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Wade v. Kay Jewelers Inc.

United States District Court, D. Connecticut

March 27, 2019

FABIAN WADE, Plaintiff,


          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 ...

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