Agency and Assault for Gimbels against DiDomenico
On March 29, 1983, Barry Mapp was observed in the JCPenney department store in Upper Darby, Pennsylvania, by security personnel, who suspected that the might be a shoplifter. Michael DiDomenico, a security guard employed by JCPenney, followed Mr. Mapp when he left the store and proceeded to Gimbels department store. There, Mr. DiDomenico notified Rosemary Federchok, a Gimbels security guard, about his suspicions. Even though his assistance was not requested, Mr. DiDomenico decided to remain to assist in case Ms. Federchok, a short woman of slight build, required help in dealing with Mr. Mapp if he committed an offense in Gimbels. It came as no surprise when Mr. Mapp was observed taking items from the menâ??s department store; when he attempted to escape, he was pursued. Although Ms. Federchok was unable to keep up, Mr. DiDomenico contined to purse Mr. Mapp and ultimately apprehended him in the lower level of Gimbels parking lot. When Ms. Federchok arrived with Upper Darby police, merchandise that had been taken from Gimbels was recovered. Mr. Mapp, who had been injured when he jumped form one level of the parking lot to another, was taken to the Delaware County Memorial Hospital, where he was treated for a broken ankle. Mr. Mapp filed suit against Gimbels for injuries sustained while being chased and apprehended by Mr. DiDomenico. He alleged in his complaint that Mr. DiDomenico, while acting as an agent of Gimbels, had chased him, had struck him with a nightstick, and had beaten him with his fists. Gimbels says it is not liable because Mr. DiDomenico was not its agent. Is Gimbels correct? [Mapp v Gimbels Depâ??t Store, 540 A.2d 941 (Pa. 1988)]
1. Under what theory might Mr. Mapp argue that Gimbels is liable for the assault committed against Mapp by Mr. DiDomenico, an employee of J.C. Penney's?
2. Would Mr. Mapp be successful under the theory you chose? Why or why not?