United States District Court, D. South Carolina, Florence Division
Kimberly Ann Cirrani and Frederick Francis Cirrani, Plaintiffs,
Wal-Mart Stores, Inc., and Wal-Mart Stores East, LP, all d/b/a Surfside Beach Wal-Mart Supercenter Store No. 0574, Defendants.
HARWELL, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' “Motion
to Dismiss and Strike Certain Allegations from
Plaintiffs' Complaint or, in the Alternative, Motion for
More Definite Statement.” See ECF No. 10. The
Court grants in part and denies in part Defendants'
motion for the reasons herein.
diversity action concerns an alleged incident that occurred
at a Walmart store in Surfside Beach on August 20, 2015.
Plaintiffs Kimberly and Frederick Cirrani claim Mrs. Cirrani
was seriously injured after riding a bicycle in Walmart,
crashing the bike when a Walmart employee attempted to remove
her from it, and falling onto the concrete floor of the
store. See Complaint [ECF No. 1]. Plaintiffs sue
Walmart (“Defendants”) and assert four causes of
action: (1) negligence/premises liability, (2) negligent
hiring, training, and supervision, (3) civil assault, and (4)
loss of consortium. Id. at pp. 8-14.
have filed a motion to dismiss Plaintiffs' assault claim
pursuant to Fed.R.Civ.P. 12(b)(6), to strike certain
allegations from the complaint pursuant to Fed.R.Civ.P.
12(f), or alternatively, for a more definite statement
pursuant to Fed.R.Civ.P. 12(e). See ECF No. 10.
Plaintiffs have filed a response in opposition, and
Defendants have filed a reply. See ECF Nos. 18 &
Motion to Dismiss Assault Claim
Defendants move to dismiss the assault claim pursuant to
Fed.R.Civ.P. 12(b)(6). See ECF No. 10 at pp. 4-6.
“To survive a Rule 12(b)(6) motion, the complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Elliott v. Am. States Ins. Co., 883 F.3d 384, 395
(4th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “[A] plaintiff must provide
sufficient detail to show that he has a more-than-conceivable
chance of success on the merits.” Upstate Forever
v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637,
645 (4th Cir. 2018) (alterations omitted).
Carolina recognizes the tort of assault, defined as “an
attempt or offer, with force or violence, to inflict bodily
harm on another or engage in some offensive conduct.”
Mellen v. Lane, 659 S.E.2d 236, 244 (S.C. Ct. App.
2008). “The elements of assault are: (1) conduct of the
defendant which places the plaintiff, (2) in reasonable fear
of bodily harm.” Id.
The conduct must be of such nature and made under such
circumstances as to affect the mind of a person of ordinary
reason and firmness, so as to influence his conduct; or it
must appear the person against whom the threat is made was
peculiarly susceptible to fear, and the person making the
threat knew and took advantage of the fact he could not stand
as much as an ordinary person.
Id. Words alone do not constitute an assault,
“unless accompanied by an actual offer of physical
violence.” Id. at 245.
complaint alleges that after several Walmart associates told
Mrs. Cirrani she could test ride a bike in the store, another
Walmart employee “came towards [her] in a loud,
aggressive, and rude manner in an attempt to remove her from
the bicycle, causing her to lose control of the bicycle and
fall onto the concrete floor.” Compl. at ¶¶
24, 28-29. It further alleges that Mrs. Cirrani would not
have crashed the bike or been injured “had the
[Walmart] employee refrained from screaming at her and
approaching her in an aggressive manner”; that
Defendants “allow[ed] a store employee to yell at and
frighten a customer while riding a bicycle in the
store”; that the employee “unreasonably and
dangerously attempted to remove her from the bicycle by
yelling and screaming at her”; that the employee
“was yelling at [Mrs. Cirrani] and moving toward her in
an aggressive manner such that she was caused to crash the
bicycle”; and that these actions “placed [her] in
reasonable fear of bodily harm and caused her to fall to the
floor.” Id. at ¶¶ 31, 53(h), 71-73.
on the above allegations, the Court concludes the complaint
states a plausible claim for assault. Those allegations-which
must be accepted as true at this stage-contain sufficient
factual matter to conclude the Walmart employee's conduct
placed Plaintiff in fear of bodily harm. See Mellen,
659 S.E.2d at 244 (listing the two elements of assault).
While the employee's words alone are insufficient to
state an assault claim, those words were “accompanied
by an actual offer of physical violence, ” i.e.,
forcibly/physically removing Mrs. Cirrani from the bike.
Id. at 245. Defendants' argument that the
complaint lacks any allegations regarding intent is
immaterial because “intent is not an essential element
of assault.” Id. (“The rule, supported