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Anicich v. Home Depot, U.S.A., Inc.

United States District Court, N.D. Illinois, Eastern Division

June 9, 2015

SHERRY ANICICH, Independent Administrator of the ESTATE OF ALISHA BROMFIELD, Deceased, and as Special Administrator of the ESTATE OF BABY AVA LUCILLE, Plaintiff,
v.
HOME DEPOT, U.S.A., INC.; JOHN MOSSEL; TODD MOSSEL; GRAND SERVICE, LLC; GRAND FLOWER GROWERS, INC.; and VINCA SOLUTIONS, LLC, Defendants.

MEMORANDUM OPINION AND ORDER

JORGE L. ALONSO, District Judge.

Before the Court are defendants' motions to dismiss. For the reasons explained below, the first motion of Home Depot, U.S.A., Inc. to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is denied; the second motion of Home Depot, U.S.A., Inc. to dismiss the complaint pursuant to Rule 12(b)(6) is granted; the motion of John Mossel, Todd Mossel, Grand Service, LLC and Grand Flower Growers, Inc. to dismiss the complaint pursuant to Rule 12(b)(6) is granted; and the motion of Vinca Solutions, LLC to dismiss the complaint pursuant to Rule 12(b)(6) is granted.

BACKGROUND

The facts underlying this case are tragic. The complaint alleges as follows. In 2006, plaintiff Sherry Anicich's teenage daughter, Alisha Bromfield, began working for defendants Grand Service, LLC and Grand Flower Growers, Inc. (collectively, "Grand"), which is a "joint venturer with or implied agent of" defendant Home Depot, U.S.A., Inc. ("Home Depot"). (R. 1-1, Compl. ¶¶ 3-4, 6.) Grand grows, supplies, cares for, and sets up the flowers and plants in Home Depot's garden centers in Illinois and also provides Home Depot with seasonal personnel who work in the garden centers. (Id. ¶¶ 3-4.) "[I]n that capacity, " Grand "pays said employees via" defendant Vinca Solutions, LLC. ("Vinca"). (Id. ¶ 4.) The complaint does not identify defendants John Mossel and Todd Mossel, other than to state that they are "doing business as" Grand, [1] ( id. at 1), but Grand's jurisdictional addendum describes them as two of the three members of Grand Service, LLC. (R. 57.)

Bromfield performed merchandising tasks and garden services for Grand at Home Depot locations in Shorewood, Bolingbrook, and Joliet, Illinois. (Compl. ¶ 6.) She continued to work there seasonally until her death in 2012. (Id. ) When Bromfield was hired by Grand, she was put under the supervision of Brian Cooper, who had begun employment with Grand as a merchandiser and later received promotions to supervisor and/or store team leader and then to regional manager. (Id. ¶ 7.) As regional manager, Cooper was responsible for Grand's business operations and employees at Home Depot's garden centers throughout northern Illinois. (Id. )

It is alleged that Home Depot and Grand knew that Cooper "had psychological issues and dangerous propensities" and was "emotionally unstable and violent, " thus causing Grand to require him to attend anger-management therapy, which he failed to satisfactorily complete. Home Depot and Grand nevertheless allowed Cooper to remain a supervisor. (Id. ¶¶ 5, 11, 14.) While Bromfield was still a minor, Cooper demanded that she accompany him on business trips, where he "engaged in abusive and inappropriate conduct with" her; he "publically decr[ied]" her as a "whore" and "slut"; and he suggested to Bromfield that they have an "intimate relationship." (Id. ¶¶ 8, 11, 12.) Bromfield repeatedly complained about Cooper's conduct to Grand's management, yet defendants failed to take any action to investigate, monitor, limit, or control Cooper in his interactions with Bromfield. (Id. ¶¶ 12-13.) Plaintiff also alleges that the unidentified persons in Grand's management to whom Bromfield complained "actually cooperated with" Cooper in "arranging for [him] to be alone with" Bromfield "to facilitate his continuing pattern of abuse." (Id. ¶ 13.)

During 2012, Cooper began to express anger with Bromfield's attending college and her personal life. He "formulated a plan to continue his pattern of abuse and to consummate his relationship" with Bromfield. (Id. ¶ 15.) During his time alone with her at work, he insisted that she accompany him to his sister's wedding, which was to take place in Door County, Wisconsin, supposedly so that Bromfield could meet his family. (Id. ) "With the assistance of others, " Cooper persuaded her not to go to work on Friday, August 18, 2012 and to accompany him to the wedding instead. At the time, Bromfield was "pregnant and vulnerable, and needed to continue her employment, and was intimidated by" Cooper, so she agreed to go with him. (Id. ¶ 16.)

Once at the wedding, Cooper introduced Bromfield to various family members. After the ceremony, he brought Bromfield back to their hotel room, and "continued his pattern of verbal and physical abuse." (Id. ¶ 17.) When Cooper suggested that they "enter into a permanent relationship, " Bromfield declined, and Cooper "threatened her if she did not submit to him." (Id. ) Then, as Bromfield begged for her life and that of her unborn child, Cooper strangled Bromfield for five minutes or more, until she was dead, and thereafter, undressed her and raped her corpse. (Id. ) Bromfield had been nearly seven months pregnant, and although her unborn child, baby Ava Lucille, was viable, she died as a result of Bromfield's murder and rape. (Id. ¶ 18.)

The complaint alleges that defendants had a duty to use reasonable care to select employees who were competent to perform their duties and who would not use their authority to "intimidate and terrorize young girls" placed under their supervision, and a duty to "supervise, maintain, operate and monitor the condition of Home Depot garden centers premises as well as the conduct of [their] employees, agents or joint venturers present so as to not cause injury or damage to others." (Id. ¶¶ 19-20.) The complaint further alleges that defendants placed and retained Cooper in a position of authority knowing about his "practices and proclivities" and that he was unfit to supervise young female employees, particularly Bromfield, and that by allowing Cooper "unchecked authority" in selecting, retaining, and scheduling garden-center employees, defendants "created a reasonably foreseeable risk of danger to the public and the decedent, including risk of injury, serious bodily harm, and clearly death." (Id. ¶¶ 21-26.) It is plaintiff's theory that defendants' negligence proximately caused Cooper's abuse of Bromfield as well as Bromfield's and baby Ava Lucille's deaths. (Id. ¶ 27.)

Plaintiff, as the Independent Administrator of Bromfield's estate and the Special Administrator of baby Ava Lucille's estate, filed the instant complaint in the Circuit Court of Cook County, Illinois on August 11, 2014. With the consent of the other defendants, Grand Service, LLC removed the action to this court on the basis of diversity jurisdiction. The complaint contains four counts: claims under the Illinois Wrongful Death Act, 740 ILCS 180/1 et seq., for Bromfield's and baby Ava Lucille's wrongful deaths (Counts I and IV); a claim under the Illinois Survival Act, 755 ILCS 5/27-6, for Bromfield's pain and suffering prior to her death (Count II); and a claim for Bromfield's funeral and burial expenses (Count III).

DISCUSSION

A Legal Standards

"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted). Under federal notice-pleading standards, a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. Stated differently, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the well-pleaded ...


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