Abbott v . Salem, N H , et a l . 05-CV-127-SM 03/12/07 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Rhonda S . Abbott, Plaintiff
v. Civil N o . 05-cv-127-SM Opinion N o . 2007 DNH 030 Town of Salem, New Hampshire; Prints Plus, Inc.; Control Security Services, Inc.; Simon Property Group, L P ; Louis Currier; Jeffrey Ouellette; Kristin Fili; Nicholas J. Tela; Greg Weeden; and Denise L . Smith, Defendants
O R D E R
Rhonda Abbott asserts claims under the Americans With
Disabilities Act (“ADA”) and New Hampshire common law, for
damages arising from an incident occurring at the Prints Plus
store at the Mall at Rockingham Park. Plaintiff alleges she was
forcibly removed from the store by private security guards, and
arrested by Salem police officers. Before the court is a motion
to dismiss Counts V I , VI* 1 , and VII filed by defendant Simon
Property Group, L P . Plaintiff objects. For the reasons set
forth below, defendant’s motion is granted.
1 Plaintiff’s third amended complaint contains two counts labeled “Count VI.” For purposes of this motion, the court refers to the first (assault) as Count VI and the second (unlawful arrest and false imprisonment) as Count V I * . The Legal Standard
A claim is subject to dismissal under F E D . R . C I V . P .
12(b)(6) when the plaintiff “fail[s] to state a claim upon which
relief can be granted.” The inquiry under Rule 12(b)(6) is
limited, focusing not on “whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims.” Scheuer v . Rhodes, 416 U . S . 2 3 2 , 236 (1974).
All facts pled in the complaint are accepted as true and
inferences are drawn in the light most favorable to the
plaintiff. See, e.g., Citibank v . Grupo Cupey, Inc., 382 F.3d
2 9 , 31 (1st Cir. 2004) (quoting T A G / I C I B Servs., Inc. v . Pan Am.
Grain Co., 215 F.3d 1 7 2 , 175 (1st Cir. 2000)). But, claims
consisting of “bald assertions” or “unsupportable conclusions”
will be rejected. United States ex rel. Karvelas v . Melrose-
Wakefield Hosp., 360 F.3d 2 2 0 , 224 (1st Cir. 2004) (quoting
Arruda v . Sears, Roebuck & Co., 310 F.3d 1 3 , 18 (1st Cir. 2002)).
“ A district court may grant a 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted only if
‘it clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory.’” Pomerleau v . W .
Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004) (quoting
Correa-Martinez v . Arrillaga-Belendez, 903 F.2d 4 9 , 52 (1st Cir.
1990)).
2 Factual Background
The facts, as Abbott describes them in her third amended
complaint, and construed in the light most favorable to her, are
as follows.
Abbott suffers from a hearing impairment. On November 3 ,
2001, she went to the Prints Plus, Inc. store (“Prints Plus”) in
the Mall at Rockingham Park (“the mall”) to pick up a painting
she had framed. The mall in which Prints Plus is located is
managed by Simon Property Group, LP (“Simon”). Denise Smith, a
clerk at Prints Plus, was unable to find Abbott’s painting.
Abbott asked Smith if she could look for it herself. Abbott had
difficulty hearing Smith’s response, and asked for paper and a
pen, so she could communicate in writing. Smith, however,
ordered Abbott from the store. Abbott again had difficulty
hearing and understanding Smith, and did not leave the store.
Smith called for mall security, which is provided by Control
Security Services, Inc. (“Control”), under a contract with Simon.
Responding to Smith’s call, Louis Currier went to the Prints
Plus store, accompanied by Greg Weeden and Nicholas Tela.
Currier was an off-duty Salem police officer employed by Control.
Weeden was Control’s Security Director, and Tela was Control’s
Security Supervisor. When Currier, Weeden, and Tela arrived,
3 Abbott tried to explain the situation to them, and asked them for
a pen and paper. They also refused, and told Abbott to leave the
store. Then, at the direction of Weeden and Tela, Currier placed
Abbott in handcuffs. In doing s o , Currier allegedly threw Abbott
to the floor, causing her to strike her head on the wall.
After he placed Abbott in handcuffs, Currier called Jeffrey
Ouellette for additional assistance. Like Currier, Ouellette was
an off-duty Salem police officer employed by Control. When
Ouellette arrived, Abbott also asked him for a pen and paper, but
he refused as well. Then Currier, Ouellette, Weeden, and Tela
escorted Abbott through the Mall in handcuffs. She was placed in
a Salem police cruiser, driven by Officer Kristin Fili. Officer
Fili, in turn, transported Abbott to the Salem police station.
En route, Officer Fili refused to communicate with Abbott, and at
the police station, Fili and other officers allegedly taunted
Abbott regarding her hearing impairment, or so Abbott claims.
Abbott filed suit by way of complaint dated April 7 , 2005
alleging violations of the ADA, assault, unlawful arrest, and
false imprisonment against each of the defendants. Of relevance
here are Count V I , asserting that Simon violated Abbot’s rights
under the ADA, and Counts VI* and VII which allege that Simon,
4 through its security contractor, Control, unlawfully arrested and
detained Abbott.
Discussion
Simon moves to dismiss all three counts against i t , arguing
that Abbot’s claims do not involve Simon or its personnel.
Abbott asserts that Simon is vicariously liable for Control’s
actions.
I. ADA Violation (Count VI)
Title III of the Americans with Disabilities Act provides,
in part:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases t o ) , or operates a place of public accommodation.
42 U.S.C. § 12182(a). Abbott argues that Simon is vicariously
liable because its security contractor, Control, failed to
provide her with the means for effective communication as
required under the ADA. See 42 U.S.C. § 12182(b)(2)(A)(iii)
(requiring places of public accommodation to provide auxiliary
aids and services to accommodate those with disabilities). Simon
5 operates a place of public accommodation for purposes of the ADA.
See 42 U.S.C. § 12181(7)(E). The only contested issue is whether
Simon can be held vicariously liable for ADA violations by an
independent contractor.
The court need not reach the vicarious liability issue,
however, because plaintiff’s claim fails for a different reason.
In Count VI of her third amended complaint, Abbott seeks
“judgment against the defendant, Simon, for . . . damages under
the ADA as set forth in 42 U.S.C.
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Abbott v . Salem, N H , et a l . 05-CV-127-SM 03/12/07 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Rhonda S . Abbott, Plaintiff
v. Civil N o . 05-cv-127-SM Opinion N o . 2007 DNH 030 Town of Salem, New Hampshire; Prints Plus, Inc.; Control Security Services, Inc.; Simon Property Group, L P ; Louis Currier; Jeffrey Ouellette; Kristin Fili; Nicholas J. Tela; Greg Weeden; and Denise L . Smith, Defendants
O R D E R
Rhonda Abbott asserts claims under the Americans With
Disabilities Act (“ADA”) and New Hampshire common law, for
damages arising from an incident occurring at the Prints Plus
store at the Mall at Rockingham Park. Plaintiff alleges she was
forcibly removed from the store by private security guards, and
arrested by Salem police officers. Before the court is a motion
to dismiss Counts V I , VI* 1 , and VII filed by defendant Simon
Property Group, L P . Plaintiff objects. For the reasons set
forth below, defendant’s motion is granted.
1 Plaintiff’s third amended complaint contains two counts labeled “Count VI.” For purposes of this motion, the court refers to the first (assault) as Count VI and the second (unlawful arrest and false imprisonment) as Count V I * . The Legal Standard
A claim is subject to dismissal under F E D . R . C I V . P .
12(b)(6) when the plaintiff “fail[s] to state a claim upon which
relief can be granted.” The inquiry under Rule 12(b)(6) is
limited, focusing not on “whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims.” Scheuer v . Rhodes, 416 U . S . 2 3 2 , 236 (1974).
All facts pled in the complaint are accepted as true and
inferences are drawn in the light most favorable to the
plaintiff. See, e.g., Citibank v . Grupo Cupey, Inc., 382 F.3d
2 9 , 31 (1st Cir. 2004) (quoting T A G / I C I B Servs., Inc. v . Pan Am.
Grain Co., 215 F.3d 1 7 2 , 175 (1st Cir. 2000)). But, claims
consisting of “bald assertions” or “unsupportable conclusions”
will be rejected. United States ex rel. Karvelas v . Melrose-
Wakefield Hosp., 360 F.3d 2 2 0 , 224 (1st Cir. 2004) (quoting
Arruda v . Sears, Roebuck & Co., 310 F.3d 1 3 , 18 (1st Cir. 2002)).
“ A district court may grant a 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted only if
‘it clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory.’” Pomerleau v . W .
Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004) (quoting
Correa-Martinez v . Arrillaga-Belendez, 903 F.2d 4 9 , 52 (1st Cir.
1990)).
2 Factual Background
The facts, as Abbott describes them in her third amended
complaint, and construed in the light most favorable to her, are
as follows.
Abbott suffers from a hearing impairment. On November 3 ,
2001, she went to the Prints Plus, Inc. store (“Prints Plus”) in
the Mall at Rockingham Park (“the mall”) to pick up a painting
she had framed. The mall in which Prints Plus is located is
managed by Simon Property Group, LP (“Simon”). Denise Smith, a
clerk at Prints Plus, was unable to find Abbott’s painting.
Abbott asked Smith if she could look for it herself. Abbott had
difficulty hearing Smith’s response, and asked for paper and a
pen, so she could communicate in writing. Smith, however,
ordered Abbott from the store. Abbott again had difficulty
hearing and understanding Smith, and did not leave the store.
Smith called for mall security, which is provided by Control
Security Services, Inc. (“Control”), under a contract with Simon.
Responding to Smith’s call, Louis Currier went to the Prints
Plus store, accompanied by Greg Weeden and Nicholas Tela.
Currier was an off-duty Salem police officer employed by Control.
Weeden was Control’s Security Director, and Tela was Control’s
Security Supervisor. When Currier, Weeden, and Tela arrived,
3 Abbott tried to explain the situation to them, and asked them for
a pen and paper. They also refused, and told Abbott to leave the
store. Then, at the direction of Weeden and Tela, Currier placed
Abbott in handcuffs. In doing s o , Currier allegedly threw Abbott
to the floor, causing her to strike her head on the wall.
After he placed Abbott in handcuffs, Currier called Jeffrey
Ouellette for additional assistance. Like Currier, Ouellette was
an off-duty Salem police officer employed by Control. When
Ouellette arrived, Abbott also asked him for a pen and paper, but
he refused as well. Then Currier, Ouellette, Weeden, and Tela
escorted Abbott through the Mall in handcuffs. She was placed in
a Salem police cruiser, driven by Officer Kristin Fili. Officer
Fili, in turn, transported Abbott to the Salem police station.
En route, Officer Fili refused to communicate with Abbott, and at
the police station, Fili and other officers allegedly taunted
Abbott regarding her hearing impairment, or so Abbott claims.
Abbott filed suit by way of complaint dated April 7 , 2005
alleging violations of the ADA, assault, unlawful arrest, and
false imprisonment against each of the defendants. Of relevance
here are Count V I , asserting that Simon violated Abbot’s rights
under the ADA, and Counts VI* and VII which allege that Simon,
4 through its security contractor, Control, unlawfully arrested and
detained Abbott.
Discussion
Simon moves to dismiss all three counts against i t , arguing
that Abbot’s claims do not involve Simon or its personnel.
Abbott asserts that Simon is vicariously liable for Control’s
actions.
I. ADA Violation (Count VI)
Title III of the Americans with Disabilities Act provides,
in part:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases t o ) , or operates a place of public accommodation.
42 U.S.C. § 12182(a). Abbott argues that Simon is vicariously
liable because its security contractor, Control, failed to
provide her with the means for effective communication as
required under the ADA. See 42 U.S.C. § 12182(b)(2)(A)(iii)
(requiring places of public accommodation to provide auxiliary
aids and services to accommodate those with disabilities). Simon
5 operates a place of public accommodation for purposes of the ADA.
See 42 U.S.C. § 12181(7)(E). The only contested issue is whether
Simon can be held vicariously liable for ADA violations by an
independent contractor.
The court need not reach the vicarious liability issue,
however, because plaintiff’s claim fails for a different reason.
In Count VI of her third amended complaint, Abbott seeks
“judgment against the defendant, Simon, for . . . damages under
the ADA as set forth in 42 U.S.C. § 12188(a) . . . or otherwise,
and costs of this action.” The ADA, however, does not provide
for money damages. Goodwin v . C.N.J., Inc., 436 F.3d 4 4 , 50 (1st
Cir. 2006) (“[The] unbroken skein of cases makes manifest that
money damages are not an option for private parties suing under
Title III of the ADA”). Further, the Court of Appeals has held
that “[a] litigant’s interest in a possible award of attorneys’
fees is not enough to create a justiciable case or controversy if
none exists on the merits of the underlying claim. Id. (citing
Lewis v . Cont’l Bank Corp., 494 U.S. 4 7 2 , 480 (1990)).
Thus, because Title III of the ADA does not provide for
monetary damages, and because Abbott’s third amended complaint
6 does not assert facts warranting injunctive relief,2 Simon is
entitled to dismissal of Count V I .
II. Assault (Count VI*) and Unlawful Arrest and False Imprisonment (Count V I I ) .
Simon asserts that Abbott’s claims for assault (Count VI*)
and unlawful arrest and false imprisonment (Count VII) fail
because she has not alleged that any of Simon’s employees were
involved in the improper conduct. Abbott responds that Simon is
liable on the theory of respondeat superior.
In New Hampshire, “[r]espondeat superior, or vicarious
liability, ordinarily does not extend to torts by independent
contractors because the employer reserves no control or power of
discretion over the execution of the work.” Arthur v . Holy
Rosary Credit Union, 139 N.H. 463, 465 (1995) (citing Carter v .
Berlin Mills Co., 58 N.H. 5 2 , 53-54 (1876)). There is an
exception to this general rule, however, “when the independent
contractor is engaged to perform work that is dangerous in
2 Abbott was advised that Title III of the ADA does not provide for monetary damages in the court’s order dated February 2 , 2006 (docket n o . 50) wherein the court dismissed ADA claims against Currier and Ouellette. Although the claims were dismissed for a separate reason, the court explained that Title III of the ADA does not provide for the sort of relief that Abbott sought. Abbott, nevertheless, reiterated her ADA claims against Simon in her third amended complaint.
7 itself.” Id. (citing Thomas v . Harrington, 72 N.H. 4 5 , 46-47
(1903)). This so-called inherent danger doctrine “applies only
when ‘the danger [arises] directly from the work . . . required
to be done, and not from the negligent manner of its
performance.’” Id. (citing Thomas, 72 N.H. at 46-47). “‘The
phrase inherently dangerous as applied to undertakings conducted
through independent contractors often implies work that is
dangerous even when conducted with reasonable care; . . . the
exception relating to such undertakings has principally been
applied in cases of demolition, excavation, and other clearly
dangerous activities.” Arthur at 465 (citing Carr v . Merrimack
Farmers Exch., 101 N.H. 445, 449 (1958)) (internal quotation
marks omitted).
Abbott makes broad, conclusory assertions that the
“maintenance of security within the [m]all involves dangerous
work” and that the “enforcement of security in the [m]all
involves work that is inherently dangerous,” (Pl.’s Opp. Mot.
Dismiss 3 ) , but cites to no New Hampshire or other authority to
support her contention. Although New Hampshire’s courts have not
had occasion to determine whether the provision of security
services constitutes an inherently dangerous activity, other
courts have held that it does not. See Schreiber v . Camm, 848 F.
Supp. 1170, 1177 (D.N.J. 1994) (“the use of armed security guards
8 to protect one’s property is not so inherently dangerous as to
confer a nondelegable duty upon the landowner”); Robert A .
Brazener, Annotation, Liability of one contracting for private
police or security service for acts of personnel supplied, 38
A.L.R. 3d 1332 ¶ 5b (collecting cases); see also Powell v . City &
County of Denver, 973 F. Supp. 1198, 1203 n . 3 (D. Colo. 1997)
(aptly noting that “[t]here is some irony in the proposition that
providing security is an inherently dangerous activity with
respect to third parties”).
Because Control’s provision of security services under
contract to Simon does not constitute an inherently dangerous
activity, Simon is not liable for torts committed by Control’s
employees. Accordingly, Simon is entitled to dismissal of Counts
V I , VI* and VII.
Conclusion
For the foregoing reasons, Simon Property Group, LP’s motion
to dismiss (document n o . 62) is granted and all claims against it
are dismissed.
9 SO ORDERED.
Steven J./McAuliffe Chief Judge
March 12, 2007
cc: William R. Sullivan, Jr., Esq. William R. Sullivan, Sr., Esq. Donald E. Gardner, Esq. Catherine M. Costanzo, Esq. John P. Coakley, Esq. Richard J. Riley, Esq. Debra L. Mayotte, Esq. Vincent A. Wenners, Jr., Esq. Meredith M. Lasna, Esq.