IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY RAYMOND RINGGOLD, JR., ) ) Plaintiff, ) C.A. No. 05C-04-075 (MJB) ) v. ) ) KOHL S DEPARTMENT STORES, INC., ) and OMNICOM GROUP ) HOLDINGS, INC., ) ) Defendants. ) Submitted: October 5, 2006 Decided: December 21, 2006 Upon Plaintiff s Motion to Amend Complaint DENIED. OPINION AND ORDER Gary S. Nitsche, Esquire, Weik, Nitsche, Dougherty & Componovo, Attorney for Plaintiff. Gerald J. Hager, Esquire, McCullough & McKenty, P.A., Attorney for Defendants. BRADY, J.
Factual Background Plaintiff, Raymond Ringgold, brought this action for injuries allegedly sustained in a fall in Kohl s Department Store ( Kohl s ), Defendants place of business. Specifically, the allegations are that on November 10, 2003, while walking in Kohl s, Plaintiff fell on a bag of garbage left in an aisle by an employee, and, as a result, sustained injuries. On June 27, 2006, counsel for both parties took the deposition of Antonia Vasquez, an eyewitness who was, at the time of the incident, an employee of Kohl s. At the deposition, Ms. Vasquez related that the store manager asked her to make false statements regarding Plaintiff s fall in the incident report. According to Ms. Vasquez, she was asked to report that the Plaintiff was walking backwards when he fell on the bag of trash and that, immediately prior to the incident, the Plaintiff had made inappropriate sexual remarks to Ms. Vasquez in the bathroom. 1 Ms. Vasquez claims that she refused to lie on the report and that thereafter, her work hours were cut so significantly that she eventually had to quit. 1 At the deposition, Ms. Vasquez indicated that earlier on the day of the incident, while she was cleaning the bathrooms, a young man had made inappropriate sexual remarks to her. Ms. Vasquez is certain that the man in the bathroom was not the same man who later fell over the bag of garbage. See Plaintiff s Brief, Exhibit A, Deposition of Ms. Vasquez, at 8-10. 1
Following the deposition, Plaintiff filed the instant Motion to Amend the Complaint to add a count for fraud and seek punitive damages on the ground that Defendant s wrongful conduct in falsifying the incident report constitutes willful, wanton, and reckless conduct thereby entitling Plaintiff to punitive damages. For the reasons that follow, Plaintiff s motion is DENIED. Contentions of the Parties The proposed Amendment to the Complaint alleges that subsequent to Plaintiff s fall, a member of Kohl s management approached Ms. Vasquez and requested that she provide false information on the incident report, specifically stating that Plaintiff was walking backwards as opposed to forward when he fell over the trash bag that was left in the aisle, and that Plaintiff attempted to sexually harass [Ms. Vasquez] in the bathroom prior to the fall. 2 The proposed Amendment alleges, therefore, that the Defendant prepared an incident report that it knew was false by information, knowledge, and belief with reckless indifference to its falsity with the intent to induce Plaintiff to act or refrain from acting in accordance with pursuing 2 Plaintiff s Brief, Exhibit B, Plaintiff s proposed Amended Complaint 2
the instant lawsuit, 3 and further, that [a]s a result of the Defendants willful, wanton and reckless conduct, the Plaintiff is entitled to punitive damages. 4 Defendants challenge the sufficiency of Plaintiff s pleadings in the proposed Amended Complaint. Specifically, Defendants argue that Plaintiff failed to allege it acted in reliance on the false report or that it suffered any injury as a result thereof. Furthermore, Defendants argue that even if the allegations raised by the former employee are true, they do not allege a cause of action for punitive damages because Plaintiff has failed to show that the alleged fraud in any way led to the damages alleged. Analysis Pursuant to Civil Rule 15(a), after responsive pleadings have been filed, a party may amend the party s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Motions to amend should be freely given unless the amendment on its face is not legally viable. 5 Allegations of fraud must be pled with particularity. 6 3 Plaintiff s Brief, Exhibit B, Plaintiff s proposed Amended Complaint 4 Plaintiff s Brief, Exhibit B, Plaintiff s proposed Amended Complaint 5 Dickens v. Costello, 2002 WL 1463106, at *2, n.9 (Del. Super.). 6 Super. Ct. Civ. R. 9(b). 3
Plaintiff s proposed claim of fraud To properly raise allegations of fraud, a plaintiff must allege that: 1) the defendant falsely represented or omitted facts that the defendant had a duty to disclose; 2) the defendant knew or believed that the representation was false or made the representation with a reckless indifference to the truth; 3) the defendant intended to induce the plaintiff to act or refrain from acting; 4) the plaintiff acted in justifiable reliance on the representation; and 5) the plaintiff was injured by its reliance. 7 (Emphasis added) This action arose out of Kohl s alleged negligence in failing to properly remove a bag of garbage, which allegedly caused Plaintiff s fall and personal injuries. The alleged fraudulent conduct in this case occurred subsequent to the injury that is the cause of action. In other words, the alleged fraud did not occur in the course of the incident leading to the injury; it occurred after-the-fact, in an attempt to cover-up the alleged negligence. Plaintiff does not claim to have sustained further injury as a result of the alleged fraud. The Court, therefore, finds that Plaintiff s claim of fraud is unsupported by the facts in this case, as Plaintiff s damages did not arise out of the alleged fraud. 7 DCV Holding, Inc. v. Conagra, Inc., 889 A.2d 954, 958 (Del. 2005). 4
Plaintiff s proposed claim for punitive damages Plaintiff also seeks to amend the Complaint to add a claim for punitive damages. The purpose of an award of punitive damages is to punish the person doing the wrongful act and to deter him, as well as others, from similar conduct in the future. 8 In Delaware, punitive damages may be awarded for wanton, willful, or reckless conduct, but only in matters in which compensatory damages are awarded. 9 However, the award of punitive damages should bear a relationship to [the] conduct that gives rise to the claims. 10 In Marro v. Gopez, M.D., 11 this Court denied a motion to amend the complaint to add a claim for punitive damages predicated on defendant s attempts to cover-up the alleged negligence. Marro involved a medical malpractice action in which it was alleged that the defendant had performed surgery on the wrong cervical disk. Plaintiff alleged that the defendant had altered certain medical records after the surgery in order to cover-up his mistake. Although the defendant conceded liability for the surgical mistake, 8 See Restatement (second) of Torts 908 (1979). 9 M. Sheats v. Bowen, 318 F.Supp. 640, 647 (D. Del. 1970)( [P]unitive damages may be awarded in addition to compensatory damages when an act which causes personal or property damage was either maliciously, wantonly or recklessly done in disregard of the rights of others. ); Connelly v. Willey, 1989 WL 16972, at *3 (Del. Super. 1989)( [P]unitive damages may be awarded only if compensatory damages are first awarded. ). 10 Malcom v. Little, 295 A.2d 711, 714 (Del. 1972). 11 1996 WL 453311 (Del. Super.). 5
he disputed plaintiff s claim for punitive damages. The Court found that by itself, wrongful conduct by the tortfeasor after-the-fact does not necessarily form a predicate for punitive damages. 12 Similarly, in the instant case, Plaintiff seeks leave to add a claim for punitive damages for Defendants attempt to prepare a false report after Plaintiff had fallen and sustained the alleged injuries. Plaintiff does not allege it suffered additional injury as a result of the false representations. Thus, there is no relationship between the claim for punitive damages and Plaintiff s alleged injuries. Because Plaintiff s claim for punitive damages is dependent upon the alleged fraudulent conduct which occurred subsequent to the injury, and because it bears no relationship to the alleged negligence claims, the Court finds the claim for punitive damages is unsupported by the factual circumstances of this case. 12 Id. at 6. 6
Conclusion For the foregoing reasons, Plaintiff s Motion for Leave to Amend Complaint to include claims of fraud and punitive damages is DENIED. IT IS SO ORDERED. /s/ M. Jane Brady Superior Court Judge 7