Wal-Mart must face a civil assault lawsuit filed after a worker angrily pointed his finger in the face of a 79-year-old customer at its Franklin store, a judge has ruled.
Rochelle Banziger sued Wal-Mart, asset protection employee Andrew Brewer, the city of Franklin and others after she was stopped when she exited the Franklin Walmart store in March 2016. Brewer confronted Banziger outside the store, where he said she became uncooperative and “caused a big scene.”
Brewer asked her to return to the store and he walked her to asset-protection office, where he demanded to see Banziger’s receipt. He then took a step toward her, leaned over where she sat, and shook his finger in her face, prompting her to stand and tell Brewer not to speak to her as he did. About that time, police, who Brewer had called, arrived and intervened. Banziger also has raised federal constitutional claims against the city of Franklin and its police.
Banziger sued Brewer for assault, and under the doctrine of respondeat superior, also named Wal-Mart as a party liable for Brewer’s actions. Chief Judge Jane Magnus-Stinson Tuesday denied Wal-Mart and Brewer’s motion to dismiss in the District Court for the Southern District of Indiana. She cited Indiana Supreme Court precedent holding “any act of such a nature as to excite an apprehension of battery may constitute an assault. It is an assault to shake a fist under another’s nose … .”
“There is no legally significant difference between someone shaking a fist under someone else’s nose ... and someone angrily pointing a finger in another’s face,” Magnus-Stinson wrote. “The dispositive inquiry at this stage is merely whether the facts as alleged yield the reasonable inference that Mr. Brewer acted with the requisite intent. For the reasons set forth above, the Court concludes that the facts alleged in the Amended Complaint yield precisely that reasonable inference.”
The case is Rochelle Banziger v. City of Franklin, et al., 1:17-CV-755.