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Cirrani v. Wal-Mart Stores, Inc.

United States District Court, D. South Carolina, Florence Division

February 22, 2019

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.



         This 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.[1]


          This 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.

         Defendants 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 & 19.


         I. 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).

         South 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.

         The 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.

         Based 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 ...

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