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 .

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.,

9 , 31 (1st Cir. 2004) (quoting T A G / I C I B Servs., Inc. v . Pan Am.

Grain Co.,

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.,

2 0 , 224 (1st Cir. 2004) (quoting

Arruda v . Sears, Roebuck & Co.,

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.,

(1st Cir. 2004) (quoting

Correa-Martinez v . Arrillaga-Belendez,

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.

(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

(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

(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

(a) . . . or otherwise,

and costs of this action.” The ADA, however, does not provide

for money damages. Goodwin v . C.N.J., Inc.,

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.

(citing

Lewis v . Cont’l Bank Corp.,

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,

(1995) (citing Carter v .

Berlin Mills Co.,

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.”

(citing Thomas v . Harrington,

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.’”

(citing Thomas,

). “‘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.”

(citing Carr v . Merrimack

Farmers Exch.,

(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,

(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,

¶ 5b (collecting cases); see also Powell v . City &

County of Denver,

, 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.

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