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90. Should the trial court grant the customer's motion?
The store filed an answer to the customer's complaint, asserting the affirmative defense of contributory negligence. The customer has moved to strike the affirmative defense. Traditional rules of contributory negligence apply.
A security guard, dressed in plain clothes, was working for a discount store when a customer got into a heated argument with a cashier over the store's refund policy. Without identifying himself as a security guard, the security guard suddenly grabbed the customer's arm. The customer attempted to push the security guard away, and the security guard knocked the customer to the floor, causing injuries. The customer sued the discount store for battery on a theory of vicarious liability for the injuries caused by the security guard.
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A is incorrect. The trial court should grant the customer's motion. Contributory negligence can be a defense to vicarious liability, but not to battery.
B is incorrect. The trial court should grant the customer's motion. The security guard was dressed in plain clothes so the customer can make the argument that he was unaware of the presence of any security personnel making the action unforeseeable.
D is incorrect. The court should grant the customer's motion because contributory negligence is not an available defense. The fact that the customer did not know that he was pushing someone away who was employed as a security guard does not change that fact.