Ferguson v. Creative Hairdressers, Inc.

• Decision Date: 24 January 2023
• Docket Number: CIVIL 8:21-cv-1990-AAQ
• Parties: JOSEPHINE FERGUSON Plaintiff v. CREATIVE HAIRDRESSERS, INC. D/B/A HAIR CUTTERY Defendant
• Court: U.S. District Court — District of Maryland

JOSEPHINE FERGUSON Plaintiff
v.
CREATIVE HAIRDRESSERS, INC. D/B/A HAIR CUTTERY Defendant

CIVIL No. 8:21-cv-1990-AAQ

United States District Court, D. Maryland

January 24, 2023

MEMORANDUM OPINION

Ajmel A. Quereshi, U.S. Magistrate Judge.

This is a case concerning allegations that a routine hair appointment damaged a customer's hair. Pending before the Court is Defendant Creative Hairdressers, Inc. d/b/a Hair Cuttery's Motion for Summary Judgment. ECF No. 32. The Motion has been fully briefed and I conclude that a hearing is not necessary under this Court's Local Rules. See Loc. R. 105.6 (D. Md. 2021). For the reasons discussed below, Defendant's Motion shall be denied.

BACKGROUND

Plaintiff Josephine Ferguson has been receiving routine chemical treatments on her hair for over forty-five years. ECF No. 33-2, at 1. As part of such, she receives a “touchup” or “perm”,^[1]the effect of which is to straighten her hair, and then has her hair colored. Id. at 1-2. She receives such treatments on average every six to eight weeks, though sometimes less frequently. Id. at 2. For more than thirty years, either her sister-in-law or another family member relaxed and/or colored Ms. Ferguson's hair. Id. In between receiving these services, she would shampoo, blow

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dry, and then flat iron her hair every two to three weeks. Id. at 4. She also would apply oil to her own scalp. Id. at 8. Beginning in or around 2010, Ms. Ferguson began to visit a salon for these services. Id. at 3. For several years, she received services at Salon Cielo or another salon closer to her home. Id. Sometime in 2018, Ms. Ferguson began receiving services from Melanie Stuckey at the Hair Cuttery, the Defendant in this case. Id. at 3.

Until approximately June 5, 2018, Ms. Ferguson was generally satisfied with the condition of her hair. By her own account, she had “long, beautiful hair, past [her] shoulders.” Id. at 4. Although she naturally shed small amounts of hair, as all individuals do, id. at 7, she alleges she did not have any bald spots or alopecia, nor had she received any medical treatment related to her hair or scalp condition. Id. at 8. Sometime before May 29, 2018, Ms. Stuckey left employment with the Hair Cuttery. Id. at 7. Ms. Ferguson, nonetheless, decided to continue receiving hair services there. What happened next is a significant source of dispute between the parties.

I. The Events According to Ms. Ferguson.

On or about May 29, 2018, Ms. Ferguson's hair was treated by Michelle Pinkney, another employee of the Hair Cuttery. Id. Ms. Ferguson scheduled another appointment to see Ms. Pinkney on June 5, 2018. On that date, Ms. Ferguson asked for her standard treatment - a touch up and color to account for the amount of new gray hair that had grown in since her last relaxation and coloring treatment. Id. at 9. The two did not discuss the process; rather, Ms. Pinkney took Ms. Ferguson to the back of the shop, draped a cloth over her and “started the process.” Id. at 9. Ms. Pinkney turned Ms. Ferguson away from the mirror so she could not see what Ms. Pinkney did, but Ms. Ferguson felt a brush applying a substance to her hair. Id. at 10. After some time, Ms. Pinkney washed the substance out of Ms. Ferguson's hair; she then dried Ms. Ferguson's hair with a blow dryer and straightened it using a flat iron. Id. at 10.

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However, that evening, after Ms. Ferguson returned home, while she was combing her hair, she noticed “a lot” of her hair falling into the sink. Id. at 11. For a number of days afterwards, Ms. Ferguson noticed that pieces of her hair continued to break, each one at least one or two inches long. Id. at 11-12. At some point over the course of the next month, Ms. Ferguson returned to the Hair Cuttery, where she spoke with Ms. Pinkney regarding the condition of her hair. Id. at 14. According to Ms. Ferguson, when she expressed concern regarding the condition of her hair to Ms. Pinkney, Ms. Pinkney responded that the best course would be for Ms. Ferguson to cut her hair off. Id. On July 14, 2018, Ms. Ferguson visited Ms. Stuckey, who was able to take some action to stop the hair breakage. Id. at 12.

II. The Events According to Ms. Pinkney.

Perhaps unsurprisingly, Ms. Pinkney has a different recollection of her interactions with Ms. Ferguson. Sometime on or around the last week of May, Ms. Pinkney recalls treating Ms. Ferguson's hair for the first time. Ms. Ferguson contracted with the Hair Cuttery for the application of a protein conditioner called “Redken Chemistry”, and then a “press and curl.”^[2] ECF No. 33-3, at 1. According to Ms. Pinkney, Ms. Ferguson specifically asked for the protein treatment because she had been suffering from hair breakage prior to receiving any services from Ms. Pinkney. Id. at 2. In fact, according to Ms. Pinkney, Ms. Stuckey had been treating Ms. Ferguson's hair regularly for this problem, id., including on at least one occasion, over Ms. Ferguson's objections. ECF No. 34-1, at 9. However, Ms. Pinkney indicated that although she had seen split ends and dryness, id. at 23, she never saw any evidence of breakage or scalp irritation when treating Ms. Ferguson's hair. Id. at 21. Ms. Pinkney does not recall relaxing Ms. Ferguson's hair during their first meeting. Id. at 6.

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On June 5, 2018, Ms. Pinkney again treated Ms. Ferguson's hair. ECF No. 33-3, at 4. Consistent with Ms. Ferguson's recounting, Ms. Ferguson contracted with Ms. Pinkney to have her hair relaxed, conditioned, colored, and iron set. Id. The press Ms. Ferguson received on her first visit was made unnecessary by the relaxation treatment. Id. at 5. Ms. Ferguson had come in for the treatment specifically because she planned to attend an upcoming class reunion. Id.

Ms. Pinkney described the treatment, as follows. First, Ms. Pinkney applied the “base” from Ms. Ferguson's scalp to about an inch above the scalp to account for the new hair that had grown in. Id. After the base, Ms. Ferguson applied the relaxer. Id. Ms. Pinkney typically leaves the relaxer on for approximately fifteen to twenty minutes, but because Ms. Pinkney perceived Ms. Ferguson's hair as short and medium textured, she left the relaxer on for ten to twelve minutes. Id. After the relaxation was complete, Ms. Pinkney colored Ms. Ferguson's new hair growth and iron set her hair. Id. at 6. As Ms. Ferguson described, Ms. Pinkney does not recall Ms. Ferguson complaining about any burning sensation during the procedure, other than exclaiming “ooh” due to a tingling sensation she experienced when Ms. Pinkney sprayed Ms. Ferguson's hair with an alcohol-based spray. Id.

After the events of June 5, Ms. Ferguson saw Ms. Pinkney for hair services approximately three more times. Id. at 3, 4. Ms. Pinkney did not apply relaxer to Ms. Ferguson's hair during any of these visits. ECF No. 34-1, at 10. During the next two visits, according to Ms. Pinkney, Ms. Ferguson did not raise any concerns regarding damage to her hair. ECF No. 33-3, at 3. However, Ms. Pinkney admits that during their fifth and final visit, Ms. Ferguson asked Ms. Pinkney if she had seen any of her hair in the sink when treating her hair. Id. When Ms. Pinkney responded in the negative, Ms. Ferguson stated that, as she brushed her hair at home, she “had seen a few strands of . . . hair” come out. Id. Although Ms. Ferguson allegedly conceded the amount of hair was not

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“a lot,” she stated it was “concerning.” Id. Ms. Pinkney denied ever telling Ms. Ferguson that she should deal with the problem by simply cutting her hair off. ECF No. 34-1, at 21. Sometime thereafter, Ms. Pinkney recalled discussing Ms. Ferguson's hair with another Hair Cuttery employee who recounted that Ms. Ferguson had contacted the Hair Cuttery to complain about damage to her hair. Id. at 10.

III. The Litigation.

Ms. Ferguson initially filed her Complaint in Circuit Court in Prince George's County, Maryland. ECF No. 1-5. Her Complaint alleged a single count of negligence arising out of the events described above. Ms. Ferguson specifically alleged injuries to her scalp, head and hair; medical expenses; physical and emotional pain and suffering; and loss of past, present and future income. ECF No. 1-5, at 4. As relief, Ms. Ferguson demanded a judgment “in excess of . . . $75,000.” Id. at 5.

On August 6, 2021, Defendant removed the case to this Court. ECF No. 1. On October 22, 2021, this case was referred to the Honorable Charles Day for all further proceedings. ECF No. 12. As noted above, during discovery, the parties deposed Ms. Pinkney and Ms. Ferguson. Plaintiff additionally sought to depose Ms. Stuckey, as well as two of Defendant's other employees. ECF No. 33-1, at 9. According to Plaintiff, these three individuals refused to appear for deposition. Id. Plaintiff, however, did not seek relief from the Court as to their non-appearance other than an extension of the relevant discovery deadline.

During Ms. Pinkney's deposition, she reviewed photos of Ms. Ferguson's hair. ECF No. 33-3 at 7. Ms. Pinkney admitted that Ms. Ferguson's hair was damaged in multiple places, and in her opinion, that damage appeared to be the result of chemical treatments. ECF No. 33-3 at 7. In Ms. Pinkney's opinion, the specific type of damage - breaking, thinning and sparseness of hair

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and split ends - appeared to be the result of either bleaching or relaxation chemicals. Id. at 7-9. Ms. Pinkney indicated that that type of damage could have been the result of the application of a relaxer and a peroxide-based coloring at the same time, ECF No. 34-1, at 20-21, though Ms. Pinkney denied doing so to Ms. Ferguson's hair. Id. at 21.

Defendant also issued interrogatories to Plaintiff. In her answers, Plaintiff confirmed, as she did in her deposition, that she was unaware of the specific chemicals that Ms. Pinkney applied to her hair, ECF No. 32-2, at 5; by the time she arrived home after her scheduled service on...