Daponte v. Ocean State Job Lot, Inc., C.A. No. WC-02-0646 (R.I. Super 3/4/2009)

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IRENE DAPONTE v. OCEAN STATE JOB LOT, INC. and MARC PEARLMAN

C.A. No. WC-02-0646

Superior Court of Rhode Island, Washington, Sc.

Filed: March 4, 2009.

DECISION

THOMPSON, J.

In the matter before the Court, Plaintiff Irene DaPonte ("Plaintiff") is a former employee of Defendant Ocean State Job Lot, Inc. ("Ocean State"), which was cofounded by Defendant Marc Perlman, its current President and CEO ("Perlman") (incorrectly named in the complaint as "Marc Pearlman") (collectively, "Defendants"). Plaintiff alleges that Perlman invaded her statutory right to privacy in an incident which occurred at the North Kingstown Ocean State Job Lot store. On the theory of respondeat superior, Plaintiff alleges that Ocean State is equally culpable. Jurisdiction is pursuant to G.L. 1956 § 9-1-28.1(b).

I Facts and Travel

Plaintiff was an Assistant Manager at various Ocean State Job Lot stores for over six years prior to the incident which precipitated this claim. At the Job Lot stores, it is the responsibility of the most senior person on duty to greet and "walk the store" with Defendant Perlman whenever he arrives at a particular local. Walking the store involves physically walking with Perlman through the store's various departments. The frequency of Perlman's visits to a respective store varies depending on the store's location. On October 25, 2001, Plaintiff was working at the North Kingstown store and was the most senior staff person on duty when Perlman arrived. Plaintiff proceeded from the back of the store to greet Perlman and encountered him in the area between the shoe table and the rug display near the front of the store. To Plaintiffs surprise, Perlman became quite upset with the set up of the shoe display and the misplacement of a price tag on a rug.

Plaintiff attempted to explain that the shoe display had been set up in accordance with the written document blueprinting the desired set up. Plaintiff had not been personally present when the display was set up, and once the display was assembled Plaintiff's sole responsibility was to maintain the display. Plaintiff alleges that a visibly distraught Perlman yelled loudly at her for approximately three to four minutes. Then, Perlman removed a misplaced price sticker from one of the nearby rugs, and, according to Plaintiff, slammed it onto her shoulder above her breast without warning. Perlman's attack, she claims, was forceful enough to rock her onto the back of her heels.

Though conceding some agitation, Perlman asserts that he merely placed the price tag on Plaintiffs shoulder in order to demonstrate that the tag was not properly sticking on fabric. His concern, he noted, was the ease with which a customer could improperly move a price tag from one item to another. Perlman alleges that there is no way that he could have held the fragile price sticker and placed it on the Plaintiffs shoulder with his thumb and forefinger while simultaneously "slamming" her shoulder. The parties thus disagree as to the manner in which the price tag was undisputedly placed upon the Plaintiff's shoulder. However, it is undisputed that the Defendant neither asked permission nor received consent to touch the Plaintiff.

Plaintiff claimed she was shocked and humiliated, but did not confront Perlman out of fear she would be fired. As she continued the walk though the store with Perlman she was unable to focus on his words and stated she felt a "burning sensation" and experienced trembling lips. After Perlman's departure, Plaintiff returned to the back of the store where she met an assistant manager and other store employees and began to cry, and explained what had occurred. A fellow employee contacted Ocean State's store headquarters and informed Perlman's training coordinator and personnel director of the incident. Plaintiff wrote up an incident report, and a co-worker in the office took a photograph of Plaintiff with the price sticker still visibly affixed to her shoulder. Plaintiff stayed at work the remainder of the day, stating she was afraid she would be fired if she went home. After the incident, Plaintiff spoke with various other members of management. Plaintiff requested assurance that a similar incident would not occur again, but management would not provide such assurance, according to Plaintiff, because Defendant Perlman was the owner of the company.

Subsequent to the incident, Plaintiff claims that she was a nervous wreck when she arrived at work each morning. Approximately one month after the incident, Plaintiff was transferred at her request to the Hope Valley Ocean State Job Lot location. She believed that she would be less likely to see Perlman due to the Hope Valley store's distance from the company's North Kingstown headquarters. Plaintiff claims that Perlman came to the Hope Valley store on more than one occasion and that her anxiety returned at the thought of having to walk him through the store. Soon thereafter, Plaintiff left her position with Ocean State and found work as a direct care worker. She also obtained a second job for a period of time. Plaintiff claims that as a result of changing jobs she suffered a significant decrease in pay, medical benefits, bonuses and vacation time compared to what she had previously received as a salaried employee with Ocean State.

In her initial complaint before this Court, Plaintiff asserted four claims. Count I alleged a violation of the Plaintiff's right to privacy pursuant to § 9-1-28.1(a)(1). Count II alleged that Ocean State was liable on theories of respondeat superior and strict liability. Count III alleged that Ocean State was liable on theories of negligent hire and supervision. Count IV asserted a claim for intentional infliction of emotional distress.

Defendants have argued throughout the course of this litigation that Workers' Compensation exclusivity bars this Court from considering Plaintiff's claims. Defendants first raised exclusivity in a motion to dismiss all claims pursuant to Super. R. Civ. P. 12(b)(6). The Court denied Defendants' motion. Defendants again raised Workers' Compensation exclusivity in a motion for summary judgment on all claims. At that point, Plaintiff conceded that her claim for intentional infliction of emotional distress (Count IV) could not survive. The Court granted Defendants' motion for summary judgment with respect to Plaintiff's claim for negligent hire and supervision (Count III) but denied the motion with respect to Plaintiffs claims for invasion of privacy (Count I) and respondeat superior and strict liability (Count II). In doing so, the Court refused to disturb the earlier ruling that Workers' Compensation exclusivity does not apply here. At hearing, and in their post-hearing brief, Defendants continue to argue that Plaintiff's remaining claims should be barred by Workers' Compensation exclusivity.

II Analysis

1. Workers' Compensation Exclusivity

Defendants argue that Workers' Compensation exclusivity bars Plaintiffs claims; however, this Court rejects Defendants' argument based upon the law-of-the-case doctrine. Under the law-of-the-case doctrine, after a "judge has decided an interlocutory matter in a pending suit, a second judge on that court, when confronted at a later stage of the suit with the same question in the identical manner, should refrain from disturbing the first ruling." State v. Graham, 941 A.2d 848, 856 (R.I. 2008) (emphasis removed) (quoting Richardson v. Smith, 691 A.2d 549, 546 (R.I. 1997)). The doctrine "ensures stability of decisions and avoids contests between judges that could cause a loss of public confidence in the judiciary." Id. (citing Payne v. Superior Court for Providence County, 78 R.I. 177, 184-85, 80 A.2d 159, 163 (1951)). Here, the Court has already ruled that Workers' Compensation exclusivity does not bar Plaintiff's claims. Defendants nevertheless argue that the law of the case doctrine does not apply because the original ruling was based on a limited record which has since been expanded. Although it is true that the law of the case doctrine will not be applied if "evidence has been introduced in the interim that significantly extends or expands the record," this Court does not find such an instance here. See Richardson v. Smith, 691 A.2d 543, 546 (R.I. 1997). Instead, the Court recognizes that the question of Workers' Compensation exclusivity has already been addressed on these facts as a matter of law, and therefore declines to reconsider Defendants' arguments on that issue.

2. Right to Privacy Claim

Plaintiff alleges that Perlman violated her privacy rights pursuant to § 9-1-28.1 when he forcefully placed, or in her words "slammed," the price sticker onto her shoulder. In examining the credibility of Plaintiff and Defendant Perlman, the Court finds that Perlman did in fact slam or forcefully place the pricing sticker on the Plaintiff's shoulder, which constitutes both an offensive and un-consented to touching. Yet, notwithstanding the glaring inappropriateness of the Defendant's actions, which amount to criminal assault and battery, the Court finds that Perlman's conduct is not actionable under § 9-1-28.1. This unfortunate incident is simply not an occurrence which falls under the language of § 9-1-28.1, nor is it an occurrence which the right to privacy statute was intended to address.

Section 9-1-28.1 provides in part:

(a) Right to privacy created. It is the policy of this state that every person in this state shall have a right to privacy which shall be defined to include any of the following rights individually:

(1) The right to be secure from unreasonable intrusion upon one's physical solitude or seclusion;

(i) In order to recover for violation of this right, it must be established that:

(A) It was an invasion of something that is entitled to be private or would be expected to be private;

(B) The invasion was or is offensive or objectionable to a reasonable man; although,

(ii) The person who discloses the...