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HOAGBURG v. HARRAH'S MARINA HOTEL CASINO

April 30, 1984

FRANK HOAGBURG and JANET HOAGBURG, his wife, Plaintiffs,
v.
HARRAH'S MARINA HOTEL CASINO, Defendant



The opinion of the court was delivered by: COHEN

 Plaintiffs, Frank Hoagburg and Janet Hoagburg, his wife, seek compensatory and punitive damages, as set forth in the ten counts of their complaint, for the following acts allegedly committed by the defendant, Harrah's Marine Hotel Casino (Harrah's), located in Atlantic City, New Jersey, against Mrs. Hoagburg: negligence, assault and battery, false arrest, defamation, breach of contract, outrageous conduct per se and unlawful violation of her rights. Mr. Hoagburg sues per quod for loss of his wife's services and consortium.

 Presently before the Court are the defendant's motions for partial summary judgment seeking dismissal of the defamation claim, asserted in Count 6 of the complaint, the claim for alleged violation of Mrs. Hoagburg's constitutional civil rights, *fn1" encompassed in Count 8, and all demands for punitive damages as set forth in Counts 3, 4, 5, 6, 8, 9 and 10. Harrah's also moves for partial summary judgment as to alleged claims by Mr. Hoagburg, for damages grounded in physical injury and "psychic trauma." Joint Final Pre-Trial Order, Plaintiffs' Factual Contentions (k), (n). A cross-motion by the plaintiffs seeks partial summary judgment with regard to that portion of their claims based on Harrah's contended violation of Mrs. Hoagburg's common law right of entry onto its premises. *fn2" This cross motion, and portions of Harrah's motions, appear to raise some issues of first impression. *fn3"

 On the basis of the following relevant facts and law, the Court shall grant the defendant's motion for partial summary judgment as to the defamation and constitutionally-based civil rights causes of action, as well as the claims alleging physical and psychological injuries suffered by Mr. Hoagburg. The defendant's motion, regarding the plaintiffs' demands for punitive damages, shall be denied, except with respect to those demands accruing from the defamation and constitutional causes of action, which shall be dismissed. Further, the plaintiffs' cross-motion for partial summary judgment shall be denied.

 On or about August 3, 1981, Mrs. Hoagburg, accompanied by her husband, was an invitee in Harrah's casino, playing blackjack. During the course thereof, she was approached by Harrah's security officers, accused of engaging in an activity known as "card counting," *fn4" and informed that she was no longer welcome to play blackjack at its casino. She was then escorted away from the blackjack tables by the security officers. The present action arose out of this incident.

 Included in Count 6 of the complaint is an allegation that the defendant slandered Mrs. Hoagburg's reputation and good character when it publicly accused her of card counting and announced that she was no longer welcome to play blackjack at its casino. In its motion for partial summary judgment, Harrah's argues that its statements were not defamatory, were privileged, and caused no damage to Mrs. Hoagburg whatsoever.

 Regardless of whether the statements were defamatory or privileged, there do not appear to be recoverable damages on this cause of action. Generally, in an action for slander, special damages must be alleged and proven in order for a plaintiff to prevail. Arturi v. Tiebie, 73 N.J. Super. 217, 222, 179 A.2d 539 (App. Div. 1962). Evidence of mental suffering or physical sickness, without more, is insufficient. Id. "There must be proof of a pecuniary loss or loss of some substantial or material advantage." Id. An exception to this general rule occurs only when the alleged defamatory statements are actionable as slander per se. Arturi, 773 N.J. Super. at 222. Defamatory statements are slanderous per se when they: "(1) charge commission of a crime, (2) impute certain loathsome diseases, (3) affect a person in his business, trade, profession or office, or (4) impute unchastity to a woman." Id.

 Card counting is not a crime. Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 169, 445 A.2d 370 (1982). Neither, of course, is it evidence of either some loathsome disease or unchastity. In the context of the instant action, there is no allegation that Mrs. Hoagburg's business reputation was affected by the card counting accusation. Hence, she has failed to allege defamatory statements that are actionable as slander per se. Special damages must, therefore, be pleaded.

 The complaint in this case avers that Harrah's allegedly defamatory remarks caused Mrs. Hoagburg to suffer "extreme mental anguish, humliation [sic], and acute mental and physical stress." Complaint, Count Six, para. 5. As previously noted, mere proof of such physical and mental discomfort is inadequate to establish special damages. Consequently, Harrah's is not subject to liability on the defamation cause of action, and summary judgment, as to this count, is appropriate and shall be granted.

 Harrah's also seeks summary judgment regarding the constitutionally-based claims, presented in Count 8. It contends that it is entitled to this relief due to the lack of a specific pleading of this claim, and the absence of any state action or other facts upon which such a claim could be grounded.

 Mrs. Hoagburg argues that she has adequately pleaded violation of her constitutional civil rights, including her First and Fourth Amendment rights, by encompassing the following language in the complaint:

 
The conduct of the defendant complained of herein constitutes careless, negligent, reckless, wilful, wanton and intentional violation of the rights of plaintiff, JANET HOAGBURG, violation of statutory duties and obligations, violation of the laws of the State of New Jersey, violation of regulation and authority of the New Jersey Casino Control Commission, and other governing entities. . . .

 Complaint, Count 8, para. 2. This language hardly identifies which, if any, constitutional claims are being asserted. Nonetheless, the rules governing pleading in federal court are very liberal. If the facts, as alleged by a plaintiff, are sufficient to state a claim showing he is entitled to any relief, he need not set forth the legal theory on which he relies. Fed. R. Civ. P. 8(a)(1). Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Sharpe v. Philadelphia Housing Authority, 693 F.2d 24, 27-28 (3d Cir. 1982). Hence, Mrs. Hoagburg's failure to specifically plead violation of her constitutional rights as a legal theory upon which she was relying will not bar her from pursuing such a cause of action if the facts, as averred in her complaint, would support such a claim.

 However, Harrah's asserts that the facts, as depicted in the complaint, fail to demonstrate the presence of any state action and, therefore, are insufficient to state a claim entitling Mrs. Hoagburg to relief for the alleged violation of her constitutional rights. The plaintiffs respond by urging that no state action need be proven, in a case such as this, in order to find a private defendant liable. The plaintiffs support this position with citations to three cases, Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980); and Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370 (1982).

 As a general principle, the federal constitutional guarantees of personal rights are enforceable as against federal or state governments only, and not as against private individuals. See, e.g., Tribe, American Constitutional Law ยง 18-1 at 1147-1149 (1978). The United States Supreme Court reaffirmed the vitality of this principle most recently in Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982), stating the following: "As a matter of substantive constitutional law the state action requirement reflects judicial recognition of the fact that 'most rights secured by the Constitution are protected only against infringement by government.' [citations omitted.]" Id. at 936.

 Marsh lends no support to the plaintiffs' contention that state action is not a prerequisite to an individual's recovery for violation of his constitutional rights. The plaintiff in Marsh had been convicted by a state court, of criminal trespass as a result of having distributed religious material in a company-owned town contrary to company rules. The Court held that the company town was identical in its overall feature to any municipally-owned town. Under such circumstances, it was determined that the state could not act to enforce a company rule that would unconstitutionally restrict the town residents' First Amendment rights any more than it could enforce a similar municipal ordinance. In reaching this conclusion, the Court reasoned that the company town was effectively public property and the company rule was effectively a municipal ordinance.

 The plaintiffs, in developing their argument for a broad reading of Marsh, point to the following language: "The more an owner, for his own advantage, opens up his property for use by the public general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Marsh, 326 U.S. at 506. From this language, the plaintiffs attempt to make the substantial leap to the expansive premise that private owners of any premises, open to the public, are liable for the compensatory claims of any guest whose constitutional rights may have been violated by the private owner's conduct.

 This far reaching interpretation of Marsh was expressly rejected in Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1971), wherein the Court stated the following:

 
The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of ...

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