Opinion
CIVIL ACTION No. 99-2543-CM
June 8, 2001
MEMORANDUM AND ORDER
Plaintiff David Bryan brought this action against defendant Helene Eichenwald and defendant Nordstrom, Inc. Plaintiff alleges that defendant Eichenwald, who worked at Nordstrom, made false and defamatory statements to Nordstrom employees and others. Plaintiff also asserts a claim for negligent supervision against defendant Nordstrom. This matter is before the court on plaintiff's motion for partial summary judgment (Doc. 81), defendant Eichenwald's motion for summary judgment (Doc. 84), defendant Nordstrom's motion for summary judgment (Doc. 87), and defendant Nordstrom's supplemental motion for summary judgment (Doc. 90).
I. Facts
Plaintiff, an attorney, represented defendant Eichenwald in a legal malpractice action against Eichenwald's former attorney. At the time, plaintiff shared office space with another attorney, Barry Grissom. Mr. Grissom had initially filed suit on behalf of Eichenwald and then, when plaintiff passed the bar, plaintiff associated with Mr. Grissom in representing Eichenwald in the matter and eventually became lead counsel.
Sometime in 1995, plaintiff began dating Eichenwald. The two became romantically involved. Then, sometime in March 1997, the romantic relationship ended, but plaintiff continued to represent Eichenwald as her lawyer. In February 1998, plaintiff terminated his legal representation of Eichenwald.
Eichenwald has testified that, even after the romantic relationship ended, plaintiff continued to contact her parents and grandmother. During the summer of 1998, plaintiff came into the business of Carole Hook, who did Eichenwald's nails, and talked at length about Eichenwald. Ms. Hook then received a letter from plaintiff dated July 23, 1998 apologizing for "rambling on for so long" and discussing his anger towards Eichenwald. Attached to the letter was a sarcastic caricature about Eichenwald. By affidavit, Ms. Hook testified that plaintiff's letter and attached caricature concerned her very much and that she, therefore, gave a copy to Eichenwald. Eichenwald testified that, after she examined the letter and attached caricature, she realized there was a problem. Eichenwald contacted an acquaintance, Gary Stutz, who at the time worked for the Hamilton County Victim Crimes Unit for Cincinnati. Eichenwald testified that she sought advice from Mr. Stutz who, in turn, sent Eichenwald a document that listed things she should do, including making other people aware of the situation in the event the behavior should escalate.
Eichenwald showed Scott O'Neil, the manager of Loss Prevention (Security) at Nordstrom, the Hook letter and caricature. Mr. O'Neil instructed Eichenwald to call Loss Prevention whenever plaintiff came into the store.
In May 1999, plaintiff came into the Nordstrom store and told Eichenwald that he had been angry with her and that it wasn't right to hate people. Later, plaintiff sent an e mail to Eichenwald's sister, Rachelle Eichenwald, who was an attorney and with whom plaintiff was a business acquaintance. The e mail detailed his confrontation with defendant Eichenwald. In June 1999, Loss Prevention employees spotted plaintiff at least twice in Nordstrom, and then again in July 1999, at which time plaintiff sat at the Espresso Bar while being observed by Loss Prevention employees. Eichenwald testified that she observed plaintiff in the store several other times during the summer of 1999. There is also testimony in the record that Eichenwald's co-employee, Michelle Littrell, observed plaintiff in the Nordstrom store during the summer of 1999 about twenty times. Eichenwald further testified that, due to plaintiff's visits to Nordstrom during the summer of 1999, she began to fear for her personal safety. At the suggestion of Jennifer Knipp, another Loss Prevention Manager, Eichenwald wrote plaintiff a letter in September 1999 asking plaintiff not to come into the store anymore.
Plaintiff contends that, since early 1998, Eichenwald has told numerous individuals that plaintiff is a stalker or was stalking her. Eichenwald admits that she stated to attorney Barry Grissom that plaintiff was a stalker or that plaintiff was stalking her but denies that she told other individuals that plaintiff was a stalker. Eichenwald claims that she discussed with many individuals what she believed was plaintiff's "stalking behavior."
Plaintiff also contends that Eichenwald told individuals that plaintiff had ejaculated on Eichenwald's front door and left semen splashed on her front window and a condom in her front yard. The testimony indicates that Eichenwald told two individuals, Jennifer Knipp and Tana Hinck, about the semen and condom incidents when the incidents occurred, which was around February 1997. At that time, Eichenwald did not attribute these incidents to plaintiff. Rather, Eichenwald later told these two individuals that she thought plaintiff may have been involved in the incidents.
Plaintiff further claims that Eichenwald told an individual, Dorothy Opel, that plaintiff was crazy and a threat to the lives of Eichenwald, Dorothy Opel, and her husband, John Opel. Eichenwald knew these individuals because, at one time, Eichenwald and John Opel were romantically involved while Mr. Opel was married to Dorothy Opel. In any event, Dorothy Opel testified that Eichenwald stated that she feared for their lives and that Eichenwald did not know what plaintiff would do since he was so crazy.
Finally, plaintiff contends that Eichenwald told her attorney, Lynne Bratcher, that plaintiff had coerced Eichenwald into a sexual relationship by exploiting his power over her case and her vulnerability after Eichenwald's breakup with John Opel. This allegation stems from Ms. Bratcher's filing a bar complaint against plaintiff in October 1999. In that complaint, Ms. Bratcher alleged that, "[d]ue to Bryan's persistence, his position as her attorney with power over the case and her vulnerability after the breakup, Ms. Eichenwald consented to date Bryan." Ms. Bratcher testified that the source of her information for this statement was Eichenwald. Ms. Bratcher further testified that she could not recall whether Eichenwald told her that plaintiff had used his position as her attorney with power over the case.
Ms. Bratcher further alleged in the bar complaint, " Bryan began a sexual relationship with his client, Ms. Eichenwald. He became very controlling of her and became very jealous. It bothered Bryan that Ms. Eichenwald and her former fiancee were still friends." Ms. Bratcher testified that her sources for the information contained in this allegation came from Eichenwald and from letters from plaintiff that Ms. Bratcher had read.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
Under Kansas law, the elements of a defamation claim include 1) false and defamatory words; 2) communicated to a third person; and 3) which results in harm to the reputation of the person defamed. Dominguez v. Davidson, 266 Kan. 926, 930, 974 P.2d 112, 117 (1999). Further, damages in a defamation action must be established by showing injury to one's reputation. Gobin v. Globe Publ'g Co., 232 Kan. 1, 6, 649 P.2d 1239, 1243 (1982) ("Unless injury to reputation is shown, plaintiff has not established a valid claim for defamation . . . .").
A. "Stalking"
Plaintiff claims that Eichenwald told numerous individuals that plaintiff was a stalker or that plaintiff was stalking her. Under Kansas law, the crime of stalking is a felony and is defined as "an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety." Kan. Stat. Ann. § 21-3438. Interstate stalking is deemed a federal crime. 18 U.S.C. § 2261A. Plaintiff claims that Eichenwald's reference to others that plaintiff was a "stalker" imputes a crime and was, therefore, defamatory.
The court first notes that Eichenwald admits calling plaintiff a "stalker," or stating that plaintiff was stalking her, to Barry Grissom, Nordstrom store manager Kris Allan, and Nordstrom loss prevention manager Jennifer Knipp. However, the record contains testimony that Eichenwald discussed with other individuals what she believed was plaintiff's "stalking behavior." Whether Eichenwald actually called plaintiff a "stalker" or accused plaintiff of "stalking" to these other individuals is unclear from the record before the court. Accordingly, there remain questions of fact as to what Eichenwald may have stated to these other individuals. The court cannot find, as a matter of law, that Eichenwald made stalking statements about plaintiff to these individuals.
With respect to Eichenwald's comments to Mr. Grissom, Mr. Allan, and Ms. Knipp, the threshold question to determine if such statements were defamatory is whether the statements made by Eichenwald were false. Milkovich v. Lorain Journal Co., 497 U.S. 1, 16 (1990) (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986)). It is undisputed that plaintiff has never been charged, either under state or federal law, with the crime of stalking. However, "the meaning of an allegedly defamatory statement is not determined by legal research, but 'by the plain and ordinary meaning of the word.'" Anderson v. Cramlet, 789 F.2d 840, 844 (10th Cir. 1986) (quoting Simonson v. United Press Int'l, Inc., 654 F.2d 478, 482 (7th Cir. 1981)).
In Anderson, the plaintiff sued his former wife and a newspaper which printed the former wife's letter to the editor concerning the plaintiff's having "kidnapped" their child. The court found that, under Colorado law, plaintiff had not violated the Colorado kidnapping statute. Notwithstanding this finding, the court held that plaintiff's conduct of "kidnapping" was substantially true as a matter of law. Id. at 845. The court noted that the word "kidnapping," according to common usage, would encompass plaintiff's taking of his son without the knowledge or consent of his mother. The court further noted that the word "kidnap" appeared to have assumed a non-legal connotation. The court stated that a defendant is "not required to show that the allegedly defamatory statement is technically accurate, only that the 'gist' or 'sting' of the statement is true." Id. Accordingly, because the court found that the description of the plaintiff's conduct was substantially true, there was no defamation.
In this case, Eichenwald denies that she ever referred to plaintiff as a "stalker" in the criminal sense and contends that her reference to plaintiff's stalking meant that plaintiff was coming around when he was not welcome, spending too much time focused on her, and exhibiting obsessive behavior fueled by anger and hostility. The court is mindful that plaintiff technically was not guilty of the crime of stalking. However, under Anderson, this court does not require Eichenwald to show that her reference to plaintiff as a stalker was technically accurate. Rather, plaintiff need merely demonstrate that the gist of her statements were true.
In addition to being defined legally, the term "stalking" assumes a non-legal connotation. In this case, the court cannot find as a matter of law whether plaintiff exhibited conduct that encompasses the common usage of the term "stalking." In other words, a question of fact remains as to whether Eichenwald's description of plaintiff's conduct as stalking was substantially true. As such, this issue should go before a jury. Restatement (Second) of Torts § 617(b) (the jury determines whether a defamatory matter was true or false). Summary judgment on this issue is denied.
Even if the court assumed that Eichenwald's statements were false, summary judgment would still be inappropriate. Under Kansas law, in addition to being false, plaintiff must also show the statement is defamatory. The question of whether a statement is capable of conveying a defamatory meaning is for the court to decide. Woodmont Corp. v. Rockwood Ctr. P'ship., 811 F. Supp. 1478, 1481 (D.Kan. 1993) (citing S. Air Transp., Inc. v. Am. Broad. Co., 877 F.2d 1010, 1013-14 (D.C. Cir. 1989)). In this case, the court determines that the use of the term "stalker" is capable of bearing a defamatory meaning. However, the inquiry does not end here.
To be defamatory, "the language used must, as a matter of law, be reasonably capable of a defamatory interpretation and a jury must find that the language was actually understood by the recipient in that sense." Woodmont, 811 F. Supp. at 1481 (citing White v. Fraternal Order of Police, 909 F.2d 512, 519 (D.C. Cir. 1990)). There is no evidence that Mr. Grissom understood Eichenwald's use of the term "stalking" to be meant as a legal description of plaintiff's conduct. Indeed, Mr. Grissom testified that plaintiff's conduct seemed to constitute stalking in the lay sense, not necessarily the legal sense. Ms. Knipp testified that she believes the term "stalker" is a loosely used term and refers to somebody that is constantly bothering you or not welcome. Mr. Allan testified that he believes that the term "stalker" is used loosely in our society. Whether Mr. Grissom, Ms. Knipp, Mr. Allan, or any other individual, actually understood Eichenwald's statement in a defamatory sense is a question of fact and, accordingly, the jury should make this determination. Id.; see also Restatement (Second) of Torts § 614(2) ("The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.").
Both Eichenwald and Nordstrom argue that, even if Eichenwald's statements were defamatory, the statements were subject to qualified privilege. Privilege is an affirmative defense available in a defamation claim. Turner v. Halliburton Co., 240 Kan. 1, 7, 722 P.2d 1106, 1112 (1986). A qualified privilege "is granted to those with a special interest or duty in the subject matter of the communication." Id. Where statements are subject to qualified privilege, the plaintiff has the burden of proving that the statements were both false and made with actual malice. Munsell v. Ideal Food Stores, 208 Kan. 909, 920-921, 494 P.2d 1063, 1073 (1972).
Specifically, a communication is subject to qualified privilege if it is made in good faith on any subject matter in which the person communicating has an interest, or in reference to which she has a duty, if it is made to a person having a corresponding interest or duty. "The essential elements of a qualifiedly privileged communication are good faith, an interest to be upheld, a statement limited in its scope to the upholding of such interest and publication in a proper manner only to proper parties." Polson v. Davis, 635 F. Supp. 1130, 1148 (D.Kan. 1986).
The key issue on the subject of qualified privilege in this case is whether Eichenwald made such statements only to proper parties. The court is convinced that Eichenwald's statements to loss prevention personnel or members of Nordstrom management would, by themselves, qualify as privileged statements. However, Eichenwald admits to making these same statements to Barry Grissom. Neither Eichenwald nor Nordstrom argues that any such statements to Mr. Grissom were qualifiedly privileged. As such, Mr. Grissom would not be a "proper party." Under Polson, such a communication to anyone other than the proper parties precludes a defendant from invoking the qualified privilege. Id. (denying qualified privilege in part because "it may well be that [the defendant] communicated this statement to other than solely proper parties."). Accordingly, the court finds that Eichenwald's statements about plaintiff being a stalker or stalking her are not subject to qualified privilege. Eichenwald and Nordstrom's summary judgment motions are denied with respect to the issue of qualified privilege.
There also remain questions of fact as to which other individuals Eichenwald may have made such statements.
Eichenwald and Nordstrom also request summary judgment because, they claim, plaintiff has failed to produce evidence of harm to his reputation. Plaintiff contends that he once clerked for and worked on numerous cases with Mr. Grissom but that, since Eichenwald told Mr. Grissom that plaintiff was a stalker, Mr. Grissom has not referred any cases to plaintiff. Plaintiff also claims that, since Eichenwald told her sister, Rachelle Eichenwald, that plaintiff was a stalker, he has not worked on any cases with Rachelle Eichenwald. Plaintiff further asserts that, on his last two or three visits to Nordstrom, all Nordstrom employees except Ted Agular treated plaintiff in a rude and disrespectful manner.
Damages to plaintiff's reputation can be inferred from the evidence so long as the inference of damages in reasonable. Moran v. State, 267 Kan. 583, 590, 985 P.2d 127, 133 (1999). In Moran, the court stated:
[A] decrease after publication of defendants' statements for requests for Moran's professional participation would seem to be the sort of detrimental consequence that might be expected from colleagues' defamatory statements about his professional conduct. Thus, it would be reasonable to infer a causal link between the decreased demand for his professional participation and the defendants' statements.
Id. Moreover, the observations of plaintiff as to how others have treated him since the defamatory communications are sufficient evidence of damage to reputation to defeat summary judgment. Id. (citing Ali v. Douglas Cable Communications, 929 F. Supp. 1362, 1385 (D.Kan. 1996)). Based on Moran, the court in this case finds plaintiff's evidence sufficient to withstand summary judgment.
B. Front Yard Incidents
Plaintiff seeks summary judgment on his claim of defamation regarding Eichenwald's statements to Jennifer Knipp and Tana Hinck that she thought plaintiff had ejaculated on Eichenwald's front door and left semen splashed on her front window and a condom in her front yard. Even assuming for purposes of this opinion that Eichenwald's statements were false and defamatory and that she communicated these statements to at least one other person, plaintiff has failed to set forth evidence showing that he is entitled to summary judgment. Plaintiff presents no evidence, nor does he even allege, that Eichenwald's statements to Ms. Knipp and Ms. Hinck caused damage to his reputation. Plaintiff is not entitled to recover for defamation where he offers no evidence of harm to his reputation, no evidence of damage by reason of injury to his reputation, and no proof of financial loss flowing therefrom. Gobin, 232 Kan. at 7, 649 P.2d at 1244. As such, plaintiff's motion for summary judgment with respect to these statements is denied.
C. Statements to Dorothy Opel
Plaintiff claims that Eichenwald defamed him when she told Dorothy Opel that plaintiff was crazy and a threat to the lives of Eichenwald, Dorothy Opel, and her husband, John Opel. Even if the court assumed for purposes of this opinion that Eichenwald's statement to Ms. Opel was false and defamatory, plaintiff has failed to set forth evidence showing that he is entitled to summary judgment. The court could find no evidence in the record that Eichenwald's statement to Ms. Opel caused damage to plaintiff's reputation. As stated before, plaintiff is not entitled to recover for defamation where he offers no evidence of harm to his reputation, no evidence of damage by reason of injury to his reputation, and no proof of financial loss flowing therefrom. Gobin, 232 Kan. at 7, 649 P.2d at 1244. Accordingly, plaintiff's motion for summary judgment with respect to this statement is denied.
D. Coerced Sexual Relationship
Plaintiff contends that Eichenwald defamed him by telling her attorney, Lynne Bratcher, that plaintiff had coerced Eichenwald into a sexual relationship by using his power over Eichenwald's case. Plaintiff argues that such statements were defamatory because they impute unfitness for plaintiff's profession as an attorney.
Eichenwald denies that she told Ms. Bratcher that plaintiff had coerced her into a sexual relationship and further argues that the allegations Ms. Bratcher made in her bar complaint may have been Ms. Bratcher's opinion of the situation. Indeed, Ms. Bratcher testified that her sources for the information contained in her bar complaint came from Eichenwald and from letters from plaintiff that Ms. Bratcher had read. It is, therefore, unclear from the record exactly what Eichenwald told Ms. Bratcher. A genuine issue of fact therefore remains as to whether Eichenwald told Ms. Bracher that plaintiff coerced her into a sexual relationship or whether Ms. Bratcher came to that conclusion based on a truthful account of the underlying facts. Plaintiff's summary judgment motion on this issue is denied.
E. Negligence Claims Against Nordstrom
Plaintiff contends that, after Eichenwald reported to Nordstrom in 1998 that plaintiff was a stalker or was stalking her, Nordstrom negligently failed to instruct Eichenwald not to communicate these allegations to her fellow Nordstrom employees; negligently failed to supervise Eichenwald to prevent her from communicating these allegations to her fellow Nordstrom employees; and negligently failed to prevent the republication of false and defamatory statements about plaintiff by Eichenwald and other Nordstrom employees.
Kansas law recognizes a claim by non-employee third parties for negligent supervision and retention. Kan. State Bank Trust Co. v. Specialized Transp. Serv., Inc., 249 Kan. 348, 362, 819 P.2d 587, 598 (1991). Liability for negligent supervision and retention is not vicarious, but is direct liability which lies when an employer has reason to believe that undue risk of harm exists as a result of the employment of the alleged tortfeaser. K Mart v. Dr. Pepper Co., 923 F. Supp. 1380, 1389 (D.Kan. 1996) (citing Kan. State Bank, 249 Kan. at 362, 819 P.2d at 598). Liability is limited to any harm that was within the foreseeable risk, and foreseeability may be determined as a matter of law only when reasonable persons could arrive at but one conclusion. Id.
Plaintiff contends that Nordstrom was negligent in that it failed to enforce its own workplace confidentiality policy. Nordstrom had in place a policy which stated, "Your complaint will be investigated as promptly, thoroughly and confidentially as possible." Plaintiff claims that he would never have been defamed if Nordstrom had enforced its written confidentiality policy. The court, however, finds that the policy only requires Nordstrom to investigate reports confidentially. The confidentiality provision at issue does not require Nordstrom to inform Eichenwald that she could not discuss plaintiff with other individuals, nor does the policy render Nordstrom liable for negligent supervision for failing to instruct Eichenwald not to discuss the matter.
However, Nordstrom may still be liable for negligent supervision if Nordstrom negligently failed to prevent Eichenwald from committing a tort against plaintiff. Foremost, for this claim to go forward, a jury would have to find that Eichenwald committed the tort of defamation. Initially, plaintiff must show that Eichenwald made "stalking" statements to fellow Nordstrom employees. The court already has determined that this is a genuine issue of fact which requires determination by a jury. Moreover, as previously stated, plaintiff also must show that Eichenwald's statements, if any, to fellow Nordstrom employees were false, were understood in a defamatory sense, and harmed plaintiff's reputation.
Significantly, a claim for negligent supervision requires that any harm sustained by the plaintiff was foreseeable by the employer. Plaintiff points to the testimony of Eichenwald's department manager, Tish Tucker, who testified that Eichenwald fabricates stories. Specifically, Ms. Tucker testified that Eichenwald had misreported her whereabouts on one occasion. The court is aware that, under Kansas law, it is not necessary that the precise nature of the injury alleged would have been foreseen by the employer. Kan. State Bank, 249 Kan. at 362, 819 P.2d at 598. However, the court finds that Ms. Tucker's testimony, by itself, is insufficient to establish that Nordstrom should have foreseen harm to plaintiff as a result of alleged defamatory remarks Eichenwald may have made.
Plaintiff also contends that Nordstrom was aware that Eichenwald was uttering defamatory statements about him to her fellow employees. For support, plaintiff points to Nordstrom's response to an interrogatory that asked:
5. Please state the names of any Nordstrom employees to whom defendant Helene Eichenwald has ever stated that plaintiff was following, stalking, harassing, frightening or otherwise disturbing her in any way, or words of similar effect.
(Plaintiff's First Set of Interrogatories, No. 5.) Nordstrom responded by naming approximately twenty-five current or former Nordstrom employees that, "[t]o the best of Nordstrom Management's knowledge, Helene Eichenwald has stated that plaintiff was following, stalking, harassing, frightening or otherwise disturbing her in any way." Nordstrom further answered, "Nordstrom management believes that Helene Eichenwald may have begun making remarks of this nature regarding plaintiff in early 1998." (Defendant Nordstrom, Inc.'s Answers to Plaintiff's First Set of Interrogatories).
The court notes that Nordstrom's response does not state that Eichenwald told her fellow Nordstrom employees that plaintiff was "stalking" her, nor does the response indicate whether Nordstrom had knowledge at the time Eichenwald may have made any such statements. However, if Nordstrom did have knowledge that Eichenwald was telling other employees that plaintiff was a "stalker" or was "stalking" her, and assuming that any such statements were defamatory, a reasonable fact finder could conclude that Nordstrom should have foreseen that plaintiff's reputation would be injured by such statements.
The court already has determined that factual issues remain in dispute as to whether Eichenwald told her fellow Nordstrom employees that plaintiff was a stalker or was stalking her. Pertinent to plaintiff's claim of negligent supervision, the court also finds that there is a question of fact as to whether Nordstrom had knowledge of any such statements and, if so, whether such knowledge gave Nordstrom reason to believe that an undue risk of harm to plaintiff existed.
In addition, for liability under the theory of negligent supervision, plaintiff must show that any such statements made by Eichenwald were uttered while acting in the course of her employment, that the statements were made while on Nordstrom's premises, or that there exists a nexus between the uttered statements and Nordstrom's operations. Schmidt v. HTG, Inc., 265 Kan. 372, 401-402, 961 P.2d 677, 695 (1998). Because the record is unclear as to whom, when, and under what circumstances any such statements were made, the court finds that these issues are not appropriate for summary judgment. The court denies Nordstrom's motion for summary judgment on the issue of negligent supervision.
F. Nordstrom's Supplemental Motion for Summary Judgment
Nordstrom submitted a pleading entitled "Supplemental Motion for Summary Judgment" (Doc. 90). The pleading is a one page document which requests that 1) an attached exhibit replace an exhibit in Nordstrom's original motion for summary judgment and 2) an attached exhibit be added to Nordstrom's original motion for summary judgment. In its prayer for relief, Nordstrom requests that the court "grant its Motion and Supplemental Motion for Summary Judgment [and] enter judgment against plaintiff David Bryan."
The court is unclear as to whether Nordstrom is moving for summary judgment or merely moving for the court to allow for the referenced exhibits to be replaced and added. To the extent that Nordstrom requests the referenced exhibits be replaced and added, the court considers such exhibits in rendering this opinion. However, to the extent that Nordstrom moves for summary judgment, the motion is denied.
IT IS THEREFORE ORDERED that plaintiff's motion for partial summary judgment (Doc. 81) is denied, defendant Eichenwald's motion for summary judgment (Doc. 84) is denied, and defendant Nordstrom's motion for summary judgment (Doc. 87) and supplemental motion for summary judgment (Doc. 90) are denied.