A Lowe’s shopper in California lost his appeal this month of a court ruling that dismissed his claim that Lowe’s workers should have intervened when another shopper repeatedly spat in his face during the worst of the COVID-19 pandemic.
Lawyer John Birke told The Charlotte Observer on Tuesday that he was “extremely disappointed” by the ruling of the California 2nd District Court of Appeal. Still, he contends, his lawsuit may have saved lives.
That’s because a day after he sued in July 2020, Lowe’s announced it would make all customers wear masks in its U.S. stores, he said.
“It’s a Pyrrhic victory,” he said, meaning that although he lost, he actually won because Lowe’s enacted a mask policy.
Lowe’s is based in Mooresville, North Carolina, and has 1,700 stores nationwide.
On June 28, 2020, Birke went to a Lowe’s Home Improvement store in the Los Angeles neighborhood of West Hills to buy an elevated toilet seat for his wife, according to his lawsuit in Los Angeles County Superior Court.
Birke spotted a maskless man in the aisle he needed to enter, the Charlotte Observer reported at the time.
From at least 40 feet away, he asked the man, “How did you get in here without a mask?” according to his lawsuit.
When Birke asked again, the man cursed and told him it was none of his business, according to the lawsuit.
Birke then asked Lowe’s workers to tell the man he was violating California Gov. Gavin Newsom’s executive order requiring the wearing of face masks in all public places, Birke said in the lawsuit.
When the workers refused to do anything, Birke said, he called 911.
Seconds later, he encountered the maskless man again. The man came within 2 feet and spat in his face “four times in rapid succession,” according to the lawsuit.
“This attack occurred about 15 feet from a Lowe’s employee, who told the attacker, ‘You just spit in his face,’ yet did absolutely nothing,” according to the lawsuit. “In fact, no Lowe’s employee so much as asked Birke if he was all right.”
The lawsuit said Lowe’s failed to protect customers’ health in its stores by allowing in shoppers without masks, in violation of public health law.
A Los Angeles County Superior Court judge found differently.
The California Department of Health order “imposed no duty on Lowe’s to require its customers to wear face masks,” according to the judge’s ruling.
Birke was ordered to pay $94,704, in part to reimburse Lowe’s attorneys for their costs in the case.
While siding with the county court’s decision to toss out the lawsuit, the Court of Appeal on March 3 reversed the order that Birke pay the money.
Birke told the Observer he is considering appealing the Appeal Court ruling to the California Supreme Court, but realizes his chances of the court taking up the case are slim.
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