The opinion of the court was delivered by: COHEN
This action alleging three counts, false arrest, negligence and abuse of process arises from an argument over the use of a slot machine on October 24, 1982, at the Golden Nugget Hotel Casino (Golden Nugget) in Atlantic City, New Jersey, between plaintiff Concetta M. Barletta (Mrs. Barletta), a citizen of New York, and defendant Veronica Bartch (Bartch), a citizen of New Jersey. Both Mrs. Barletta and Bartch were patrons of the casino at the aforesaid time and place.
The Golden Nugget has also been joined as a defendant. As a result of the argument, Mrs. Barletta was detained by Casino security guards and subsequently arrested by Atlantic City Police. She seeks a monetary award for mental, emotional and physical pain and distress. Additionally, she alleges that the defendants' acts were malicious and intentional, thereby justifying a recovery of punitive damages. Her husband sues per quod.
The Golden Nugget now moves, pursuant to Fed. R. Civ. P. 56, for Summary Judgment claiming, that as to it, plaintiff failed to set forth a claim upon which relief can be granted.
Plaintiffs urge this Court to deny defendant's motion, maintaining that genuine issues of material fact have been raised and, therefore, the grant of summary judgment is not appropriate. Plaintiffs contend that whether or not the Golden Nugget security guard accompanying Mrs. Barletta to another part of the Casino while he summoned Atlantic City Police constituted false arrest is a matter to be determined by a jury.
Finally, plaintiffs assert that as a paying guest of the Casino hotel, the Golden Nugget owed a duty to Mrs. Barletta, "particularly under circumstances where a serious question exists as to the substantiality of criminal allegations against that guest by an invitee [Bartch] on the premises, especially where [that] invitee solicits and obtains the assistance of hotel employees to effect the arrest of the paying guest." (Plaintiff's brief, at 8-9). This, too, is presented to demonstrate a genuine issue of material fact and a basis for denying summary judgment.
The jurisdiction of this Court is based on diversity of citizenship arising under 28 U.S.C.A. § 1332. For the reasons set forth in the Opinion below, defendant's motion shall be denied as to the false arrest count and granted as to the abuse of process and negligence claims.
The primary purpose of a motion for summary judgment is "to avoid a useless trial." Dworman v. Mayor and Board of Aldermen of Morristown, 370 F. Supp. 1056, 1063-64 (D. N.J. 1974). To earn summary decision, the moving party must merit judgment as a matter of law upon genuinely indisputable material facts. Fed. R. Civ. P. 56(c). Only a clear showing of authentic non-dispute satisfies the Rule 56(c) standard demanding the absence of triable fact issues. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978). The movant bears this burden, Manetas v. International Petroleum Carriers, Inc., 541 F.2d 408, 413 (3d Cir. 1976), and the non-moving party receives the benefits of all reasonable doubts and inferences drawn from underlying facts. Goodman v. Mead Johnson & Co., 534 F.2d 566, 574 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).
In the case at bar, it is undisputed that there was an altercation between the plaintiff Mrs. Barletta and defendant Mrs. Bartch. It is also undisputed that Owen Brown, a Golden Nugget security officer, was informed of the argument by a slot attendant and came to the scene. In his affidavit, submitted in support of defendant's motion for summary judgment, Officer Brown stated that when he arrived at the slot machines, he saw Mrs. Barletta push defendant Mrs. Bartch away from a slot machine so that she could continue playing. Bartch complained to Officer Brown and asked what he was going to do about the incident. Brown then explained to her that patrons of the Casino were permitted to play as many machines as they wanted as long as there was money in the trays at the bottom of each machine and, therefore, he could take no action against Mrs. Barletta. Mrs. Bartch insisted that some action be taken and informed Officer Brown that she wanted to file criminal charges. To do so, Brown informed her that the Atlantic City Police would have to be called. Bartch persisted in her complaint. Officer Brown then called Sergeant Biosca, also an officer in the Golden Nugget security department, to assist him. The two women were taken to the security office, and the Atlantic City Police Department was called.
In order to support a claim for false arrest, the plaintiffs must allege two elements: First, that there was an arrest, and second, that the arrest was without proper legal authority, which has been interpreted to mean without legal justification.
Mrs. Barletta submits that she was forced to go to the security office, that she did not voluntarily, and hence, the action constituted an arrest by the casino security guards. She further asserts that Officer Brown knew there was no legal justification for the arrest and, therefore, it was a false arrest.
Defendant, Golden Nugget, denies that an arrest was made by its security officer. It points to the fact that Mrs. Barletta has made no claim of being physically assaulted by any casino security guard, that she accompanied the security officers on her own and the Golden Nugget filed no charges or instituted any civil proceedings against her. Finally, the defendant contends that the detainment of Mrs. Barletta was authorized by N.J.A.C. tit. 19, § 45-1.11 which provides for "the detainment for probable cause of persons that may be involved in illegal acts for the purposes of notifying law enforcement or commission authorities."
Initially, the Court shall address the defendant's contention that no arrest was made. A taking into custody need not be done violently to constitute an arrest, nor is the fact that Mrs. Barletta accompanied security officers under her own power dispositive on the issue of whether there was an arrest. Rather, the inquiry goes to whether there was any unlawful restraint upon a person's freedom of movement, Earl v. Winne, 14 N.J. 119, 128, 101 A.2d 535 (1953). Further, the assertion of legal authority to take a person into custody, even where such authority does not in fact exist, may be sufficient to create a reasonable apprehension that a person is under restraint. Bartolo v. Boardwalk Regency Hotel Casino, Inc., 185 N.J. Super. 534, 536, 449 A.2d 1339 (Law Div. 1982), citing Hebrew v. Pulis, 73 N.J.L. 621, 64 A. 121 (E & A 1906).
In the instant case, Mrs. Barletta contends that she was ordered from the casino floor by officers Brown and Biosca and that she did not feel free to refuse. This confrontation with two security officers ordering her to accompany them are circumstances which might give rise to "a reasonable apprehension of force." Earl, 14 N.J. at 127. Consequently, the defendant's position, that the detainment of the plaintiff did not constitute an ...