WILLIAM D. QUARLES, Jr., District Judge.
Jane Doe
AEO owns American Eagle, a men's and women's clothing store that largely caters to 18 to 25 year old customers. ECF Nos. 35-2 at 4; 38-3 at 15.
On October 22, 2012, Doe went to the York Galleria American Eagle store (the "store") to shop for jeans. ECF Nos. 35-3 at 3; 38-2 at 15.
Because she was not wearing underwear, Doe was naked from the waist down while trying on the jeans. ECF No. 35-3 at 4-6. After pulling up a pair of jeans, she noticed a black iPhone positioned under the fitting room door. Id. at 6; ECF No. 38-2 at 23. A male customer had placed the iPhone under the door and may have taken a picture or video of her. ECF No. 35-3 at 7; see also ECF No. 38-2 at 37. Doe screamed to alert the sales associates and ran after the man, who had fled the store. ECF No. 38-2 at 24-25. Lindstrom chased the man, but lost him. ECF No. 38-6 at 5. Lunz called the police, who arrived soon thereafter, but the man was never caught. ECF Nos. 38-3 at 12; 38-7 at 1-2; 38-8 at 1.
AEO has security policies and procedures to protect customers' privacy and safety in the event of an emergency. ECF No. 35-2 at 5-6. To protect customers' privacy, the fitting rooms "are in a segregated area" away from the sales floor, and the fitting room doors lock automatically. Id. An employee should monitor the fitting rooms "whenever possible," in part, so that customers would not have to leave the fitting room for additional sizes. Id. at 7; ECF Nos. 38-3 at 10; 38-5 at 3.
The store did not have security cameras or security guards. ECF No. 35-5 at 3. To protect customers, employees "were trained to talk to all the customers . . . and know who's in the store if something were to happen." Id. The store "[tried] to zone [the] employees so that [they] had views of every single area." Id. Employees "were assigned to check in on people in the fitting rooms." Id.
The store had not had prior similar incidents, and generally had a low level of crime. ECF Nos. 35-5 at 3-4; 35-6 at 3; 38-3 at 15; 38-9 at 4. However, three similar incidents had occurred at other American Eagle stores before October 22, 2012. ECF No. 38-9 at 4.
According to Sabella, unisex fitting rooms "are standard in the industry." ECF No. 35-2 at 8. Segregated fitting rooms are disfavored because store personnel would have to monitor two entrances, which is "more difficult." Id.; ECF No. 38-3 at 15.
Doe's security expert Jack Dowling testified that he "think[s]" the industry standard on fitting room location in specialty retail stores is "where they can fit it in." ECF No. 38-12 at 49. Dowling does not know what the industry standard is in connection with whether retail specialty stores have associates monitor fitting rooms; however, one of AEO's competitors, "Abercrombie and Fitch," requires a sales associate "to remain permanently stationed in fitting rooms." Id. at 50.
According to Dowling, "the standard security practice in any industry," including the retail industry, "is to conduct a security risk assessment and, based on that assessment, to provide the necessary corrections or controls." Id. (emphasis added). However, "there is no evidence that [AEO conducted a] security risk assessment . . . to determine the obvious security flaws with less than full-length doors." ECF No. 38-10 at 3; see also id. at 5. An assessment would have disclosed that "realistic privacy" in unisex fitting rooms requires full-length doors, visibility from the main sales area, and dedicated monitoring. Id. at 4.
On December 30, 2013, Doe sued AOE in the Circuit Court for Baltimore County for negligence. ECF No. 2.
Under Rule 702, expert testimony is admissible if it will assist the trier of fact and is (1) "based upon sufficient facts or data," (2) "the product of reliable principles and methods," and (3) "the principles and methods [have been applied] reliably to the facts of the case." Fed. R. Evid. 702. As the Daubert Court has explained, evidence is admissible under Rule 702 if "it rests on a reliable foundation and is relevant." Daubert, 509 U.S. at 597; see also Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (extending Daubert to "the testimony of engineers and other experts who are not scientists"). The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence. Id. at 590.
As a threshold matter, the proffered expert must have "`some special skill, knowledge or experience,' concerning the particular issue before the court." Shreve v. Sears, Roebuck & Co., 166 F.Supp.2d 378, 393 (D. Md. 2001) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 517 (7th Cir. 1998)). "[W]hile the fit between an expert's specialized knowledge and experience and the issues before the court need not be exact[,] . . . an expert's opinion is helpful to the trier of fact, and therefore relevant under Rule 702, `only to the extent the expert draws on some special skill, knowledge or experience to formulate that opinion.'" Id. at 392-393 (quoting Ancho, 157 F.3d at 518).
Several factors may be relevant to the determination of reliability, including: (1) whether a theory or technique has been tested, (2) whether it has been subjected to peer review and publication, (3) the known or potential rate of error, and (4) whether the theory or technique is generally accepted within a relevant scientific community. Copper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001). The factors are "neither definitive nor exhaustive, and some may be more pertinent than others depending on the nature of the issue, the expert's particular expertise and the subject of his testimony." Newman v. Motorola, Inc., 218 F.Supp.2d 769, 733 (D. Md. 2002).
AEO seeks to exclude Doe's technology expert Steven Stern, Esq., and her security expert Jack Dowling. ECF No. 33.
Doe seeks to have Stern testify as an expert on liability and damages. ECF No. 38 at 16. On liability, Stern opines that news stories about customers being filmed or observed in fitting rooms, websites about "fitting room voyeurism," and the availability of cellular phones capable of capturing and disseminating images shows that the underlying incident was foreseeable. ECF No. 38-11 at 2-3. On damages, Stern opines that monitoring the Internet for Doe's image will be difficult and expensive, and "it is more than likely impossible" for Doe to remove any images from the Internet. Id. at 3.
AEO argues that Stern is not qualified to render an opinion about the foreseeability of the underlying incident or about whether a cellular phone can fit under a fitting room door to capture an image.
Stern is a licensed attorney and President of Legal Technology Solutions, LLC. ECF No. 38-11 at 4. He has "substantial experience in solving complex technology issues," and often advises law firms on "Internet-related privacy issues." Id. at 5.
Although "Rule 702 was intended to liberalize the introduction of relevant expert evidence,"
The Court is unable to identify the "special skill" or "knowledge" underlying Stern's opinions because his technological expertise — including his work on identifying and removing Internet images — bears little relationship to the foreseeability of fitting room invasions of privacy. "The fact that a proposed witness is an expert in one area, does not ipso facto qualify him to testify as an expert in all related areas." Id. at 391. Stern's foreseeability opinions apparently stem from conducting a basic Internet search and "common knowledge." See ECF Nos. 38-11 at 7, 9-10; 38-16 at 23, 29, 32-34.
AEO argues that Stern's damages opinion is irrelevant because there is no evidence supporting that opinion. ECF No. 33-1 at 20-21. Doe argues that Stern's damages testimony is relevant to whether her "fear that her naked images and/or videos are present on the Internet" is "reasonable," and AEO cannot "escape" its failure to designate a damages expert by contending that Stern's testimony is irrelevant. ECF No. 38 at 19-20.
According to Stern, Doe "will have to pay for years of monitoring or risk that the images or her identity will become linked to this incident." ECF No. 38-11 at 15. However, Stern has neither met nor spoken to Doe, and does not know whether she intends to monitor the Internet for her image. ECF No. 38-16 at 35. He does not know whether (1) Doe's image has been posted online, (2) she has tried to identify her image online, or (3) she has incurred any monitoring or removal costs. Id. at 36. Nonetheless, he opines that "to a reasonable degree of professional certainty" Doe "will incur" costs of about "$12,000 per year to monitor and mitigate dissemination of images," and about $15,000 in costs to forensically examine the alleged perpetrator's "mobile device, home systems, and cloud accounts" if he is caught. ECF No. 38-11 at 15.
Although "mere weaknesses in the factual basis of an expert witness' [s] opinion bear on the weight of the evidence rather than on its admissibility,"
Doe seeks to have Dowling testify about liability. ECF Nos. 38 at 9. Dowling opines that the incident was foreseeable because of (1) the "unmonitored, coed, and secluded" fitting rooms, which lacked full-length doors; (2) the availability of miniature cameras and camera phones; and (3) new reports about similar and "other privacy and sex offense incidents" at shopping malls and retail stores. ECF No. 38-10 at 2. Dowling further opines that AEO's security was deficient because AEO had failed to conduct a security assessment, which would have revealed the need for full-length doors, greater visibility from the sales area, and dedicated monitoring. Id. at 3-5.
AEO argues that Dowling is not qualified to render an opinion on retail fitting room security, his opinions lack a sufficient factual basis, and they are unreliable. ECF No. 33-1 at 17-27. Doe argues that Dowling has "extensive experience" in retail security, and his opinions are well-supported and reliable. ECF No. 38 at 9-15.
Since 1998, Dowling has been President and Principal Consultant for JD Security Consultants, LLC. ECF No. 38-10 at 7. He has about 30 years of experience in university campus security, and has provided security advice to dozens of colleges, retail stores, medical facilities, hotels, restaurants, and other public and commercial entities. Id. at 7-8, 17-27.
AEO argues that Dowling is not qualified because "he has no specific experience with the fitting rooms in retail apparel stores," and "does not know what is standard in other retail stores." ECF No. 33-1 at 31. The aforementioned summary of Dowling's qualifications shows that AEO's argument is wrong. Further, not even AEO's senior manager of store planning is aware of an industry standard on fitting room design. See ECF No. 38-5 at 27-28. Although Dowling may have more experience in campus — as opposed to retail — security, "the fit between an expert's specialized knowledge and experience and the issues before the court need not be exact." Shreve, 166 F. Supp. 2d at 393; Smith, 2010 WL 1137507, at *2. Unlike Stern, Dowling's opinions are drawn from his "special skill, knowledge [and] experience" in security generally and in retail specifically, and he has frequently testified about similar matters before other courts. Accordingly, Dowling is qualified to testify as an expert.
AEO faults Dowling for relying on new reports to opine that the incident was foreseeable. ECF No. 33-1 at 21-26. However, Dowling also relied on discovery materials, AEO's policies and procedures, and site visits to three American Eagle stores, including the York Galleria store. ECF No. 38-10 at 1-4. The asserted flaws in Dowling's reliance on new reports are the proper subject of cross-examination. See M-Edge Accessories LLC v. Amazon.com Inc., 2015 WL 403164, at *16; i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831, 856 (Fed. Cir. 2010) ("[I]t is not the district court's role under Daubert to evaluate the correctness of facts underlying an expert's testimony."). Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596; see also Meterologic Inc. v. KLT, Inc., 368 F.3d 1017, 1019 (8th Cir. 2004) ("The district court must exclude expert testimony if it is so fundamentally unreliable that it can offer no assistance to the jury, otherwise, the factual basis of the testimony goes to the weight of the evidence."). The issues AEO raises about the news reports are straightforward; thus, with able cross-examination, a jury can determine whether the asserted deficiencies undermine Dowling's opinion.
AEO argues that Dowling's opinions are unreliable because he failed to consider local crime statistics or obtain information from professional groups about fitting room invasions of privacy. ECF No. 33-1 at 26-28. Doe argues that local crime statistics are not necessarily relevant to foreseeability, and it is reasonable to expect some variation in methodology in each case. ECF No. 38 at 13-14.
Dowling testified that in forming his opinion about AEO's security adequacy, he relied, inter alia, on the 2003 ASIS International General Security Risk Assessment Guideline (the "ASIS Guide"), and the 2008 International Association of Professional Security Consultants guideline on forensic best practices (the "IAPSC" Guide). ECF No. 38-12 at 6-7; see also ECF Nos. 38-13 (the ASIS Guide); 38-14 (the IAPSC Guide). The ASIS Guide notes that security practitioners may consider local crime statistics or information from professional groups and associations to determine risk to a given location; however, there are several other sources of useful information. ECF No. 38-13 at 2. To conduct a litigation-related security survey, the IAPSC Guide recommends (1) reviewing the incident report and related materials, the actions and qualifications of security personnel, and premises policies and procedures, and (2) conducting a site inspection. ECF No. 38-14 at 4-5. Dowling complied with those recommendations. See ECF No. 38-10 at 1-2, 3-4. Further, some variation in the "methodology to be used in a typical premises security case" is "reasonable." Id. at 2.
Dowling's expert report and deposition testimony demonstrate that his methodology is defensible, and his opinion is the product of reliable principles and techniques. Accordingly, AEO's motion will be denied as to Dowling.
The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
The Court must "view the evidence in the light most favorable to . . . the nonmovant and draw all reasonable inferences in her favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the Court must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (citation and internal quotation marks omitted). The opposing party must produce evidence upon which a reasonable fact finder could rely. Celotex Corp., 477 U.S. at 322-23. The mere existence of a "scintilla" of evidence is insufficient to preclude summary judgment. Anderson, 477 U.S. at 252.
Counts one, two, and four allege — in essence — that AEO breached its duty to protect customers from harm. See supra note 26. AEO argues that Doe has neither proffered evidence about industry practices with respect to fitting room "measures," nor shown that it failed to exercise reasonable care. ECF No. 35-1 at 7-12. AEO further argues that Doe has not shown that the underlying incident was foreseeable. Id. at 12-14.
To establish negligence under Pennsylvania law, a plaintiff must prove that: (1) "the defendant had a duty to conform to a certain standard of conduct"; (2) "the defendant breached that duty"; (3) "such breach caused the injury in question"; and (4) the plaintiff incurred "actual loss or damage." Chapman v. Chaon, No. 14-4082, 2015 WL 4760515, at *2 (3d Cir. Aug. 13, 2015) (quoting Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008 (2003)).
"The standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, licensee, or invitee." Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123 (1983). One "who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land" is a "business invitee." Palange v. City of Philadelphia Law Dept., 433 Pa.Super. 373, 640 A.2d 1305, 1308 (Pa. Super. Ct. 1994); Vazquez v. Wal-Mart Stores, Inc., No. 09-2609, 2010 WL 3191852, at *3 n.7 (E.D. Pa. Aug. 5, 2010). The parties agree that Doe was a business invitee. See ECF Nos. 35-1 at 6-7; 38 at 20. The standard of care owed to a business invitee is "the highest duty owed to any entrant upon the land." Vazquez, 2010 WL 3191852, at *3 (quoting Treadway v. Ebert Motor Co., 292 Pa.Super. 41, 436 A.2d 994, 998 (Pa. Super. Ct. 1981)). However, "[t]o render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances." Feld v. Merriam, 506 Pa. 383, 390, 485 A.2d 742, 745 (1984)
Pennsylvania has adopted § 344 of the Restatement (Second) of Torts as stating the law on a land possessor's duty to a business invitee. See Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 436, 246 A.2d 875, 878 (1968). Under § 344,
Restatement (Second) of Torts § 344 (1965); Moran, 431 Pa. at 436, 246 A.2d 875; see also Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 431, 418 A.2d 480, 482 (1980).
Since Moran, Pennsylvania courts have interpreted § 344 as requiring plaintiffs to establish three elements:
Moultrey v. Great A & P Tea Co., 281 Pa.Super. 525, 534, 422 A.2d 593, 598 (1980); Carswell v. Se. Pennsylvania Transp. Auth., 259 Pa.Super. 167, 173, 393 A.2d 770, 773 (1978).
Section 344 applies to "acts of third persons" resulting in "physical harm." Restatement (Second) of Torts § 344. The parties agree that Doe's injuries were allegedly caused by an unknown male perpetrator; i.e., a "third person." See ECF Nos. 35-3 at 6; 38-2 at 23. However, neither party has addressed the requirement for "physical harm." Doe testified that the incident has caused her "anxiety and fear," including "flashbacks." ECF No. 38-2 at 31-32. Thus, the Court must first decide whether Doe has proffered sufficient evidence of the type of injury for which a possessor may be held liable under § 344.
Cases involving § 344 liability typically involve bodily injuries. See, e.g., Moran, 431 Pa. at 434, 246 A.2d 875 (loss of hearing); Moultrey, 281 Pa. Super. at 527, 422 A.2d 593 (slip and fall); Murphy, 274 Pa. Super. at 430, 418 A.2d 480 (stabbing); Vazquez, 2010 WL 3191852, at *1 (slip and fall); Danielle Salamone v. The Catholic Archdiocese of Philadelphia & Brian Cohen, No. No. 1566., 1995 WL 1316037 (Pa. Com. P1. Nov. 29, 1995) (rape).
The second element involves the foreseeability of third party conduct. Because "the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur." Moran, 431 Pa. at 436, 246 A.2d 875 (quoting Restatement (Second) of Torts § 344 cmt. f). Such knowledge may arise from the possessor's "past experience" or the "place or character of [the] business." Id. at 436-37 (liability was a question of fact for the jury when evidence demonstrated that the defendants had notice of prior firecracker explosions at a drive-in theater); Vazquez, 2010 WL 3191852, at *3.
AEO argues that the incident was not foreseeable because the type of crime allegedly committed had never happened at the York, Galleria American Eagle store. ECF No. 35-1 at 12-13. Doe argues that prior instances at other American Eagle stores count as AEO's "past experience" from which this incident was foreseeable. ECF No. 38 at 21-22.
Although courts have typically found acts of third parties foreseeable when past incidents have occurred on the same premises,
Feld, 506 Pa. at 391, 485 A.2d 742 (emphasis added). When — as here — the defendant owns a chain of over 1,000 stores, many of which have identical fitting room design,
As noted above, the third element requires Doe to show that AEO failed "either to take reasonable care to discover that such acts were being done or were likely to be done, or to take reasonable care to provide appropriate precautions." Moultrey, 281 Pa. Super. at 534, 422 A.2d 593 ("[T]the invitee must prove either that the proprietor had a hand in creating the harmful condition, or that he had actual or constructive notice of such condition."). AEO argues that Doe has failed to establishe the industry standard with respect to fitting rooms and therefore cannot establish what is reasonable. ECF No. 35-1 at 14. However, Sabella — AEO's senior manager of store planning — does not believe there is an industry standard. See ECF No. 38-5 at 27-28. AEO has not provided — nor has the Court found — authority for the proposition that reasonableness must be established by reference to an "industry standard." Whether AEO acted reasonably is generally "a question of fact for the [j]ury." Moran, 431 Pa. at 437, 246 A.2d 875.
Here, the record evidence shows diverse fitting room designs and locations. See ECF Nos. 38-3 at 15; 38-5 at 25-27; 38-12 at 49. At least one store requires a sales associate to remain in the fitting room at all times. See ECF No. 38-12 at 50. Doe has proffered evidence that AEO should have conducted a security risk assessment, but failed to. See ECF Nos. 38-10 at 3-5; 38-12 at 50. Doe contends that assessment would have revealed changes to fitting room design, location, and monitoring necessary to ensure customer privacy and safety, and would have made AEO aware of prior similar incidents in other stores. See ECF Nos. 38-9 at 4; 38-10 at 3-5; 38-12 at 50. Thus, a reasonable jury could find that AEO had actual or constructive notice of the danger that the incident at issue could occur, or that AEO had failed to act reasonably to prevent it. See Bonilla v. Motel 6 Operating L.P., No. 2:09CV712, 2011 WL 4345786, at *5 (W.D. Pa. Sept. 15, 2011) ("The issue of whether a defendant breached any duty may be removed from the jury only `when the case is free from doubt and there is no possibility that a reasonable jury could find negligence.'") (quoting Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 720 A.2d 1032, 1044 (1998)). Accordingly, AEO is not entitled to summary judgment on counts one, two, and four.
Count three alleges that AEO breached its duty to reasonably supervise its employees. AEO argues that summary judgment is merited because the alleged crime was not committed by one of its employees. ECF No. 35-1 at 14-16. Doe argues that Lindstrom's act of leaving the fitting rooms unattended raises a factual issue about whether AEO negligently failed to train or supervise its employees. ECF No. 38 at 23.
"Negligent supervision requires the four elements of common law negligence, i.e., duty, breach, causation, and damages." Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 488-89 (3d Cir. 2013) (citing Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 42 (Pa. Super. Ct. 2000)). The theory of negligent supervision espoused by AEO requires Doe to prove that it failed "to exercise ordinary care to prevent an intentional harm by an employee acting outside the scope of his employment." See id. at 487-88 (citing Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418, 420 (1968)); see also Restatement (Second) of Torts § 317 (1965).
However, Pennsylvania courts have adopted the Restatement (Second) of Agency § 213 (1958) as an alternate theory of liability for negligent supervision. See Bayview Loan Servicing, LLC v. Law Firm of Richard M. Squire & Associates, LLC, No. CIV.A.10-1451, 2010 WL 5122003, at *5 (E.D. Pa. Dec. 14, 2010) (citing Heller v. Patwil Homes Inc., 713 A.2d 105, 107-09 (Pa. Super. Ct. 1998)). Under § 213, an employer "conducting an activity through servants or other agents" may be liable for negligent "supervision of the activity" when employees are acting within the scope of their employment. Restatement (Second) of Agency § 213(c); See also Doe v. Liberatore, 478 F.Supp.2d 742, 760 (M.D. Pa. 2007); Bayview Loan Servicing, LLC, 2010 WL 5122003, at *6.
To be held liable, "the employer must have known or, in the exercise of appropriate care, should have known that an employee had a propensity to engage in conduct for which the employee could be held liable." McClain v. Citizen's Bank, N.A., 57 F.Supp.3d 438, 442 (E.D. Pa. 2014) (citing Keffer v. Bob Nolan's Auto Service, Inc., 59 A.3d 621, 662 (Pa. Super. Ct. 2012)).
To support her contention that AEO negligently failed to train or supervise its employees, Doe relies on evidence that —contrary to AEO's policy requiring sales associates to monitor the fitting rooms "whenever possible" — Lindstrom left the fitting rooms unattended to find Doe additional sizes of jeans when she could have asked another employee for assistance. See ECF No. 38 at 23; see also ECF Nos. 35-2 at 7; 35-5 at 3; 38-6 at 5, 55. However, there is no record evidence that AEO knew, or should have known, about the propensity for such conduct. See Keffer, 59 A.3d at 662 (granting summary judgment for employer when the plaintiff presented no evidence about employee's prior conduct); Heller, 713 A.2d at 109 (finding employer liable for negligent supervision when the plaintiff established that — for "two months and in plain view of anyone interested enough to engage in a modicum of managerial supervision" — employee had unlawfully "fleec[ed]" the defendants' clients). Accordingly, AEO is entitled to summary judgment on count three.
For the reasons stated above, AEO's motions to exclude expert testimony and for summary judgment will be granted in part and denied in part.
Although, as discussed infra, the underlying duty in all three claims is the same, the manner of AEO's alleged breach is somewhat different. More importantly, plaintiffs may plead alternative theories of liability. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 189 (3d Cir. 1999) ("[P]laintiff may plead in the alternative, and our caselaw finds no difficulty with pairing the two claims in one complaint."); Fed. R. Civ. P. 8(d)(3) ("A party may state as many separate claims or defenses as it has, regardless of consistency."). Thus, the Court will not strike counts one and two. The Court notes, however, that there can be only one recovery of damages for one wrong or injury, even when the plaintiff has presented more than one theory of recovery. See In re Sibilia's Estate, 279 Pa. 459, 460, 124 A. 137, 137 (1924); Baltimore & Pittsburgh Motor Exp., Inc. v. Sustrick, 286 F.Supp. 524, 528 (W.D. Pa. 1968).
AEO also argues — without supporting authority — that count three ("negligent supervision") must be "stricken" because the alleged crime was not committed by its employee. ECF No. 35-1 at 7. AEO raises the same argument as a basis for summary judgment, id. at 14-15; it will be addressed in that context. The Court will not strike count three.
