On appeal from the Superior Court, Law Division, Camden County.
Long and Keefe. Keefe, J.A.D., temporarily assigned.
Plaintiff, Louis Pantalone, brought suit against defendant Bally's Park Place Casino Hotel (Bally's) seeking damages stemming from an alleged unlawful arrest and detention which took place on November 13, 1984. After discovery was taken in the matter, Bally's moved for summary judgment claiming immunity under N.J.S.A. 5:12-121(b). The trial judge, concluding that there were no genuine issues of fact, granted summary judgment to Bally's finding that there was probable cause for plaintiff's detention and that the detention was reasonable in all respects. Plaintiff appeals from that decision contending that factual issues exist in the record which preclude such findings without a plenary hearing.
The facts viewed in a light most favorable to the plaintiff follow. In late August or early September 1984, Detective John Wild of the State Police, Division of Gaming Enforcement (DGE) began a review of cases involving credit line frauds that had been initiated by other State Police detectives. Most, if not all, of these frauds occurred at Bally's, one on September 9, 1984. At that time, a man wearing glasses and a moustache requested a credit marker in the amount of $1500.00. He was given the chips, but suspicion arose concerning the authenticity of his signature. The credit marker was transported to the casino credit cage for signature verification. There the signature on the marker was compared with the signature on the original credit application filed by the credit patron. Bally's credit manager, Anthony Cekada, determined that the signature on the marker did not match the signature on the application. Another Bally employee in the credit cage, Bill Pangoras, also determined that the signatures did not match and asked the surveillance department to take a photograph of the suspected forger. Rather than alert their own security forces or DGE of the suspected fraud, Cekada went to the gaming table and asked the suspected forger to sign another marker in a fashion that would match the application. The suspected forger did not accede to Cekada's request. Cekada asked the
suspect to return to the credit cage with him. When the suspect could not produce an identification he was simply asked to return the $1500.00, which he did. All of this conduct, which one might conclude was suspicious, was recorded on videotape. However, the suspect was not detained nor was DGE advised as casino regulations apparently require.
After the suspect was permitted to leave, one of the Bally employees decided to advise DGE. Responding to the notification DGE Detective Willshire requested that photographs be made of the suspect from the videotape. He was given 18 photographs of the suspect and was also afforded an opportunity to view the tape. Thereafter, a bulletin was issued by DGE containing a photograph of the suspect and circulated to all casinos, including Bally's.
On November 13, 1984, plaintiff, accompanied by his brother-in-law, visited Bally's. They were unaware that a series of marker forgery incidents had taken place at Bally's in the preceding several months. At some point plaintiff came under the surveillance of one or more of Bally's approximately 180 cameras. The videotape taken of this surveillance will apparently show that plaintiff did not gamble at all. Rather, he is shown watching his brother-in-law gamble. Thus, plaintiff made no attempt to win money nor did he make any attempt to obtain credit from the casino. Defendant does not contend that plaintiff's conduct was suspicious.
Bally's surveillance officer, Michael Neuterman, first observed the plaintiff and concluded that the plaintiff bore some similarity to the photograph on the DGE bulletin. He conferred with surveillance officer Peter LiPuma who came to the same conclusion. Although Neuterman and LiPuma compared the polaroid picture on the DGE bulletin with the video screen, neither that bulletin nor the video tape was viewed by the trial court judge.
Because LiPuma knew that Cekada had dealt directly with the forger on September 9, 1984, it was decided to involve him
in the identification process. Lieutenant Pat Smith of Bally's security department approached Cekada at the credit podium and advised him that surveillance had someone that fit the initial description of the forger. Smith then directed Cekada's attention to plaintiff who was standing 30 to 40 feet away from them on the floor near the entrance to the "slot cage." When asked at depositions what he said to Smith, Cekada said: "I said that looks to be -- exact, I don't remember exactly what I said to him, but I made the notion that looks like the person." Smith, on the other hand, concluded from his conversation with Cekada that Cekada had made a "positive" identification of the plaintiff. DGE, in turn, was advised that a positive identification had been made and, based upon that advice, DGE officers directed that plaintiff be detained until their arrival.
Detectives Walker, Litino and Wilshire of DGE responded to the call. Detective Walker recalls that upon his arrival, Cekada "advised us the subject that was being detained was positively the suspect involved in forging the markers." However, when he was later asked to make a formal statement to that effect, Cekada flatly refused. Cekada denied at depositions that he ...