JEAN SMITH AND MARIE SMITH v. HARRAH CASINO RESORT OF ATLANTIC CITY

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Superior Court of New Jersey, Appellate Division.

JEAN M. SMITH AND MARIE C. SMITH, Plaintiffs–Appellants, v. HARRAH'S CASINO RESORT OF ATLANTIC CITY, Defendant–Respondent.

DOCKET NO. A–0855–12T2

-- December 13, 2013

Before Judges Yannotti, Ashrafi and Leone. Jude Nelson argued the cause for appellants (The Law Firm of Osei & Nelson, L.L.C., attorneys;  Mr. Nelson, on the brief). Christopher C. Mauro argued the cause for respondent (Camacho Mauro Mulholland, L.L.P., attorneys;  Mr. Mauro, on the brief).

Plaintiffs Jean Smith and his wife, Marie Smith, appeal from summary judgment dismissing their complaint against defendant Harrah's Casino Resort of Atlantic City. They allege that Harrah's is liable to them for injuries caused to Jean Smith when Harrah's security officers allegedly assaulted him.   We reverse the summary judgment in part and remand for trial on the potential vicarious liability of Harrah's for the alleged intentional tort of assault by the security officers.

Our standard of review from a summary judgment is plenary.   Because we review the same documentary record as the trial court, we determine without deference to the trial court's ruling whether disputed issues of fact exist for determination by a jury and, if not, whether the trial court correctly applied the applicable law.  W.J.A. v. D.A., 210 N.J. 229, 237–38 (2012);  Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010).   We must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiffs' amended complaint contains two counts, one seeking compensation for Jean Smith's injuries and the second for Marie Smith's derivative per quod claim.   See Hauck v. Danclar, 262 N.J.Super. 225, 227 (Law Div.1993) (nature of per quod claim for loss of consortium).   Plaintiffs sought recovery from Harrah's under various theories:  negligent supervision and training of the casino's security personnel, vicarious liability for the use of excessive force, negligent infliction of emotional distress, and false imprisonment.   Viewed most favorably to plaintiffs, see R. 4:46–2(c);  Brill, supra, 142 N.J. at 540, the evidence presented in the summary judgment record revealed the following facts.

Jean Smith was a taxi driver in Atlantic City. On January 10, 2011, he pulled into the valet line at Harrah's to pick up a fare.   The valet supervisor believed that Smith had cut into the line and directed him to leave.   Smith argued that he had been in line and refused to leave.   Harrah's security officers arrived on the scene, and an altercation ensued.   Security officer Taron Lewis allegedly shoved Smith to the ground.   Lewis and other officers subdued Smith, handcuffed him, and briefly placed him in a holding cell before ejecting him from Harrah's premises.   A surveillance recording of the incident was preserved and shows the altercation.   Smith alleged he was physically and emotionally injured as a result of an assault and battery.

Discovery in the litigation was initially scheduled to end on May 14, 2012.   The court had already granted one extension of the discovery end date at the time that Harrah's moved to reopen discovery on August 16, 2012, so it could submit the report of its medical expert.   On September 14, 2012, the court granted Harrah's motion over plaintiffs' opposition to the extension of discovery, and it set September 30, 2012, as the new discovery end date.   On September 27, 2012, after Harrah's moved for summary judgment, plaintiffs moved to extend discovery once more so they could obtain a psychological evaluation of Jean Smith.   The court heard oral argument and denied plaintiffs' motion to extend discovery once again.   It granted defendant's motion for summary judgment.   It found that plaintiffs did not have sufficient evidence to prove Harrah's negligence, and that Harrah's could not be held vicariously liable for Lewis's conduct because an assault was not within the scope of his employment as a security officer.

Generally, summary judgment is inappropriate when discovery is incomplete if “critical facts are peculiarly within the moving party's knowledge.”   Velantzas v. Colgate–Palmolive Co., 109 N.J. 189, 193 (1988) (quoting Martin v. Educ. Testing Serv., Inc., 179 N.J.Super. 317, 326 (Ch. Div.1981)) (internal quotation marks omitted).   However, summary judgment may be granted if further discovery will not alter the result.  Minoia v. Kushner, 365 N.J.Super. 304, 307 (App.Div.), certif. denied, 180 N.J. 354 (2004).   Also, if the discovery period has already closed and the standard for re-opening discovery is not shown, summary judgment may be granted even if the opposing party claims that additional discovery will provide evidence to demonstrate a disputed issue of fact.  Schettino v. Roizman Dev., 310 N.J.Super. 159, 165 (App.Div.1998), aff'd, 158 N.J. 476 (1999).

Plaintiffs argue that they were not given an opportunity to produce a psychologist's report, that Harrah's did not cooperate in producing Lewis for a deposition, and that Harrah's did not provide documents that plaintiffs had demanded in discovery.   Harrah's, however, was not responsible for plaintiffs' failure to obtain a psychologist's report before the end of the discovery period.   Furthermore, Harrah's had discharged Lewis from his position as a result of the incident, and he was no longer within Harrah's power to produce for deposition.   In addition, plaintiffs received the allegedly delinquent discovery documents along with defendant's summary judgment motion.   They have not shown how defendant's failure to produce the documents earlier prejudiced their ability to oppose summary judgment.

Significantly in the circumstances of this case, plaintiffs will not be heard to argue discovery was incomplete because they opposed the second extension of the discovery period and also failed to take advantage of the extensions that were granted to complete the discovery they needed.   We find no abuse of discretion in the trial court's denial of plaintiff's motion to re-open discovery.   See Rivers v. LSC P'ship, 378 N.J.Super. 68, 80, 82–83 (App.Div.), certif. denied, 185 N.J. 296 (2005).

With respect to summary judgment, we agree with the trial court that plaintiffs failed to demonstrate a genuine issue of fact that would support their affirmative claims for negligent supervision and negligent training of the security officers.

A common law claim of negligence has four constituent elements:  (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages.  Brunson v. Affinity Fed. Cred. Union, 199 N.J. 381, 400 (2009).   The plaintiff bears the burden of proving each of these elements.  Ibid.

Where an employer is charged with negligence in the hiring of an employee who caused injury, the plaintiff must prove:  (1) the employer “knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons,” and (2) the employer's negligence in hiring the employee resulted in the dangerous attribute proximately causing plaintiff's injury.  Di Cosala v. Kay, 91 N.J. 159, 173–74 (1982).   These elements “follow[ ] from tort principles of negligence and foreseeability as well as from firmly established principles of agency and vicarious liability.”  Id. at 170.   They are encapsulated in Restatement (Second) of Agency § 213 (1958), and Restatement (Third) of Agency § 7.05(1) (2006), which states:

A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent's conduct if the harm was caused by the principal's negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.

Comment d to § 213 of the Restatement (Second) of Agency states that an employer may be liable for negligent hiring or negligent supervision if the employer knows or has reason to know that an employee, “because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him.”   An employee's dangerous characteristic may arise from his inexperience, incompetence, or “vicious disposition,” but the mere existence of a dangerous quality does not create liability.  Ibid.

Several jurisdictions have held that a claim of negligent supervision requires proof of the same elements recited by our Supreme Court in Di Cosala with respect to a claim of negligent hiring.   See Keller v. Koca, 111 P.3d 445, 446 (Colo.2005);  Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C.1985);  M.V. v. Gulf Ridge Council Boy Scouts, Inc., 529 So.2d 1248, 1248 (Fla.Dist.Ct.App.1988);  Alexander v. A. Atlanta Autosave, Inc., 611 S.E.2d 754, 758–59 (Ga.Ct.App.2005);  Gray v. Schenectady City Sch. Dist., 927 N.Y.S.2d 442, 445 (N.Y.App.Div.2011).

Accordingly, we conclude that plaintiffs' claim of negligent supervision required evidence to prove the following elements:  (1) Harrah's knew or had reason to know of the particular unfitness, incompetence, or dangerous attributes of Lewis or other security officers who were involved in the incident, (2) Harrah's could reasonably have foreseen that such qualities created a risk of harm to other persons, and (3) through Harrah's negligence in supervising Lewis and the other officers, their dangerous attributes proximately caused plaintiffs' injuries.

The summary judgment record is devoid of any evidence suggesting that Harrah's knew or should have known of dangerous attributes of Lewis or any other security officer.   The record also does not contain any evidence suggesting Harrah's failed to supervise Lewis or the other security officers, and that through its negligent supervision, Jean Smith was assaulted and injured.

With respect to plaintiffs' claim of negligent training of security officers, the summary judgment record shows that Harrah's provided each newly-hired officer with both a company manual and a security-specific manual detailing the officer's duties.   Harrah's trained new hires by requiring them to shadow an experienced security officer for a minimum of five days.   As part of the training, Harrah's instructed its security officers to use force only “if there is reason to believe such force is immediately necessary,” and to use the minimum force required.   Periodically, Harrah's demonstrated the proper use of force at mandatory “control and restraint” classes.   While we do not determine one way or the other whether the training of Harrah's security personnel was adequate as a matter of law, plaintiffs have not refuted the evidence of training that defendant produced in support of its motion for summary judgment.

Plaintiffs point to a statement by one security officer that he did not know how Harrah's currently conducted its training and a statement by another security officer that he understood why a supervising security officer said the officers involved in the incident needed a refresher course on control and restraint of unruly persons.1  Both security officers also stated that they received the training described here.   Plaintiffs' evidence is not sufficient to establish a genuine issue of disputed fact that Harrah's was negligent in providing training to its security officers.   We conclude the trial court did not err in dismissing plaintiffs' claim of negligent training as a separate cause of action.

We next address plaintiffs' claims of negligent infliction of emotional distress, false imprisonment, vicarious liability for the intentional tort of assault and battery, and loss of consortium.2

Negligent infliction of emotional distress requires proof of the traditional elements of negligence, and also evidence that it was “reasonably foreseeable that the tortious conduct [would] cause genuine and substantial emotional distress or mental harm to average persons.”  Decker v. Princeton Packet, Inc., 116 N.J. 418, 429–30 (1989).  “[T]he emotional distress suffered by plaintiff must be so severe that no reasonable [person] could be expected to endure it.”  Ingraham v. Ortho–McNeil Pharm., 422 N.J.Super. 12, 20 (App.Div.2011) (quoting Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366–67 (1988)), certif. denied, 209 N.J. 100 (2012).   Here, plaintiffs did not present any evidence showing Jean Smith suffered severe emotional distress.   The trial court did not err in dismissing the claim of negligent infliction of emotional distress.

The claim of false imprisonment requires proof that defendant constrained the plaintiff against his will without legal justification.  Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591 (2009).   Harrah's security personnel detained Jean Smith for a short time after he refused to leave the premises and became involved in an altercation with security officers.   Harrah's had sufficient legal justification for holding Smith.   Therefore, we affirm the trial court's dismissal of the false imprisonment claim by summary judgment.

Employers are vicariously liable for torts committed by their employees within the scope of employment.  Davis v. Devereux Found., 209 N.J. 269, 288 (2012) (citing Restatement (Second) of Agency § 219 3 ).  An employee's tortious conduct is considered within the scope of employment when:

(a) it is of the kind he is employed to perform;  (b) it occurs substantially within the authorized time and space limits;  (c) it is actuated, at least in part, by a purpose to serve the master;  and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

[Id. at 303 (quoting Restatement (Second) of Agency § 228(1)).]

Intentional torts, including assault and battery, are typically not within the scope of employment unless “the employee's conduct — however aggressive and misguided — originated in his or her effort to fulfill an assigned task․”  Ibid.

Here, Lewis allegedly assaulted Smith in an attempt to remove him from the premises, the kind of task he was employed to perform.   Lewis did this during his shift while on Harrah's grounds.   Lewis did not have any other reason for his actions than to fulfill his responsibility as a security officer.   Furthermore, there is a genuine issue of disputed fact as to whether the force Lewis used was “unexpectable.”

Harrah's trained its security personnel not to use excessive force, but that fact does not preclude its vicarious liability.   See id. at 304–05.   A security officer's shoving or otherwise assaulting a person who did not comply with the officer's command was not so far outside the scope of the officer's duties and responsibilities that it would necessarily be deemed unexpectable by the employer and outside the scope of the officer's employment as a matter of law.

Because we conclude that the summary judgment record did not eliminate an issue of fact as to the expectability of the force used by Lewis, we reverse the trial court's determination as a matter of law that Lewis acted outside the scope of his employment.   Our conclusions do not preclude Harrah's from presenting evidence at trial of the training and supervision it conducted as part of its factual defense that Lewis's conduct was not expectable and therefore outside the scope of his employment.

Finally, the loss of consortium claim of Marie Smith seeks damages for her “loss of a spouse's services, society, companionship and comfort.”   See Hauck, supra, 262 N.J.Super. at 227.   It must also be restored to the extent injuries to Jean Smith were caused by the alleged assault and battery.

Affirmed in part, reversed and remanded in part for trial on plaintiffs' claim of Harrah's vicarious liability for assault and battery.   We do not retain jurisdiction.

FOOTNOTES

1.  FN1. Plaintiffs also rely on a statement of defense counsel, but defense counsel is not a witness and his statements have no evidentiary value.

2.  FN2. Plaintiffs are reminded that we generally deem to be waived any arguments that were not briefed on the appeal.   See Gormley v. Wood–El, 422 N.J.Super. 426, 437 n.3 (App.Div.2011).   We address all of plaintiffs' theories, although not all were explicitly discussed in plaintiffs' brief, because we deem plaintiffs' arguments to include the claim of respondeat superior liability for Lewis's conduct.   Defendant Harrah's does not dispute that all of plaintiffs' claims are before us on appeal.

3.  FN3. Restatement § 219 provides:(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:(a) the master intended the conduct or the consequences, or(b) the master was negligent or reckless, or(c) the conduct violated a non-delegable duty of the master, or(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

PER CURIAM

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