SARAH STOLICKER V KOHLS DEPARTMENT STORES INC (Dissenting Opinion)
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STATE OF MICHIGAN COURT OF APPEALS SARAH STOLICKER, UNPUBLISHED March 1, 2012 Plaintiff-Appellant, v KOHL S DEPARTMENT STORES, INC., and DARRYL DUNCAN, No. 302573 Oakland Circuit Court LC No. 2010-106938-NO Defendants-Appellees. Before: GLEICHER, P.J., and CAVANAGH and O CONNELL, JJ. GLEICHER, P.J. (dissenting). The common-law wrongful-conduct doctrine precludes a plaintiff from grounding her cause of action in her own illegal conduct. Sarah Stolicker s assault and battery claim stems from the conduct of defendant Darryl Duncan. Because Stolicker has not relied on her law violation to establish any of the predicates for her claim, it falls outside the wrongful-conduct doctrine. In holding otherwise, the majority not only misconstrues the underpinnings of the common-law doctrine, but also ignores two Michigan statutes that specifically authorize Stolicker s claim. More fundamentally, the Legislature has abrogated the wrongful-conduct rule, and it no longer applies in Michigan. For these reasons, I respectfully dissent. I. FACTS AND PROCEEDINGS Sarah Stolicker and her friend selected some clothing from a rack at Kohl s Department Store and entered a fitting room. There, they ripped the tags from the items and placed the clothing in Stolicker s purse. The pair then exited the store. Duncan, a Kohl s loss prevention officer, observed Stolicker behaving suspiciously. He confirmed with a sales associate that Stolicker and her friend had removed clothing from a fitting room without paying for it, and confronted Stolicker in the parking lot. According to Stolicker, Duncan failed to disclose his identity as a Kohl s employee. She ignored his effort to speak with her and resisted when he attempted to grab her purse. Stolicker described that Duncan tackled me to the ground and pushed me into my car door[.] She emerged from the fray with a fractured collarbone. The prosecutor charged her with third-degree retail fraud, MCL 750.356d(4), and assault and battery, MCL 750.81(1). Stolicker pleaded guilty to the retail fraud charge and was sentenced under the Holmes Youthful Trainee Act, MCL 762.14. The prosecutor dismissed the assault and battery count. -1- Stolicker then sued Duncan and Kohl s, asserting claims for common-law assault and battery, unreasonable use of force in violation of MCL 600.2917, intentional infliction of emotional distress, negligence, and negligent hiring and training. Duncan and Kohl s moved for summary disposition under MCR 2.116(C)(8) and (10), contending that the common-law wrongful-conduct rule barred Stolicker s claims. The circuit court granted summary disposition, adopting defendants wrongful-conduct arguments. The majority holds that because Stolicker admitted to shoplifting, the only potential factual issue that could have precluded summary disposition was whether plaintiff s shoplifting was a proximate cause of her injuries. Ante at 3. According to the majority, because plaintiff s shoplifting set in motion the chain of events that led to her injuries, the circuit court correctly applied the wrongful-conduct rule in dismissing her lawsuit. Ante at 4. II. ANALYSIS The majority s expansive application of the wrongful-conduct rule ignores that Stolicker s shoplifting did not cause her injury. Rather, a separate and distinct cause existed: Duncan s allegedly tortious behavior. The wrongful-conduct rule lacks relevance where a plaintiff s wrongdoing merely occasions an injury, rather than directly causes it. Furthermore, two Michigan statutes prove the inapplicability of the wrongful-conduct rule under the circumstances of this case. MCL 600.2917 explicitly recognizes a cause of action against a merchant for using unreasonable force in apprehending a shoplifter. MCL 600.2955b permits a person committing a felony to maintain a cause of action when injury results from a defendant s use of unreasonable force. But most critically, I believe that the wrongful-conduct rule no longer exists in Michigan. Our Legislature s enactment of comparative fault principles in MCL 600.2958 and MCL 600.6304 have displaced the common-law on this subject. A. THE MAJORITY S MISINTERPRETATION OF THE WRONGFUL-CONDUCT RULE Our Supreme Court scrutinized the common-law underpinnings of Michigan s wrongfulconduct rule in Orzel v Scott Drug Co, 449 Mich 550, 558; 537 NW2d 208 (1995). In Orzel, the plaintiff sued a pharmacy, claiming that it had negligently supplied him with a controlled substance. The plaintiff admitted that he had illegally purchased the drug from the pharmacy. Id. at 554-555. The Supreme Court held that the plaintiff s illegal conduct barred his claim. Id. at 576-577. In reaching this result, the Supreme Court methodically explored the common-law roots of the doctrine, as well as its limitations and exceptions. Id. at 561. At common law, a person could not maintain an action if its establishment required reliance in whole or in part, on an illegal or immoral act or transaction to which he is a party. Id. at 558, quoting 1A CJS, Actions, § 29, p 386. [A] similar common-law maxim, known as the doctrine of in pari delicto, also bars claims made by a plaintiff equally in the wrong as the defendant. Id., quoting 1A CJS, Actions, § 29, p 388. Taken together, these common-law principles form Michigan s wrongful-conduct rule. One important limitation on this judge-made rule involves the causal nexus between the plaintiff s illegal conduct and her asserted damages. Id. at 564. In Orzel, 449 Mich at 565, the Supreme Court explained that the wrongful-conduct rule incorporates the causation requirement set forth in Manning v Bishop of Marquette, 345 Mich 130; 76 NW2d 75 (1956). In -2- that case, the plaintiff played an illegal game of bingo and fell into a hole while leaving the premises, sustaining injury. Id. at 132. The Manning Court rejected the defendant s argument that, because the plaintiff s participation in an illegal bingo game proximately caused her fall, the wrongful-conduct rule barred her claim: [The plaintiff s] injury must have been suffered while and as a proximate result of committing an illegal act. The unlawful act must be at once the source of both his criminal responsibility and his civil right. The injury must be traceable to his own breach of the law and such breach must be an integral and essential part of his case. Where the violation of law is merely a condition and not a contributing cause of the injury, a recovery may be permitted. [Orzel, 449 Mich at 565 (alteration in original), quoting Manning, 345 Mich at 136.] In Orzel, the Supreme Court observed that the Court in Manning emphasized that [the plaintiff s] participation in the illegal bingo game had ended by the time she fell into the hole. Orzel, 449 Mich at 565.1 I cannot meaningfully distinguish Manning from this case. The Manning plaintiff s attendance at an illegal bingo game contributed to a chain of events that led to her injuries. Ante at 3. Stolicker s shoplifting similarly set in motion a chain of events resulting in the confrontation with Duncan. While today we regard shoplifting as far more morally reprehensible than bingo-playing, both plaintiffs suffered injury while departing from the scene of the crime. The plaintiff in Manning had finished her game when she fell in the hole, and Stolicker had completed the retail fraud when she walked to her car outside Kohl s. The Supreme Court aptly explained in Manning, [I]n the case at bar the game is over. The evening has come to a close and the day s pursuits, wicked or pure, are over. Manning, 345 Mich at 134. As in Manning, Stolicker s crime served as an occasion for the tort that allegedly followed, Orzel, 449 Mich at 568, citing Manning, 345 Mich at 136, but both miscreant plaintiffs relied on acts other than their illegal conduct to prove the defendants torts. Thus, the majority s discourse on the difference between a proximate cause and the proximate cause entirely misses the point. Stolicker s claim that Duncan assaulted and battered her does not hinge on her shoplifting. Her proofs would be the same even had she been innocent of the charge. Simply put, Stolicker s shoplifting is not an essential part of her case. See Miller v Radikopf, 394 Mich 83, 88; 228 NW2d 386 (1975).2 1 The majority quotes Manning for the proposition that [A] plaintiff who has engaged in a wrongful act may be able to recover if the wrongful act was a remote link in the chain of causation Ante at 2. The Manning Court actually stated, It is not enough, then, to bar a plaintiff s recovery, that some illegal act be a remote link in the chain of causation. 345 Mich at 137. 2 The majority asserts that the wrongful conduct doctrine is so clear, we decline to don the judicial x-ray glasses that are required to join the dissent s crusade in gleaning tactical underpinnings. Ante at 2 n 1. While the precise meaning of this sentence eludes me, it seems preferable to analyze caselaw wearing x-ray glasses rather than blinders. The majority s (continued ¦) -3- Aside from the majority s incorrect proximate cause analysis, application of the wrongful-conduct rule under these circumstances cannot be harmonized with two statutes recognizing Stolicker s ability to maintain a cause of action premised on the use of excessive force, and two more that entirely eliminate the wrongful-conduct doctrine. B. MICHIGAN RECOGNIZES A CAUSE OF ACTION FOR UNREASONABLE FORCE The majority s incorrect interpretation of the wrongful-conduct rule relieves Duncan and other security guards of legal responsibility for the use of excessive force when confronting shoplifters. This holding directly conflicts with MCL 600.2917(1), which codifies the commonlaw shopkeeper s privilege and provides in relevant part as follows: In a civil action against a . . . merchant . . . for false imprisonment, unlawful arrest, assault, battery, libel, or slander, if the claim arises out of conduct involving a person suspected of removing or of attempting to remove, without right or permission, goods held for sale in a store from the store . . . and if the merchant . . . had probable cause for believing and did believe that the plaintiff had committed or aided or abetted in the larceny of goods held for sale in the store . . . damages for or resulting from mental anguish or punitive, exemplary, or aggravated damages shall not be allowed a plaintiff, unless it is proved that the merchant . . . used unreasonable force, detained the plaintiff an unreasonable length of time, acted with unreasonable disregard of the plaintiff's rights or sensibilities, or acted with intent to injure the plaintiff. This statute contemplates that a civil action may arise from conduct involving a person suspected of removing or of attempting to remove goods from a store, despite that probable cause exists for believing that the plaintiff committed a larceny. The shopkeeper s privilege codified in the statute permits a security guard such as Duncan to use reasonable methods in detaining and investigating suspected shoplifters. [Section] 2917 has a protective purpose; it in effect allows storeowners who suspect individuals of shoplifting to detain them without fear of a recovery of exemplary damages or damages beyond the purely compensatory, at least where the storeowner acted with probable cause. Mosley v Federals Dep t Stores, Inc, 85 Mich App 333, 337; 271 NW2d 224 (1978). The statute conditions a plaintiff s recovery upon proof of the storeowner s unreasonableness. Id. The Legislature clearly contemplated that even a guilty shoplifter could bring a claim for assault and battery if she proved that the merchant used unreasonable force. Section 2917 embodies the dual principles that Duncan had a duty to act ( ¦continued) repetitive citations to Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), demonstrate the folly in disregarding the law. Contrary to the majority s view that the wrongful conduct doctrine should apply in situations involving flight from illegal activity, ante at 2 n 1, MCL 600.29455b(2) permits a person injured while in flight from a felony to bring a cause of action if the injury resulted from unreasonable force. Regardless of the Robinson dicta, our Legislature has defined a cause of action that the wrongful conduct rule cannot override. -4- reasonably in response to Stolicker s criminal conduct, and any use of excessive force would expose him to liability for certain damages.3 In 2000, our Legislature enacted MCL 600.2955b, which lends additional support to my analysis. This statute requires a court to dismiss with prejudice a plaintiff s tort action if bodily injury or death occurred during [t]he individual s commission, or flight from the commission, of a felony. MCL 600.2955b(1)(a). However, the statute does not apply unless the court finds that the defendant [u]sed a degree of force that a reasonable person would believe to have been appropriate to prevent injury to the defendant or to others. MCL 600.2955b(2)(a). With this qualification, the Legislature specifically preserved the viability of certain excessive force claims brought against law enforcement officers or security guards even when a plaintiff has committed a felony or is in flight from the commission of a felony. In this case, Stolicker committed a misdemeanor. But it stretches credulity to conclude that misdemeanants should be treated more harshly than convicted felons. It is even more farfetched to assume that the Legislature lacked awareness of the wrongful-conduct rule. The Legislature is presumed to know of the existence of the common law when it acts. Wold Architects & Engineers v Strat, 474 Mich 223, 234; 713 NW2d 750 (2006). These statutes stand for the proposition that claims premised on excessive force, including those brought by felons, do not offend public policy. On the contrary, it is the public policy of this state to allow redress to the courts when unreasonable force has been used to apprehend even guilty transgressors. C. THE WRONGFUL-CONDUCT RULE HAS BEEN LEGISLATIVELY OVER-RULED In 1996, one year after the Supreme Court s decision in Orzel, the Legislature comprehensively reformed Michigan s tort law. Integral to the reforms, MCL 600.2958 provides, Subject to section 2959, in an action based on tort or another legal theory seeking damages for personal injury, property damage or wrongful death, a plaintiff s contributory fault does not bar that plaintiff s recovery of damages. 4 MCL 600.6304(8) defines the term fault, as an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party. (Emphasis added). Assuming that the majority has correctly characterized Stolicker s shoplifting as a proximate cause of her injuries, her action falls squarely within the definition of fault set forth in the statute. But in language that could not be more straightforward, our Legislature has declared that a plaintiff s 3 The majority contends that MCL 600.2917(1) neither creates nor limits the type of action a shoplifter may assert, but instead describes the burden of proof for obtaining aggravated damages. Ante at 5 n 3. Why would the Legislature set forth a mechanism for obtaining aggravated damages if no underlying cause of action existed? Perhaps the majority s blinders have again impeded thoughtful analysis. 4 MCL 600.2959 provides for the reduction of damages by the percentage of fault attributable to the plaintiff, and bars recovery for noneconomic damages if the plaintiff s fault exceeds the aggregate fault of the other parties and nonparties to the action. -5- contributory fault does not bar that plaintiff s recovery of damages. negligence framework supersedes the common-law wrongful-conduct rule.5 This contributory It is axiomatic that the Legislature has the authority to abrogate the common law. Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 389; 738 NW2d 664 (2007), and that the Legislature is the superior institution for creating the public policy of this state[.] Woodman v Kera LLC, 486 Mich 228, 245; 785 NW2d 1 (2010). Our Supreme Court reaffirmed in Woodman that, As a general rule, making social policy is a job for the Legislature, not the courts. Id., quoting Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999). Thus, if a statutory provision and the common law conflict, the common law must yield. Trentadue, 479 Mich at 389. The wrongful-conduct rule finds its genesis in public policy: The rationale that Michigan courts have used to support the wrongful-conduct rule are rooted in the public policy that courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct. Orzel, 449 Mich at 559. Application of the common-law doctrine would abrogate the legislatively-mandated fault analysis applicable to tort claims such as Stolicker s. In essence, the majority has relieved Duncan of any obligation to use reasonable care when confronting shoplifters, a result directly conflicting with statutory comparative fault principles embodied in MCL 600.2958. MCL 600.6304 generally provides that the trier of fact in a tort action shall determine by percent the comparative negligence of all those who are a proximate cause of the plaintiff s injury and subsequent damages. Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004). Subsection 6304(1)(b) is unambiguous and calls for the trier of fact to assess by percentage the total fault of all persons that contributed to the death or injury, including each plaintiff, as long as that fault constituted a proximate cause of the plaintiff s injury and subsequent damage. Shinholster, 471 Mich at 551 (emphasis omitted). By specifically including intentional conduct within MCL 600.6304(8) s definition of fault, the Legislature signaled that the conduct of all contributors to an event must be considered. The majority s application of an extrastatutory rule in avoidance of the plain language of the statute offends the public policy of this State as expressed by our Legislature. In Trentadue, 479 Mich at 407, our Supreme Court emphasized, Statutes lose their meaning if an aggrieved party need only convince a willing judge to rewrite the statute under the name of equity. Significantly, such unrestrained use of equity undermines consistency and predictability for plaintiffs and defendants alike. (Quotation marks and citation omitted). The plain language of MCL 600.2958 and MCL 600.6304(8) renders meaningless the majority s moral judgments concerning shoplifters. The Legislature has decreed its intent that a shoplifter s 5 While the wrongful-conduct rule focuses on the plaintiff s fault and excludes consideration of the defendant s wrongful acts, the Legislature has declared that the fault of all potential tortfeasors must be assessed by the factfinder. Read in pari materia, MCL 600.6304(8) and MCL 600.2958 demand consideration of Duncan s fault as well as Stolicker s. -6- conduct must be factored into a larger analysis of fault that does not include judge-made equitable dodges. On this ground alone, I would reverse the trial court.6 6 I concur with the majority that the parties did not address the affect of tort reform legislation on the wrongful-conduct doctrine. Ante at 5 n 4. However, the deficiencies of a party s argument should never constrain our analysis such that we are forced to issue a legally flawed opinion. -7-
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