New York Team Wins Summary Judgment on Behalf of Big Box Store

New York, N.Y. (April 24, 2025) - New York Partners Peter Iannace, John Risi, and Peter Dunne recently secured summary judgment on behalf of a big box store. The plaintiff was assaulted by an employee of the big box store at one of its locations in Manhattan, which was captured on both the plaintiff’s cell phone and store surveillance video. The plaintiff alleged that the assault was unprovoked after he requested customer support.

The plaintiff was a suspected shoplifter who used the big box store’s shipping material without paying for it. A month prior to the assault, the plaintiff and the big box store employee were involved in a verbal altercation, during which the plaintiff alleged that the employee was rude and “hassled” him. The plaintiff contacted the big box store’s corporate offices, filed a formal complaint, and received a gift coupon for future purchases.

On the date of the incident, as the plaintiff arrived at the store, upon recognition by the Store Manager, a “Code Freddy” was announced, indicating a suspected shoplifter was entering/in the store. “Code Freddy” was the code this store used to communicate the commencement of a theft prevention procedure that required the store’s associates to provide constant customer service.

During the interaction, the plaintiff requested the specifications of and to “see” a computer tablet from the assisting big box store staff member. This request required the assistance of the big box store employee, who was the tech supervisor.

The plaintiff requested that the employee remove the tablet from its locked case, which was against store policy. As the discussion continued, the plaintiff took out his cell phone and started to record the interaction, shoving it towards the employee. Upon the plaintiff’s action, the big box store employee reached out, slapped the phone out of the plaintiff’s hand, and a struggle ensued. Store surveillance footage showed that other employees quickly rushed to the altercation and pulled the combatants apart. Unfortunately, as they were escorting the plaintiff from the store to calm the situation, the employee ran from the rear of the store and appeared to attempt to re-engage with the plaintiff. The plaintiff ultimately left the store without further incident and filed a criminal complaint, resulting in the big box store employee pleading guilty.

The claim against the big box store was for negligent hiring, training, supervision, and retention. We demonstrated that the store had the proper hiring practices, training, and supervision required as a matter of law. We were able to prove that an assault by an employee under the theory of respondeat superior was not viable, as it was not in furtherance of the big box store’s business and within the employee’s scope of employment.

Most concerning was the plaintiff’s claim for negligent retention due to the big box store employee’s retention after the verbal event with the plaintiff a month prior. We successfully argued that a verbal argument, without violence, does not amount to notice of violent propensities. Vicuna v. Empire Today, LLC, et al, 128 A.D.3d 578 (1st Dept. 2015). As in Vicuna, the plaintiff attempted to argue in opposition by submitting the prior incident as proof of the big box store employee’s propensity for violence. Similar to our facts, in Vicuna, the assaulting employee had been admonished “for being short-tempered and verbally inappropriate in dealing with coworkers on several occasions.” Just like in Vicuna, the court found that the big box store employee’s actions and admonishment to behave better from a month before did not rise to the level of notice for violent behavior, “much less that he had a propensity to do so.” Vicuna.

The Court found our arguments prevailing for all causes of action, even granting the big box store fees and disbursements when awarding summary judgment.