United States District Court, D. Connecticut
RULING ON MOTIONS FOR SUMMARY JUDGMENT
Michael P. Shea, U.S.D.J.
This
suit arises out of a March 18, 2017 incident at the Buckland
Hills Mall in Manchester, Connecticut, in which employees at
a Kay Jewelers store misidentified Plaintiff Fabian Wade and
summoned mall security, which called the police. Wade was
then briefly questioned by the police before he was allowed
to proceed on his way. Wade sued the owner of the Kay
Jewelers store, Defendant Sterling Jewelers, Inc.
(“Sterling”), the owner of the Buckland Hills
Mall, GGP, Inc. (“GGP”), and numerous Jane and
John Does alleged to be security guards at the mall or
employees of the Kay Jewelers store. (ECF No. 36.) GGP in
turn brought a third-party complaint against the employer of
the mall security personnel, Professional Security
Consultants, Inc. (“PSC”). I previously granted
in part and denied in part the defendants' motions to
dismiss. (ECF No. 105.) As a result, Wade has three remaining
claims against GGP, all under state law: (1) false
imprisonment; (2) negligent infliction of emotional distress;
and (3) negligent supervision. (Id. at 29.) GGP in
turn has two remaining claims against PSC for common law and
contractual indemnification. (Id.)
Both
GGP and PSC now move for summary judgment. (ECF Nos. 95, 97.)
GGP argues that because PSC contracted with GGP to provide
security services at the Buckland Hills Mall, PSC is an
independent contractor and thus GGP may not be held liable
for any of Wade's claims, which are based on acts by
PSC's employees. (See ECF No. 97 at 1-2; ECF No. 97-1 at
12-18.) GGP further argues that even if it can be held liable
for the torts of PSC's employees, it is nonetheless
entitled to summary judgment on Wade's false
imprisonment, negligent infliction of emotional distress, and
negligent supervision claims against it. (ECF No. 97 at 2-3.)
For the reasons that follow, I GRANT GGP's motion for
summary judgment (ECF No. 97), and thus DENY PSC's motion
for summary judgment as moot (ECF No. 95).[1]
I.
Factual Background
The
facts set forth below are taken from the parties' Local
Rule 56(a) statements and supporting exhibits and are
undisputed unless otherwise noted.
A.
Relationship between GGP and PSC
GGP,
the owner of the Buckland Hills Mall, contracted with PSC
“to provide security services for the Buckland Hills
Mall through a Security Agreement which specifically
warranted that [PSC] was an independent contractor and that
[PSC] employees were not employees of Shoppes at Buckland
Hills or GGP.” (ECF No. 97-11, GGP's Local Rule
56(a)1 Statement (“Def.'s L.R. 56(a)1 Stmt.”)
at ¶ 12; ECF No. 102-1, Plaintiff's Local Rule
56(a)2 Statement (“Pl.'s L.R. 56(a)2 Stmt.”)
at ¶ 12 (admitting same); see ECF No. 97-10, Exhibit A
to Exhibit I, Security Agreement attached to Affidavit of
Alfred K. Sherwood, at ¶¶ 3(E)(3), 9(G)
(hereinafter “Sec. Agreement”).) That agreement,
dated May 29, 2015, is between the Shoppes at Buckland Hills,
LLC and PSC, though a GGP-related entity agreed to represent
the Shoppes at Buckland Hills, LLC in “all matters
covered by th[e] agreement.” (ECF No. 97-10 at 4; Sec.
Agreement. ¶ 3(C).) For the purposes of this motion, I
construe references to both the Shoppes at Buckland Hills,
LLC and the GGP-related entity in the agreement as
“GGP, ” as neither party contends the distinction
matters.
GGP
agreed to “engage[] [PSC] to provide security services
in accordance with the terms of this Agreement.” (Sec.
Agreement. ¶ 3(A).) The Security Agreement provided
details about PSC's management obligations in paragraph
3(D). Specifically, paragraph 3(D)(1) provides that PSC would
establish a dedicated management team:
Dedicated GGP Management Team. [PSC] shall establish a
corporate management group dedicated to the [Buckland Hills
Mall] and other properties owned by [GGP's] affiliates
(“Dedicated Team”). The Dedicated Team shall be
responsible for fulfillment of [GGP's] performance
standards. The Dedicated Team shall be comprised of a
VP/General Manager and/or Regional/Group Managers.
(Sec. Agreement ¶ 3(D)(1).) Paragraph 3(D)(2) provides
for PSC managers' general oversight responsibilities and
their permitted management hours:
Program Oversight, Property Visits, Contacts. [PSC's]
Regional/Group Managers are to be security practitioners
responsible for the overall success of the on-site security
program and the execution of all applicable requirements set
forth in this Agreement. The Dedicated Team will make regular
visits to the Property and regularly communicate with [GGP]
property Manager (“Property Manager”) and the GGP
Corporate Security Director to solicit feedback. Unless
otherwise approved in advance in writing by the GGP VP of
Security, [PSC] will provide dedicated management groups
solely servicing GGP malls, and each assigned regional
manager shall manage no more than 8, 000 hours of security
[c]overage per week. Any regional manager exceeding 8, 000
hours of security coverage per week will require a written
exception from the GGP VP of Security.
(Sec. Agreement ¶ 3(D)(1).) Paragraph 3(D)(5) provides
in relevant part for PSC's obligations to train its
employees on GGP's CCTV system:
CCTV System Knowledge. [PSC] will provide and maintain at its
corporate office at least one dedicated CCTV master trainer
for [GGP's] American Dynamics' CCTV systems. The
master trainer will be responsible for overseeing the
training program for Contractor's staff assigned to
operate [GGP's] CCTV systems. . . .
(Sec. Agreement ¶ 3(D)(5).)
Paragraph
3(E) set requirements for PSC's “On-Site
Personnel.” (Id. ¶ 3(E).) In particular,
paragraph 3(E)(1) provides in relevant part:
Security Staff. [PSC] shall provide a stable staff that is
trained and capable of providing the Services. Subject to the
specific staffing requirements outlined in Exhibit A, [PSC]
will provide an on-site security manager (“Security
Manager”), assistant security manager, supervisors,
CCTV operators/dispatchers, security officers, and police
officers, as applicable. [. . .]
(Sec. Agreement. ¶ 3(E)(1).) Exhibit A is attached to
the Security Agreement and is entitled “Property
Staffing Agreement and Billing Rates.” (ECF No. 97-10
at 27-28.) It contains an “[a]nnual [e]stimate”
for security at the Buckland Hills Mall and includes tables
of various security positions with “[w]age [r]ate[s],
” “[b]ill rate[s], ” “[w]eekly
[h]ours, ” and “[a]nnual [c]ost.” (ECF No.
97-10 at 27-28.)
In
addition, Paragraph 3(E)(3) states explicitly that PSC's
employees are not GGP's employees. (Sec. Agreement.
¶ 3(E)(3) (“[PSC's] employees are NOT
employees of [GGP]. [PSC's] security staff shall be
employees of [PSC] or, to the extent required by state or
local laws or regulations, employees of any entity controlled
by or under common control with [PSC].”).) This
provision also provides that in the usual course, “the
[GGP] Property Manager, or his designees, will make
reasonable attempts to communicate security related requests
or assignments to the on-site [PSC] Security Manager or a
designated security supervisor.” (Id.)
Nonetheless, “on occasion [such communications] may not
be timely or practicable and requests may be communicated
directly to a non-supervisor employee.” (Id.)
The parties agreed that these “occasions will not
constitute a co-employment situation.” (Id.)
This
paragraph also divides the parties' responsibilities in
hiring, suspending, and reassigning security officers. In
particular, while Paragraph 3(E)(9) provides in relevant part
that PSC is responsible for hiring security officers for the
Buckland Hills Mall, Paragraph 3(E)(10) directs that PSC
“shall suspend” any security staff member from
duties at the Buckland Hills Mall if they are under
investigation or determined to have committed a “crime
or violation of public trust.” (Sec. Agreement. ¶
3(E)(9), (10).) Moreover, in Paragraph 3(E)(11), PSC agreed
that “upon request by [GGP], it will reassign any of
its employees who, in the opinion of [GGP], are not
satisfactory provided that the reassignment is performance
based.” (Sec. Agreement. ¶ 3(E)(11).)
Paragraph
3(F) sets requirements for PSC's “On-Site Security
Management.” (Sec. Agreement ¶ 3(F).) The second
subparagraph of that section provides the responsibilities of
the PSC ‘security manager':
2. Security Manager. The Security Manager is to be a security
practitioner responsible for the daily operation of the
security program and the execution of contract requirements.
The on-site Security Manager must understand local
laws/violations commonly encountered in shopping center
environments and must be able to analyze crime reports and
identify trending. The Security Manager must be capable of
delivering training, developing training assistants, and
maintaining the training program in accordance with the
requirements set forth in Exhibit B. [. . .]
(Sec. Agreement. ¶ 3(F)(2).)
Paragraph
3(G), captioned “Deployment/Scheduling, ”
provides PSC's and GGP's obligations in setting
staffing levels. The first two subparagraphs of the section
provide in relevant part as follows:
1. Staffing Levels/Deployment/Staffing Template. [GGP] and
[PSC] shall agree upon the weekly deployment of staffing
template needed to provide the [security services] to the
[Buckland Hills Mall].
The agreed upon weekly staffing deployment template for each
day of the week and each hour of the day shall be documented
in [GGP's] required format in Exhibit A. The staffing
level shall be conclusively deemed for all purposes to be a
material representation by [PSC] to [GGP] that the staffing
deployment is one which shall provide the [security services]
to the [Buckland Hills Mall] in accordance with the terms
hereof. [PSC] may make temporary changes to the weekly staff
deployment to address incident trending or special events,
but may not exceed the allocated weekly security hours
without prior written approval from the [GGP] Property
Manager. [PSC] may not make permanent or extended changes to
the weekly staffing deployment template without consent of
the [GGP] Property Manager and the GGP Corporate Security
Director. It is understood that the agreed upon weekly staff
deployment is a flexible template and at times that [PSC] may
operate with different staffing levels due to training,
administrative duties, and scheduling conflicts. [. . .]
2. Staffing. [PSC] shall provide the [GGP] Property Manager
with a staffing proposal that reflects the agreed upon weekly
staffing deployment. The staffing proposal shall set forth
the approved positions and corresponding hours, wage rates,
bill rates and line total, weekly and annual totals. The
staffing proposal will also set forth estimated charges for
staff working on holidays (as approved in this Agreement),
special hours to be utilized during holiday season, taxes,
and any other charge agreed to by the [GGP] Property Manager
or the GGP Corporate Security Director. Any change proposed
[by PSC] shall only be effective if approved in writing by
the GGP Corporate Security Director or the [GGP] Property
Manager.
(Sec. Agreement. ¶ 3(G)(1), (2).)
Next,
Paragraph 3(I), captioned “Customer Experience, ”
provides that GGP “has adopted a customer experience
objective to further its stated corporate mission a form of
which is attached to this Agreement as Exhibit C, ” and
that PSC is required to take reasonable steps to ensure that
its employees follow these objectives. (See Sec. Agreement
¶ 3(I).) Exhibit C to the agreement, captioned
“Customer Service Guidelines, ” provides in its
introduction that:
The GGP Brand is about connecting with each of our Guests;
offering them world-class retail and restaurants; but also
unexpected services, amenities, and conveniences; and truly
exhilarating events and activities.
[. . .]
All of our Guests deserve our total commitment and respect.
Each deserves a helping hand whenever we can extend one. Each
deserves our kindness, our support and our empathy.
When we talk about surprising and delighting our Guests, we
mean all of them. YOU are the face of the mall experience.
YOU are its expression and its fulfillment.
(ECF No. 97-10 at 33.)
Paragraph
3(J), “Training, ” provides in relevant part that
PSC would either develop training courses according to a
GGP-prescribed set of core classes or administer proficiency
tests on these subjects:
1. Officer Training. [PSC] shall promote and provide a
trained and capable security staff. [PSC] shall develop and
deliver training courses as set forth on the attached Exhibit
B to all security officers. [. . .] [GGP] may expand the
training requirements as ...