LOS ANGELES (Legal Newsline) – Lowe’s is asking a federal judge to throw out the lawsuit of a man who caused a stink in one of its California stores because a fellow shopper wasn’t wearing a face mask, only to have that shopper spit in his face.
In an Oct. 15 motion to dismiss, Lowe’s calls the case of John Birke an “opportunistic lawsuit” that “runs afoul of a host of barriers precluding him from ever recovering relief.”
Birke says on June 28 he spotted a Lowe’s customer not wearing a face mask, in violation of Gov. Gavin Newsom’s COVID-19 directives. He claims he asked Lowe’s employees to force the man to comply with the law but they would not do so.
Birke also says he tried to call the cops but could not reach them. In retaliation, the mask-less shopper spit in his face four times, he claims.
The lawsuit charges Lowe’s with fraud, public nuisance and negligence. Birke’s lawyer is Michael Sohigian, who seeks at least $20 million.
“(E)xposure does not necessarily mean harm will ensue,” attorneys for Lowe’s wrote in their motion.
“Birke has admitted he tested negative for COVID-19. He can therefore never suffer the negative effects of the virus as a result of the incident, let alone produce a reliable medical or scientific opinion he will suffer those effects.”
Further, the company argues it was not obligated by the June 18 face mask order “to do anything, including force its customers to wear a mask.” The order, Lowe’s says, does not include any language that directs businesses to enforce the mask requirement.
And given that the order was issued under the California Emergency Services Act, Lowe’s should enjoy immunity from any liability, its lawyers say. That’s because immunity usually afforded the State during an emergency is extended to private persons called upon to carry out measures intended to quell an emergency, Lowe’s says.
“If Lowe’s was duly impressed into service by the emergency Mask Order (i.e., charged with enforcing it), any action or failure to act by Lowe’s in carrying out, complying with or attempting to comply cannot give rise to civil liability,” the motion says.
“Thus, actions taken by Lowe’s to encourage customers to comply with the order, and decisions made by Lowe’s as to when and how to enforce the order in the absence of specific guidance from the state, cannot subject it to liability.”