McCullough v. Liberty Heights Health & Rehab. Ctr.

• Decision Date: 10 November 2011
• Docket Number: Civil Case No. L–10–2537.
• Citation: 830 F.Supp.2d 94
• Parties: Juliana McCULLOUGH, Plaintiff v. LIBERTY HEIGHTS HEALTH & REHABILITATION CENTER, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

830 F.Supp.2d 94

Juliana McCULLOUGH, Plaintiff

v.LIBERTY HEIGHTS HEALTH & REHABILITATION CENTER, et al., Defendants.

Civil Case No. L–10–2537.

United States District Court, D. Maryland.

Nov. 10, 2011.

Vincent Uwakwe Iwudike, Law Firm of Iwudike and Associates LLC, Towson, MD, for Plaintiff.

Claire J. Kim, Edward C. Bacon, Bacon Thornton and Palmer LLP, Greenbelt, MD, Brian J. Kelly, Frantz Ward LLP, Cleveland, OH, for Defendants.

MEMORANDUM

BENSON EVERETT LEGG, District Judge.

Plaintiff Juliana McCullough brings this tort action against her former employer, Liberty Heights Health & Rehabilitation Center, and its operator, Liberty Leasing Co. LLC (collectively “Liberty Heights”) Now pending before the Court is Libery Heights's Motion for Summary Judgment. Docket No. 31. The issues have been comprehensively briefed, and no hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated herein, the Motion will be GRANTED.

I. BACKGROUND

The following facts are stated in the light most favorable to McCullough as the non-moving party. At the time of the events in question, McCullough was employed as a Unit Nursing Manage at Liberty Heights. Sometime in early June of 2010, McCullough began searching for a housekeeper, and a friend recommended Judith Chase. McCullough contacted Chase, and Chase began working for McCullough at McCullough's residence.

Soon thereafter a dispute arose between McCullough and Chase over the payment of wages. The specifics of that disputed are not relevant here. The morning of June 16, 2010, Chase telephoned McCullough to say that she was coming to McCullough's office to discuss payment. McCullough objected, and protested that any such discussion should take place over the phone. At no point did McCullough tell anyone at Liberty Heights about her dispute with Chase or Chase's threat to show up there. In specific, McCullough never expressed concern or requested that Liberty Heights take measures to protect her against Chase, such as denying Chase entry to the building.

At approximately 12:30 p.m. Karen Marshall, a Liberty Heights employee, was leaving the facility for a meeting when she noticed McCullough and Chase fighting in the parking lot. According to Marshall, Chase attempted to get into her car, on both the driver's and passenger's side, but McCullough repeatedly pulled her from the vehicle. When the confrontation degenerated into blows and hair pulling, Marshall went inside and informed Sandra Durham, Liberty Heights' Executive Director.

Durham went to investigate and found the two women yelling at one another. She stepped between the two, ordered McCullough to go back inside, and told Chase to leave the premises. Instead, Chase said something to the “effect of I want my money” and struck Durham in the forehead. The record provides scant detail of the ensuing altercation, but eventually the police were summoned and restored order. McCullough emerged with bruises and a bite to her right index finger.

Following the incident Durham suspended McCullough and, following an investigation, terminated her employment. The stated bases for termination were insubordination, in the form of McCullough's refusal to heed Durham's orders to return inside, and engaging in workplace violence. See Def.'s Mot. Summ. J. Ex. 1B.

Soon thereafter, McCullough filed the instant suit against Liberty Heights. Her Amended Complaint contains four counts: Negligence (Count I), Vicarious Liability (Count II), Battery (Count III), and Loss of Consortium (Count IV). McCullough argues that Liberty Heights had a duty to provide a safe work environment, which it breached by allowing Chase to attack her. McCullough further argues that Durham committed battery by attempting to restraining her during the fight with Chase. Liberty Heights now moves for summary judgment on all claims.

II. LEGAL STANDARD

The Court may grant summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (recognizing that trial judges have “an affirmative obligation” to prevent factually unsupported claims and defenses from proceeding to trial). Nevertheless, in determining whether there is a genuine issue of material fact, the Court views the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.1987).

III. ANALYSIS

a. Vicarious Liability and Loss of Consortium

Two of McCullough's claims may be dealt with summarily. First, Count II of the Amended Complaint purports to state a claim for “Vicarious Liability.” Vicarious liability is, of course, not an independent cause of action, but rather a theory of assigning liability. See, e.g., Radbod v. Arias, No. RDB 10–897, 2011 WL 630752 at *3 n. 3 (D.Md. Feb. 11, 2011) (citing Williams v. Prince George's Cnty., 112 Md.App. 526, 685 A.2d 884, 895 (Md.Ct.Spec.App.1996)). Count II is, therefore, not really a claim at all.

Second, Count IV of the Amended Complaint seeks recovery for Loss of Consortium. It is black letter law that loss of consortium is an injury to the marital unit and that, as such, it may only be brought as a joint action by both spouses. Deems v. W. Maryland Ry. Co., 247 Md. 95, 115, 231 A.2d 514 (1967); see also Butcher v. Robertshaw Controls Co., 550 F.Supp. 692, 705 (D.Md.1981) (“The law is clear in Maryland that a claim for loss of consortium is brought to recover for injury to the marital unit, and is brought by both spouses for the injury to them both ....”) (citing Deems ). Despite this obvious requirement, McCullough's husband, Ben Nwakamma, has not been made a party to this action. Liberty Heights is, therefore, entitled to summary judgment on Count IV.¹

b. Negligence and Battery Claims.

Count I of the Amended Complaint charges negligence on the part of Liberty Heights. McCullough alleges that “[t]here have been numerous crimes and criminal activities at liberty Heights health and Rehabilitation Center in particular and in Baltimore City in General,” and maintains that Liberty Heights was under a duty to provide security guards or otherwise protect the facility. Am. Compl. 4–5, Docket No. 12.

Count III seeks to hold Liberty Heights liable for the alleged battery committed by Sandra Durham in restraining McCullough. McCullough claims that Durham “in an attempt to stop the fight held Mrs. McCullough and restrained her long enough for her to be bitten on her index finger & bruises inflicted all over her body by her attacker,” and that “[s]uch restraining of the Plaintiff's body by Ms. Durham was intentional, harmful & offensive.”

It is unlikely that McCullough could succeed on the merits on either of these counts. As to her negligence claim, McCullough has offered no comprehensible explanation as to why Liberty Heights should be held liable for an apparently unforeseeable attack arising from a personal dispute. Cf., Jackson v. A.M.F. Bowling Ctrs., Inc., 128 F.Supp.2d 307, 311 (D.Md.2001) (business owner's duty to protect invitee from risks arising out of intentional or criminal acts of third parties does not require owner to take precautions against a sudden attack from a third person which he has no reason to anticipate); McGuiness v. Brink's Inc., 60 F.Supp.2d 496, 499 (D.Md.1999) (even if duty is owed, unforeseeable criminal acts of a third party break the chain of causation, relieving the original negligent actor of liability); Corinaldi v. Columbia Courtyard, Inc., 162 Md.App. 207, 873 A.2d 483, 493 (Md.Ct.Spec.App.2005) (innkeeper has a duty to take affirmative action to protect guests from assault by a third party only if, in exercise of due care, he knew or should have known that the assault was imminent, well enough in advance to have prevented it).

Chase was not a stranger committing a random attack on McCullough. McCullough and Chase were involved in a wage dispute that had no connection with Liberty Heights. McCullough knew that Chase was coming, voluntarily went to the parking lot to meet her, and even physically prevented her from leaving by pulling her from her car. As mentioned, McCullough ever told Liberty Heights that Chase was coming, or that Chase might pose a threat.

Nor does the record contain any evidence that the parking lot of Liberty Heights was a generally dangerous place, other than McCullough's own anecdotal testimony that she once witnessed a carjacking. McCullough's opposition brief claims that “[o]n several occasions clients have engaged in the breach of peace against each other and police had to be called to provide peace and order” and that “[t]here have been reports of cars and other personal properties stolen within the premises and compounds of the employer's facility,” but she provides no support whatsoever for these assertions. Pl.'s Opp. 9, Docket No. 34. Similarly, McCullough claimed at deposition that a camera outside the building was not working, but she has offered no evidence on this point. In fact, McCullough has submitted no evidence of any kind. The entire record is composed of submissions by Liberty Heights in connection with its Motion for Summary Judgment.

McCullough's battery claim would fare no better. Durham should be commended for risking her own safety. She attempted to prevent a fight and received a blow to the head for her efforts. Nevertheless, McCullough has sued her for battery, apparently on the sole premise that that some touching was objectionable “[b]ecause she prevented me from hitting back.” McCullough Dep. 113:8–9.

In order to constitute a battery, a touching must be...