Jones v. Walgreens Co. - No. A11-1261, 2012 Minn. App. Unpub. LEXIS 417 (May 14, 2012)

Rule:

Summary judgment is proper when "the record is devoid of proof on an essential element of the plaintiff's claim." Cargill, Inc. v. Jorgenson Farms, 719 N.W.2d 226, 232 (Minn. App. 2006).

Facts:

Appellant Michael Jones suffered from several medical conditions which required prescription medication and he filled the same at Walgreens pharmacy for the past 20 years. Appellant has health insurance through U Care, a nonprofit health plan. The terms of the plan provided that he had a $7 copayment each month for his medications; after he pays the $7 for the month, all subsequent prescriptions are filled at no charge; and if he cannot afford $7, the pharmacy waives the copayment. On at least four occasions in the past six years, various Walgreens pharmacies objected to filling of appellant's prescriptions without a copay. On January 15, 2010, despite knowing that the copay would not be waived, appellant nevertheless went to the store. The pharmacy technician and the pharmacist both told appellant that they would not waive the copay. When appellant became increasingly upset and snatched the prescriptions from the technician, the pharmacist paged the manager, Dennis Voigt. Voigt enforced the pharmacist's decision not to waive the copay. Voigt attempted to get the prescription back from appellant. As appellant became more upset, someone alerted Officers Boelter and Tschida of the situation. Officer Tschida tried to calm down appellant but when appellant did not back down, Officer Tschida became concerned for his safety and placed appellant in handcuffs. Voigt then told Officers Boelter and Tschida that he did not want appellant arrested for disorderly conduct or to do a citizen's arrest. He just wanted the prescriptions back and for appellant to leave the store. Officer Tschida had Voigt sign a trespass form, and Officers Tschida and Boelter drove appellant home. Appellant subsequently sued Walgreens and Voigt in his capacity as the store manager. Appellant asserted claims of false imprisonment, intentional infliction of emotional distress, assault and battery, and invasion of privacy by intrusion upon seclusion. Respondents moved for summary judgment, and the district court dismissed the complaint with prejudice. 

Issue:

Was the grant of the motion for summary judgment proper?

Answer:

Yes.

Conclusion:

Appellant failed to establish that he was confined by respondents. It was clear that respondents asked appellant to leave multiple times, and it was appellant who refused to leave. As to the assault claim, it must establish a display of force that caused "reasonable apprehension of immediate bodily harm." Id. Appellant testified in his deposition that he never feared that respondents were going to physically hurt him in any way. However, the police acted independently of respondents and respondents never threatened appellant, the district court did not err in granting summary judgment on the assault claim. As to battery, it is "an intentional unpermitted offensive contact with another." Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980). The security video showed that the only contact made between appellant and respondents is when appellant reached over the counter and snatched the bag of his prescription drugs from the pharmacy technician. To satisfy the extreme-and-outrageous element, the conduct must be "'so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.'" Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 908 (Minn. App. 1987) (quoting Hubbard, 330 N.W.2d at 439), review denied (Minn. Nov. 13, 1987). Here, the pharmacy staff tried to explain to appellant why they were unwilling to waive the copay and to provide him with information to enroll on straight medical assistance. An intrusion can be a physical intrusion into a private place or an intrusion made by defendant's senses, such as overhearing plaintiff's private affairs. Restatement (Second) of Torts § 652B, cmt. b (1977). Appellant's claim failed on the first element because there was no intrusion. Appellant failed to put forth any evidence that respondents either physically invaded a private room, or that respondents used their senses to intrude into appellant's private affairs.