylvania Rule of Appellate Procedure 341(a)(1) states: “an
appeal may be taken as of right from any final order of a government unit or
trial court.” Pa.R.A.P. 341(b)(1) defines a “final order” as “any order that
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4
Appellees “agree that [Reason] timely filed the Notice of Appeal after the
entry of a final order in the underlying litigation.” Appellees’ Brief at 19.
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. . . disposes of all claims and of all parties.” The trial court granted
Appellees’ motion for summary judgment on December 17, 2015.
Subsequent to the granting of that motion, outstanding claims remained
pending against Thomas. Thus, the order granting summary judgment was
not a final order, because it did not dispose of all claims and of all parties.
See Pa.R.A.P. 341(a); Brickman Grp., Ltd. v. CGU Ins. Co., 829 A.2d
1160, 1163-65 (Pa. Super. 2003). The remaining claims against Thomas
were resolved upon entry of the judgment filed against Thomas on May 25,
2016. Hence, Reason could not properly file an appeal with this Court until
after May 25, 2016, and her notice of appeal filed on June 9, 2016, was
timely.
Summary Judgment
Entry of summary judgment is governed by Rule 1035.2 of the Rules
of Civil Procedure:
After the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the cause
of action or defense which could be established by
additional discovery or expert report, or
(2) if, after the completion of discovery relevant to
the motion, including the production of expert
reports, an adverse party who will bear the burden
of proof at trial has failed to produce evidence of
facts essential to the cause of action or defense
which in a jury trial would require the issues to be
submitted to a jury.
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Pa.R.C.P. 1035.2. In addition:
Our standard of review of an appeal from an order granting
summary judgment is well settled: Summary judgment may be
granted only in the clearest of cases where the record shows
that there are no genuine issues of material fact and also
demonstrates that the moving party is entitled to judgment as a
matter of law. Whether there is a genuine issue of material fact
is a question of law, and therefore our standard of review is de
novo and our scope of review is plenary. When reviewing a
grant of summary judgment, we must examine the record in a
light most favorable to the non-moving party.
Newell v. Montana West, Inc., 154 A.3d 819, 821-22 (Pa. Super. 2017)
(citations and internal quotation marks omitted).
Preliminarily, we note that Reason’s Fourth Amended Complaint made
claims of false imprisonment, civil conspiracy, assault, battery, concerted
tortious conduct, and negligent hiring and supervision against Appellees, but
Reason does not address any of these counts in her brief to this Court. She
makes arguments only about her other negligence claims. See Reason’s
Brief at 6-10, 12. Any challenges to the trial court’s summary judgment on
the claims of false imprisonment, civil conspiracy, assault, battery, concerted
tortious conduct, and negligent hiring and supervision are therefore waived.
See Signora v. Liberty Travel, Inc., 846 A.2d 145, 147 (Pa. Super. 2004)
(when appellant’s brief makes no argument in support of an issue, this Court
will not consider the merits of thereof); Moses Taylor Hosp. v. White, 799
A.2d 802, 804 (Pa. Super. 2002) (issues addressed elsewhere but not
argued in briefs are waived), appeal denied, 808 A.2d 572 (Pa. 2002);
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Butler v. Illes, 747 A.2d 943, 944 (Pa. Super. 2000) (“When issues are not
properly raised and developed in briefs, when briefs are wholly inadequate to
present specific issues for review, a court will not consider the merits
thereof”).
With respect to her remaining negligence claims, Reason argues that
the trial court “erred in entering summary judgment for [Appellees] as there
exist[] genuine issues of material fact regarding whether [Appellees’]
negligent conduct led to [Reason]’s injuries.” Appellant’s Brief at 6. Reason
adds:
[Reason] presents a prima facie case for negligence
against the [Appellees] for violating their duty to [Reason] and
genuine issues of material fact exist as to the [Appellees’]
response to the incident and the foreseeable nature of the
incident.
[Appellees] owed [Reason] the same duty owed to all
business invitees and whether their specific actions adequately
satisfied or breached this duty is an issue to be determined by a
jury. . . .
[Reason] further contends that there are several instances
where the actions, or non-actions, taken by [Appellees’]
employees, both prior to the incident and during the incident,
could permit a reasonable jury to infer that [Appellees] acted
negligently and failed in their duty to [Reason] and that said
failure is causally related to [Reason]’s resulting damages.
Id. at 7-9 (some formatting altered).
Under Pennsylvania law —
In order to hold a defendant liable for negligence, the plaintiff
must prove the following four elements: (1) a legally recognized
duty that the defendant conform to a standard of care; (2) the
defendant breached that duty; (3) causation between the
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conduct and the resulting injury; and (4) actual damage to the
plaintiff.
Newell, 154 A.3d at 822 (quoted citation omitted). Appellees contend that
Reason’s negligence claims fail to satisfy the first element, duty. In
response, Reason argues that Appellees owed her two legally recognized
duties: a duty to take precautions against the potential dangerous acts of
third parties like Thomas; and a duty to aid or otherwise to respond
adequately to the actual harms that were being committed against her by
Thomas. Appellant’s Brief at 7, 9-10. In other words, Reason contends that
Appellees had a duty to prevent injury from Thomas’ assault, and to come to
Reason’s rescue once the assault began. We address each of these theories
separately.
Duty to Protect against Acts of Third Persons
Reason seeks to hold Appellees responsible for injuries caused by
Thomas’ assault because they “failed in their duty and were negligent in
failing to remove unruly persons from the[ir] premises.” Appellant’s Brief at
10 (citing Fourth Am. Compl., 2/2/15, at 9 ¶¶ q, v). Reason continues that
“[t]he [Appellees] negligently allowed Ms. Thomas to loiter on the premises
and disregard[ed] what Riley admittedly knew about Thomas’ prior mental
health history and her knowledge that Ms. Thomas had failed to take her
medication on the day of the [in]cident.” Id. Reason further asserts that
“[t]he reasonable responsiveness to presently occurring conduct of third
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persons is clearly within the scope of duties imposed on possessors of land
under Section 344 of the Restatement of Torts, 2nd.” Id. at 8.5
“Generally, there is no duty to control the acts of a third party unless
the Defendant stands in some special relationship with either the person
whose conduct needs to be controlled or . . . with the intended victim of the
conduct, which gives the intended victim a right to protection.”
Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007) (citation and
internal quotation marks omitted). A “special relationship” exists between a
business and its invitee. Id. (citing T.A. v. Allen, 669 A.2d 360 (Pa. Super.
1995) (en banc), appeal denied, 676 A.2d 1201 (Pa. 1996); Restatement
(Second) of Torts § 314A(2)-(3) (1965)). In T.A., we explained:
[A]n invitee is described as follows:
(1) An invitee is either a public invitee or a business
visitor.
(2) A public invitee is a person who is invited to
enter or remain on land as a member of the public
for a purpose for which the land is held open to the
public.
(3) A business visitor is a person who is invited to
enter or remain on land for a purpose directly or
indirectly connected with the business dealings with
the possessor of the land.
Restatement (Second) of Torts § 332. Ott v. Unclaimed
Freight Co., 395 Pa.Super. 483, 488, 577 A.2d 894, 896
(1990).
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5
Reason does not challenge the trial court’s holding that Thomas was not an
employee or agent of the thrift shop. See Trial Ct. Op. at 10.
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T.A., 669 A.2d at 363. As Reason was invited to enter and to remain at
Kathryn’s Korner for the purpose of doing business with the thrift shop, she
was a business invitee and thus had a special relationship with Kathryn’s
Korner. For present purposes, we assume that relationship also extended to
Drueding and Holy Redeemer.
This Court examined the duty to protect business invitees from the
intentional or negligent acts of third parties in Truax v. Roulhac, 126 A.3d
991, 997-98 (Pa. Super.), appeal denied, 129 A.3d 1244 (Pa. 2015). The
Court in that case observed that this duty is expressed in Section 344 of the
Restatement (Second) of Torts, which states:
A possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the
public while they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent, or
intentionally harmful acts of third persons or animals, and by the
failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to
be done, or
(b) give a warning adequate to enable the visitors to avoid
the harm, or otherwise to protect them against it.
The Court in Truax explained:
Comment f to Section 344 explains the duty to protect business
invitees against third party conduct arises only if the owner has
reason to anticipate such conduct.
f. Duty to police premises. Since the possessor is
not an insurer of the visitor’s safety, he is ordinarily
under no duty to exercise any care until he knows or
has reason to know that the acts of the third person
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are occurring, or are about to occur. He may,
however, know or have reason to know, from past
experience, that there is a likelihood of conduct on
the part of third persons in general which is likely to
endanger the safety of the visitor, even though he
has no reason to expect it on the part of any
particular individual. If the place or character of his
business, or his past experience, is such that he
should reasonably anticipate careless or criminal
conduct on the part of third persons, either generally
or at some particular time, he may be under a duty
to take precautions against it, and to provide a
reasonably sufficient number of servants to afford a
reasonable protection.
Restatement (Second) of Torts § 344 cmt. f.
Consequently, Appellees owed Truax “a duty owed to any
business invitee, namely, that [they] would take reasonable
precaution against harmful third party conduct that might be
reasonably anticipated.” Paliometros v. Loyola, 932 A.2d 128,
133 (Pa.Super.2007) (citations omitted).
The reason is clear; places to which the general
public are invited might indeed anticipate, either
from common experience or known fact, that places
of general public resort are also places where what
men can do, they might. One who invites all may
reasonably expect that all might not behave, and
bears responsibility for injury that follows the
absence of reasonable precaution against that
common expectation.
Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 745 (1984).
Truax, 126 A.3d at 997-98. Under Truax and similar cases,6 Appellees had
a duty to exercise reasonable care to protect their business invitees,
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6
See Martin v. Rite Aid of Pa., Inc., 80 A.3d 813, 815 (Pa. Super. 2013)
(“As possessors of land who hold it open to the public, [defendants] owe a
duty to any business invitee, including Appellant, to take reasonable
(Footnote Continued Next Page)
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including Reason, from harm that might result from the intentional or
negligent acts of third parties if Appellees had reason to anticipate such
conduct.
Reason contends that Appellees had cause to anticipate Thomas’
intentional violent acts because Riley “knew about Thomas’ prior mental
health history and [knew] that Ms. Thomas had failed to take her medication
on the day of the [in]cident.” Appellant’s Brief at 10. But the record does
not support Reason’s claim. No party presented any evidence that Thomas
had a history of violence or that her mental health issues were related to
violent behavior. To the contrary, while Riley admitted that Thomas had
been voluntarily committed to a mental hospital on more than one occasion,
the reason was that Thomas had been “overwhelmed with having three
kids[; w]hen the father was killed right in front of his mother, that sent her
over.” Riley Dep. at 29. Riley testified that Thomas had not been involved
in a physical altercation since she was a child. Id. at 28. Even though
_______________________
(Footnote Continued)
precaution against harmful third party conduct that might be reasonably
anticipated” (citation and internal quotation marks omitted)); Ovitsky v.
Capital City Econ. Dev. Corp., 846 A.2d 124, 126 (Pa. Super. 2004)
(“Under [Restatement] Section 344, . . . [defendant hotel] owed a duty to
[business invitee] Ovitsky to take reasonable precaution against harmful
third party conduct that might be reasonably anticipated” (citation and
internal quotation marks omitted)); Rabutino v. Freedom State Realty
Co., 809 A.2d 933, 939-40 (Pa. Super. 2002) (duty to protect hotel patron
from known rowdy crowd of underage hotel guests drinking alcohol); cf.
Kerns v. Methodist Hosp., 574 A.2d 1068, 1076 (Pa. Super. 1990) (lack of
duty to protect deliveryman from unanticipated third-party attack at nursing
residence owned by hospital).
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Thomas had been in Kathryn’s Korner about once per month before
September 19, 2012, there had been no previous incidents. Riley Dep. at
10, 18, 27-28; see also Trial Ct. Op. at 11. The Drueding Center’s vice
president, Ann Marie Collins, who was in charge of the thrift shop, testified
that she did not even know Thomas prior to the incident. Ann Marie Collins
Dep. at 6, 10; see also Trial Ct. Op. at 11. Thus, in the words of the trial
court, “There is nothing in the record to show that Thomas had a violent
nature or that [Appellees] knew or should have known of the purported
violent nature of Thomas.” Trial Ct. Op. at 11.7
In the absence of any evidence in the record that Thomas had a
history that would put Appellees on notice that she might engage in violent
conduct, Reason’s theory that Appellees had a duty to take precautions to
protect against such conduct fails. Appellees had no reason to anticipate
violent acts by Thomas against their business invitees, and therefore had no
duty to protect Reason as a business invitee. See Truax, 126 A.3d at 997-
98. In the absence of such a duty, Reason may not recover for negligence.
See Newell, 154 A.3d at 822. Thus, the trial court properly entered
summary judgment on this claim.
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7
It appears that Reason’s claim is based on an unstated assumption that
because Thomas had a history of mental health issues, she must be violent.
The record contains absolutely no basis for such an assumption with respect
to Thomas, and Reason provides no evidence to support a theory that all
persons with a history of mental health treatment are potentially violent.
Common knowledge is to the contrary.
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Duty to Aid
Second, Reason contends that Appellees’ “duty to [her] as a business
invitee included the duty to adequately respond to the actual harms that
were being committed on [her]” by Thomas. Appellant’s Brief at 7. Reason
continues: “[Reason]’s fourth amended Complaint alleges that the
[Appellees] were negligent in failing to properly assist and aid [Reason]
while she was being assaulted. [Reason]’s Complaint further alleges
[Appellees] were negligent in not contacting the police in response to this
incident.” Id. at 9 (citing Fourth Am. Compl., 2/2/15, at 8-9 ¶ 28(l), (u)).
We conclude that on this claim too, Reason failed to state a viable legal
claim that would prevent entry of summary judgment against her.
This Court considered a business’ duty to come to the aid of a business
invitee in Campbell v. Eitak, 893 A.2d 749 (Pa. Super. 2006). In
Campbell, a patron who choked on a piece of chicken in a restaurant
brought a negligence action against the restaurant, alleging that the
restaurant failed to have policies and procedures in place for responding to a
choking emergency and failed to administer appropriate first aid. Id. at
750. This Court affirmed the trial court’s entry of summary judgment in
favor of the restaurant, holding, as a matter of first impression, that the
restaurant discharged its duty to its patron by summoning medical
assistance within a reasonable time — “within minutes of Campbell’s
reported distress.” Id. at 749-51, 753.
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In reaching this conclusion, this Court rejected the duty of care set
forth in the Restatement (Second) of Torts § 314A(3). Campbell, 893 A.2d
at 752. Section 314A states:
(1) A common carrier is under a duty to its passengers to take
reasonable action
(a) to protect them against unreasonable risk of
physical harm, and
(b) to give them first aid after it knows or has reason
to know that they are ill or injured, and to care for
them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is
under a similar duty to members of the public who enter in
response to his invitation.
(4) One who is required by law to take or who voluntarily
takes the custody of another under circumstances such as to
deprive the other of his normal opportunities for protection is
under a similar duty to the other.
Although Paragraph (1) of this section, the provision dealing with common
carriers, was cited with approval in dicta by the Supreme Court of
Pennsylvania in Stupka v. Peoples Cab Co., 264 A.2d 373, 374 (Pa. 1970),
the Commonwealth’s decisional law had not embraced the other paragraphs
of this provision regarding other types of business entities, and the Court in
Campbell declined to do so with respect to the restaurant. Instead, relying
on Lee v. GNLV Corp., 22 P.3d 209 (Nev. 2001), and Drew v. LeJay’s
Sportsmen’s Cafe, Inc., 806 P.2d 301 (Wyo. 1991), the Court held that
restaurant employees’ “duty to aid” extended only to calling for professional
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medical assistance within a reasonable time; the businesses did not owe a
duty to provide first aid themselves. Campbell, 893 A.2d at 751-52.8 We
have not revisited the issue since that time.
Although Campbell, Lee, and Drew all involved provision of medical
assistance to restaurant patrons, we see no reason to distinguish restaurant
cases from others where business invitees require assistance.9 Nor do we
perceive a relevant distinction between the medical assistance required for
the choking victim in Campbell and the assistance required for a victim of a
physical altercation, as in this case. Just as a business is under no legal
duty to don the mantle of a medical professional to attend to an invitee’s
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8
The court in Drew gave several reasons for this result, many of which
related to the extensive training requirements that imposition of a new duty
to provide first aid would create for not just large-scale restaurants, but also
“the 24-hour convenience store, grocery stores, movie theaters, and corner
newsstand,” as well as “all business-invitors, whatever products or services
they offer to the public.” 806 P.2d at 305. The court expressed concern
about compelling lay employees “to perform first aid against their better
judgment,” rather than relying on rescue techniques performed by
professional responders. Id. at 305-06.
9
We have found no Pennsylvania case law — and neither party has provided
any — discussing other types of businesses. With respect to providing
medical assistance to patrons, courts in jurisdictions in addition to Nevada
and Wyoming have agreed that that the duty of businesses other than
restaurants is limited to promptly summoning professional medical
assistance. See, e.g., L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550,
552, 560 (Fla. Dist. Ct. App. 2008) (health club satisfied its duty to render
assistance to the deceased as a matter of law when it promptly summoned
professional medical assistance for him by calling 911), review denied, 1
So. 3d 172 (Fla. 2009); Southland Corp. v. Griffith, 633 A.2d 84, 85, 90-
91 (Md. 1993) (convenience store owed business visitor “a legal duty to aid
(call the police) when he requested assistance”).
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medical need, so too is a business not required to act as a policeman in the
face of an ongoing assault. Indeed, imposing such a duty could place the
business employees at risk of harm and impose liability on the business if its
employees are injured. Although the alleged assault here consisted of
fisticuffs between thrift shop patrons, it is not difficult to imagine more
dangerous hostilities, perhaps involving firearms. Thus, based on Campbell
and related case law and in the absence of any contrary authority provided
by Reason, we agree that a business satisfies its duty to aid a business
invitee by calling 911 or another source of professional medical or police
assistance.10
Reason contends, however, that even if Appellees’ only duty was to
summon police, Appellees’ breached that duty by failing to call for assistance
in this case. Reason insists that genuine issues of material fact are in
dispute because, although Riley claims she called the police after the
altercation began, Reason has grounds to doubt that Riley or anyone else at
the thrift shop actually did so. She bases those doubts on her contention
that no police officers responded within any reasonable time after Thomas
punched her. She adds:
Riley’s assertions about how she responded to this incident
directly contradict [Reason]’s allegations. Accordingly, the
credibility of Ms. Riley as a witness and her testimony regarding
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10
We note that, in her brief to this Court, Reason does not suggest any
other actions that Appellees should have taken to render “aid” or
“assistance” besides calling first responders. Appellant’s Brief at 9.
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the reasonableness of her response are issues that must be
determined by a finder of fact.
Appellant’s Brief at 9-10.
Riley claims she made two calls to summon authorities, first by way of
an alarm button in the store, and then by using her cell phone. She testified
as follows at her deposition:
Q. At any point did you consider calling the police?
A. I called the cops and it’s a little button we have to push if
something happens so I pushed the button.
Q. Is that an alarm or similar?
A. It’s supposed to go straight to the cops.
Q. And then they’re supposed to come directly there?
A. Yes.
Q. And you also called them on the phone?
A. Yes.
Q. How long was it before they arrived?
A. I don’t know.
Q. Did the cops arrive at the scene of this incident?
A. When I seen the cops, she was bringing them into the store,
Desiree.
Q. From your understanding, did the cops ever respond to the
call that you placed?
A. I can’t say. I don’t know.
Riley Dep. at 33-34.
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Despite Riley’s professed belief that the alarm button sent an alarm
“straight to the cops,” it appears that the button instead may have been
wired to notify a central desk at Drueding. See Trial Ct. Op. at 11. A
Drueding employee, Calvin Collins, testified that he received a call from
Drueding’s “RA desk”11 to alert him that “something was going on in front of
the thrift store” and that he should investigate. In response to that call,
Collins interceded and broke up the altercation. Calvin Collins Dep. at 9-10.
We thus note that even if use of the alarm button did not succeed in calling
the police, it did successfully summon assistance by someone who could end
the confrontation and thereby rescue Reason from any ongoing attack —
fulfillment of the duty that Reason claims was breached.
Regarding Riley’s testimony that she made a second call to the police
from her cell phone, the only other evidence in the record is deposition
testimony by Reason herself that corroborates Riley’s use of her cell phone
to make a call. See Desiree Reason Dep. at 38-39 (“Nadine came out with
the cell phone in her hand. She made a phone call.”). When asked about
the call, Reason testified:
Q. When you came out of the store, when Nadine Riley made the
call, do you know who she made the call to?
A. No, I don’t. I was outside while she was on the phone. I
don’t know who she was calling. I -- I thought she was calling
the police.
____________________________________________
11
“RA” apparently stands for “reception area.” See Calvin Collins Dep. at
13-14.
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Id. at 39; see id. at 48-49. Reason cites no testimony that Riley did not
call the police or called anyone other than the police.12
Reason contends that the police did not arrive at the thrift store while
the altercation was taking place, and she argues that the failure of the police
to promptly report to the scene is evidence that Riley did not actually call
them. The facts relating to whether and when the police reported to the
scene of the altercation are muddled. Riley testified that she saw the police
at the scene of the incident when Reason “was bringing them into the store,”
and that they arrived within an hour of the incident. See Riley Dep. at 34;
see id. at 40 (testimony that incident occurred between 1:00 and 1:30 p.m.
and police arrived before 2:30 p.m.). When asked if the police were
responding to her call, Riley stated, “I can’t say. I don’t know.” Id. at 34.
Calvin Collins stated only that he did not see police. See Calvin Collins Dep.
at 18. Reason testified as follows:
Q. Okay. Did the police show up at any point?
A. No. I called the police. I went to the -- after the incident was
over, I went to the Public Health Clinic, called the police, had the
____________________________________________
12
At the same time as she testified about Riley’s call, Reason testified that
three men arrived at the thrift store on bikes and held her down while
Thomas punched her. In the trial court, Reason claimed that Riley may have
called those male assailants, but the trial court concluded, “there is no
evidence of record to support the claim that Riley called three unknown
assailants to the scene to hold Plaintiff down and enable the attack to
continue.” Trial Ct. Op. at 8. Our review of the record confirms the trial
court’s conclusion. Reason’s brief does not repeat the claim that the men
arrived as a result of Riley’s call.
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police go back around there with me because I had left my
crutches in the store.
So I went around there to get my crutches and the police went
inside, talked to Nadine and told me not to come back in the
store anymore.
...
Q. I just wanted to grab the police report, ma’am.[13] So we’ve
taken a look at the police report and the police report, basically,
states that you stated to the police that while inside Kathryn’s
Korner, that you got into a verbal dispute with the manager,
Nadine Riley, over pricing; did that happen?
A. Uh-uh.
Q. Did you tell the police that?
A. No. I didn’t get the chance to tell the police anything.
...
Q. . . . The police report says that you stated that Nadine’s
daughter started to punch you outside the store, not inside the
store?
A. I have no comment, sir. I didn’t even get the chance to talk
to the police. Except that I went and called the police. They
met me around in front of the thrift shop, went inside with me
while I got my crutches.
The police wouldn’t even talk to me. I was nobody, I was told
not to come back in the store, and the police talked to Nadine.
He didn’t say anything to me.
Desiree Reason Dep. at 42-43, 46-47.
The deposition testimony establishes that the police did respond to a
call regarding an incident at the thrift store; both Riley and Reason agree on
____________________________________________
13
The police report is not in the certified record.
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that. Accepting Reason’s deposition testimony as true (despite its internal
inconsistencies), a fact-finder might conclude that the police went to the
thrift store in response to a call from Reason, rather than a call from Riley.
But even if that is true, it does not establish that Riley did not call the police
when she made the call from her cell phone. The record contains no police
report or other evidence regarding what notice of the incident the police
received. Riley’s testimony that she called the police therefore remains
undisputed.
In sum, Reason failed to present evidence sufficient to create a triable
fact regarding breach of any duty by Appellees to summon aid to end the
assault on Reason. The trial court therefore properly entered summary
judgment in favor of Appellees on this claim.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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