Ball v. Wal-Mart, Inc.

• Decision Date: 23 June 2000
• Docket Number: No. Civ.A. 98-11887-RBC.<SMALL><SUP>1</SUP></SMALL>,Civ.A. 98-11887-RBC.<SMALL><SUP>1</SUP></SMALL&gt
• Parties: Mary Claire BALL, Thomas Ames Ball, Plaintiffs, v. WAL-MART, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 44

102 F.Supp.2d 44

Mary Claire BALL, Thomas Ames Ball, Plaintiffs, v. WAL-MART, INC., Defendant.

No. Civ.A. 98-11887-RBC.¹

United States District Court, D. Massachusetts.

June 23, 2000.

COPYRIGHT MATERIAL OMITTED

Janice O. Fahey, Craig & Macauley, P.C., Boston, MA, for defendants.

William J. Ruotolo, McKay & Ruotolo, Warwick, RI, for plaintiffs.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 46)

COLLINGS, Chief United States Magistrate Judge.

I. Introduction

Wal-Mart prides itself on its policy of having "people greeters" with smiling faces who stand at the entrances to their stores presumably to "greet" shoppers.² At times, Wal-Mart assigns the "greeters" to do other tasks. Mary Claire Ball (hereinafter, "Ms.Ball") had an encounter with one of the "greeters" on November 22, 1997 which did not leave her smiling. In fact, it led to the filing of this lawsuit ten months later.

Ms. Ball's central allegation in this lawsuit is that one of these "greeters," a Wal-Mart employee, one James Harris ("Mr.Harris"), denied her egress from a Wal-Mart store and proceeded to search her shopping cart before letting her leave. The shopping cart contained all of the items processed and purchased through the check-out counter.

Ms. Ball and her husband, Thomas Ames Ball ("Mr.Ball") filed the eight-count complaint in this case on August 13, 1998 in the Superior Court for Norfolk County, Massachusetts, naming as party defendant Wal-Mart, Inc. ("Wal-Mart"). On September 3, 1998, Wal-Mart filed an answer and eleven days thereafter, the action was removed to the federal court.

The litigation has progressed to the point where discovery has closed and the defendant has filed a motion for summary judgment including a concise statement of material facts (# 46), a memorandum of law in support, and an appendix of exhibits (# 47). In response, Ms. Ball and Mr. Ball have submitted an opposition to Wal-Mart's dispositive motion (# 48). The defendant has also submitted a supplemental memorandum in support of its motion for summary judgment (# 52). With the record now complete, the defendant's motion for summary judgment is in a posture for decision.

II. The Facts

The facts that are fundamental to the relevant events in this case are largely uncontroverted. However, the inferences, implications, and conclusions to be drawn from those facts most certainly are.³ If any relevant facts are in dispute, it shall be noted although, of course, the facts are to be viewed in the light most favorable to the non-moving party.

In anticipation of the Christmas holiday season the defendant, Wal-Mart, store number 2103, had a receipt/bag checking policy in place to discourage shoplifting. (Concise Statement of Material Facts, # 46 ¶ 1; Affidavit of Kallie Spaulding, # 47 Exh. A, ¶ 3) This policy provided that Wal-Mart employees stationed near the exits would check the shopping bags against the patrons' receipt as they left the store. (# 46 ¶ 2; # 47 Exh. A, ¶ 4) The bag check was to take place inside the store and within view of the checkout counters. (# 46 ¶ 5; # 47 Exh. A, ¶ 7) If the store was busy employees were instructed to check as many bags as they could. (# 46 ¶ 3; # 47 Exh. A, ¶ 5) If a customer refused to have his or her bag checked, the policy allowed the person to pass. (# 46 ¶ 6; # 47 Exh. A, ¶ 8) There is no evidence that any notice of said policy was given to shoppers either as they entered the store or as they paid for their purchases and left the store through the exits.

On November 22, 1997, Ms. Ball and her husband went shopping at Wal-Mart store number 2103, located in Walpole, Massachusetts.⁴ (Ms. Ball's deposition, # 48 Exh. 1 at 20) After making her selections, Ms. Ball brought her items to the cash register where she purchased them with a personal check. (# 48 Exh. 1 at 27) Small items were placed in a blue bag provided by the defendant, and all items were placed in the shopping cart. (# 47 Exh. C, at 1)

As Ms. Ball walked into the foyer marked "Exit," Mr. Harris approached her. (# 48, Exh. 4 at ¶ 5) Ms. Ball gives somewhat conflicting statements as to what was said and not said during the encounter. In her answers to interrogatories (# 47, Exh. C at p. 2) signed on September 22, 1998, she stated:

I walked to the door of the foyer and noticed an elderly gentleman adjusting the door. As I approached the door and stepped into the foyer, he suddenly remarked, "Well, what do we have here?" ... I was unable to to continue toward the second door because the gentleman leaned over my wagon and stated "The cameras are not working." As he continued to examine my previously paid for items, he asked to see my receipt.

At her deposition signed on October 13, 1999, she testified:

I paid with a check and I walked toward the door and I noticed a gentleman, an older gentleman, standing by the frame of the door. And as I approached him, just after I entered the foyer, as soon as I pushed my carriage into the foyer, he said, "Well, what do we have here"?

In an affidavit filed on January 15, 2000 (# 48, Exh. 4, ¶¶ 5-9), she stated:

As I entered the foyer marked as the "Exit," an elderly man approached me without saying a word and placed his body up against my cart preventing me from leaving the store. The elderly man leaned over my cart and looked inside the blue Wal-MART bag at the items I purchased. He did this for quite a long time.

* * * * * *

After perusing the items in my shopping bag and shopping cart, the elderly man looked at me with eyes squinting and said "Could I have your receipt." [sic] His words were stated in such a manner that clearly reflected that it was imperative to give him my receipt. His words were not a mere precatory and polite request. His eyes made me believe that he was looking into my face in order to memorize my appearance.

* * * * * *

After the elderly man was finished searching the items in my shopping, the elderly man asked for no receipts from the many persons who had lined up behind me while he searched my personal property.

After perusing the articles in the shopping cart, Mr. Harris returned the receipt to the plaintiff. (# 47 Exh. C, at 2) By Ms. Ball's estimation, the incident lasted several minutes. (# 47 Exh. C, at 2) A woman directly behind the plaintiff remarked, "He's holding up the whole line. What did he think, you had done-stolen [sic] something?" (# 47 Exh. C, at 2)

After the incident, Ms. Ball walked to her car and requested her husband to accompany her back inside the defendant's store in order to lodge a complaint about the incident. (# 47 Exh. C, at 2) The Balls first complained to a Wal-Mart cashier about the policy. To this, the employee replied, "Oh yes, we're doing that now." (# 47 Exh. C, at 2) The plaintiffs were then directed to another employee, Shawn Suhoski, who acknowledged the policy and also identified Mr. Harris as the employee who conducted the inspection. (# 47 Exh. C, at 3) When the Balls arrived home they called Wal-Mart headquarters in Bentonville, Arkansas in order to complain about the receipt/bag check policy. (# 47 Exh. C, at 3) Several days later the plaintiffs received a telephone call from Kallie Spaulding, the manager of the Wal-Mart store in Walpole, Massachusetts. (# 47 Exh. C, at 3) Ms. Spaulding expressed her regrets, but explained that checking the customers' bags and receipt was company policy.⁵ (# 47 Exh. C, at 3)

This factual recitation sufficiently sets the stage for the present action. Further facts shall be added, as necessary, during the legal discussion.

III. The Claims

All claims arise under state law.⁶ The first six counts of the plaintiffs' complaint relate to Ms. Ball. Count I alleges a claim for defamation. A claim for invasion of privacy is asserted in Count II. Counts III and IV set forth causes of action for negligent and intentional infliction of emotional distress respectively. Count V charges a violation of Mass.Gen.Laws. ch. 93A. Count VI advances a charge of negligent hiring. Thomas Ball claims a loss of consortium in Count VII. Finally, Ms. Ball alleges a claim of false imprisonment in Count VIII.

IV. The Summary Judgment Standard

When considering whether to grant summary judgment, the Court must determine whether:

... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

In making this assessment, the Court must "accept all reasonable inferences favorable to the nonmovant." Int'l Ass'n of Machinists and Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 205 (1 Cir., 1996); see also Lawton v. State Mut. Life Assurance Co. of America, 101 F.3d 218, 222-23 (1 Cir., 1996); Borschow Hospital and Medical Supplies v. Cesar Castillo, Inc., 96 F.3d 10, 12 (1 Cir.1996); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1 Cir., 1996); One Nat'l Bank v. Antonellis, 80 F.3d 606, 608 (1 Cir., 1996).

A factual dispute which is neither "genuine" nor "material" will not survive a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a factual dispute is "genuine", the Court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.; see also Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1 Cir., 1997); Sanchez v. Alvarado, 101 F.3d 223, 227 (1 Cir.1996); Roche, 81 F.3d at 253. In weighing whether a factual dispute is "material", the Court must examine the substantive law of the case, because "only disputes over the facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Vinick v. Commissioner of Internal...