Hoke v. May Dept. Stores Co., 9302-01301

• Decision Date: 08 March 1995
• Docket Number: No. 9302-01301,9302-01301
• Citation: 891 P.2d 686,133 Or.App. 410
• Court: Oregon Court of Appeals
• Parties: , 10 IER Cases 655 Tammy HOKE, an individual, Appellant, v. The MAY DEPARTMENT STORES COMPANY, a New York corporation, dba Meier & Frank Co., Meier & Frank Company, an Oregon corporation, Respondents, and Percy Winters, Defendant. ; CA A83404.

Page 686

891 P.2d 686

133 Or.App. 410, 10 IER Cases 655

Tammy HOKE, an individual, Appellant, v. The MAY DEPARTMENT STORES COMPANY, a New York corporation, dba Meier & Frank Co., Meier & Frank Company, an

Oregon corporation, Respondents,

and

Percy Winters, Defendant.

No. 9302-01301; CA A83404.

Court of Appeals of Oregon.

Argued and Submitted Nov. 23, 1994.

Decided March 8, 1995.

Edward S. McGlone, III, argued the cause and filed the briefs, for appellant.

Robert D. Bulkley, Jr., argued the cause, for respondents. With him on the brief were Barrie J. Herbold and Markowitz, Herbold, Glade & Mehlhaf, P.C.

Before RIGGS, P.J., ^* and De MUNIZ and LEESON, JJ.

LEESON, Judge.

Plaintiff appeals from the trial court's granting of summary judgment to The May Department Stores Company (defendant). ¹ We write only to address plaintiff's claims of negligent supervision and retention. We review the record in the light most favorable to plaintiff to determine whether defendant established that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law, Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978), and reverse.

On February 25, 1990, plaintiff, then 15 years old, shoplifted a nightgown from the Meier & Frank department store at Lloyd Center. A customer service representative called Meier & Frank senior security agent Winters and told him to contact clerk Wiley for information about the incident. Wiley told Winters that another clerk, Miller, had followed plaintiff out of the store, because plaintiff had stolen an item of lingerie. Winters went to the store exit that Wiley described, but did not see plaintiff or Miller. Miller subsequently told Winters that he could find plaintiff sitting outside at a bus stop across the street. Winters found plaintiff and told her that clerks in the store had seen her steal an item of lingerie. Winters asked plaintiff to open her purse. When she did, Winters saw a green nightgown in the purse.

Winters told plaintiff that she must accompany him back into the store to take care of the matter and that if she did not accompany him voluntarily, he would place her in handcuffs. Plaintiff went with Winters and he took her to the security office, which was located in the "sub-basement" of the store, through a set of double doors on which a sign was posted stating that only store personnel were allowed beyond them. Once plaintiff and Winters were inside the security room, Winters closed and locked the door.

Meier & Frank's security manual provides that security officers should conduct interviews with suspects in the presence of two or more employees and should have a female employee present when a female subject is involved. Security director Verheul had previously given Winters a "very strong direction" not to interview suspects alone. Because the second security guard on duty had gone home early, Winters twice called a customer service representative and requested that a female employee come to the office to observe the interview with plaintiff. Winters also attempted to page the female store manager who was on duty at the time. When no one responded to that page, Winters again called customer service and requested that the manager be paged over the store loudspeaker. He heard the page broadcast throughout the store, but the manager never responded and no one came to the security room.

During this time, plaintiff became increasingly distraught and begged Winters not to call the police or prosecute her. Winters told her that he would have to call the police and that she would probably be sent to jail. Winters also told her that it was likely that she would be placed in a cell with another woman who would sexually abuse her. Winters then gave plaintiff the impression that if she would engage in sexual intercourse with him, he would release her without calling the police. Feeling that she was in danger or would be harmed if she refused to comply with Winters' request, plaintiff agreed. Winters turned off the lights in the security office and engaged in sexual acts, including intercourse, with plaintiff. Winters then turned on the lights, made several more telephone calls, completed some paperwork and, about 20 minutes later, released plaintiff. Plaintiff reported the incident to the police the following day. After Winters pleaded no contest to criminal charges, defendant terminated his employment.

Plaintiff's complaint alleged multiple claims for relief. In part, the complaint alleged that defendant was negligent as follows:

"THIRD CLAIM FOR RELIEF

"(Negligence of Defendant May)

"Count One--Negligent Hiring and Retention

" * * * * *

"(26)

"Defendant May was negligent in * * * retaining defendant Winters as a security guard in one or more of the following particulars:

" * * * * *

"c. In failing to adequately investigate allegations against defendant Winters that he sexually abused shoplifting suspects, and engaged in inappropriate sexual advances toward employees * * *.

" * * * * *

"d. In failing to discharge defendant Winters upon learning of his misconduct toward women, including the previous allegation of sexual abuse of a shop lifting suspect, which arose in [sic ] or about July 1989.

" * * * * *

"Count Two--Negligent Supervision

" * * * * *

"(29)

"Defendant May was negligent in its supervision of defendant Winters, in one or more of the following particulars:

"a. In allowing defendant Winters to question female suspects in private without an additional person present;

"b. In failing to adequately monitor offices where suspects were interrogated;

"c. In failing to discharge defendant Winters where a reasonable basis existed to believe that he represented a potential threat to members of the public;

"d. In failing to assure security guards worked in pairs at all times, particularly when reason existed to believe that a guard may present a danger to the public, or after being informed that a guard may have attempted to use his position to coerce sexual favors;

"e. In failing to take other reasonable steps to protect the public from abuse of power by defendant Winters * * *."

The trial court granted defendant's motion for summary judgment in its entirety and entered a judgment dismissing plaintiff's claims. We must determine whether the record on summary judgment establishes any issue of genuine fact with respect to plaintiff's claims.

As a preliminary matter, we consider the duty owed by defendant to plaintiff. Relying on Buchler v. Oregon Corrections Div., 316 Or. 499, 505, 853 P.2d 798 (1993), plaintiff contends that "where a special relationship exists between the defendant and the plaintiff, there is a duty to protect the plaintiff from injury by third parties." She observes that in Keeland v. Yamhill County, 24 Or.App. 85, 90, 545 P.2d 137 (1976), we cited with approval the approach taken by section 320 of the Restatement (Second) of Torts (1965), which provides:

"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 power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

"(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and

"(b) knows or should know of the necessity and opportunity for exercising such control."

Plaintiff argues that section 320 applies, because defendant took plaintiff into custody and should have acted reasonably to protect her against Winters. Defendant responds that plaintiff was a trespasser or a licensee and that it, therefore, cannot be liable to her for any negligence in hiring, retaining or supervising Winters, because its only duty to her was to avoid injuring her wilfully or wantonly.

Defendant's argument that plaintiff was a trespasser or licensee is without merit. Winters told plaintiff that she must return to the store and that he would place her in handcuffs if she did not return voluntarily. We are likewise not persuaded by plaintiff's argument that section 320 of the Restatement is applicable in this situation. Section 320 describes defendant's duty to exercise reasonable care to protect plaintiff from "third persons," not from defendant's own agents or employees. ² Our conclusion that section 320 is not applicable here, however, does not mean that defendant may not be liable to plaintiff. Defendant's liability depends on whether defendant unreasonably created the risk of harm that befell plaintiff. Buchler v. Oregon Corrections Div., supra, 316 Or. at 511, 853 P.2d 798. In making that determination:

" 'The jury is given a wide leeway in deciding whether the conduct in question falls above or below the standard of reasonable conduct deemed to have been set by the community. The court intervenes only when it can say that the actor's conduct clearly meets the standard or clearly falls below it.' " Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17-18, 734 P.2d 1326 (1987) (quoting Stewart v. Jefferson Plywood Co., 255 Or. 603, 607, 469 P.2d 783 (1970)).

Unless "no reasonable factfinder could find the risk foreseeable or defendant's conduct to have fallen below acceptable standards," Donaca v. Curry Co., 303 Or. 30, 38-39, 734 P.2d 1339 (1987), the grant of summary judgment was improper.

Plaintiff argues that defendant was negligent in its retention and supervision of Winters. She maintains that the harm that befell her was reasonably foreseeable, and that, in fact, defendant foresaw it. Defendant argues that it cannot be liable to plaintiff under a theory of negligent supervision or negligent retention, because it had no reason...