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ABRAHAM v. RASO

March 20, 1998

VANESSA ABRAHAM, in her own right and as Administratrix of the Estate of Robert Abraham, deceased, and on behalf of Robert Christopher Abraham, Jr., Labreea Von Abraham and Taquan Carey, the minor children of decedent, Plaintiff,
v.
KIMBERLY RASO, et al., Defendants. KIMBERLY RASO and JORIS HOOGENDOORN, Plaintiffs, v. THE ESTATE OF ROBERT C. ABRAHAM, et al., Defendants.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Presently before this Court is defendant Macy's East, Inc's ("Macy's") motion for summary judgment as to Kimberly Raso's and her husband Joris Hoogendoorn's (collectively, "Raso") negligence claims against Macy's. *fn1" This Court has jurisdiction pursuant to 28 U.S.C. ยง 1367. For the reasons stated below, this Court will grant Macy's motion and dismiss Raso's complaint against Macy's.

 I. BACKGROUND

 The facts in this case were set forth in detail in this Court's March 5, 1998 Opinion in the above captioned consolidated actions. Only a summary is required here.

 On October 15, 1994, Macy's security officers Shawn Waters and Mary Jane Thomulka observed Robert Abraham and Dennis Redding stealing clothing from the men's department in Macy's department store in the Cherry Hill Center ("the Mall") in Cherry Hill, New Jersey. Both officers observed Abraham and Redding acting strangely and believed them to be under the influence of alcohol or some other substance. Waters followed the two shoplifters through the store and to the Macy's Mall exit. There, he radioed to Thomulka and asked her to call Mall security because he was not comfortable attempting to apprehend Abraham and Redding himself, and because did not want to involve Thomulka, a fifty-year-old woman, in a physical confrontation with Abraham and Redding.

 Thomulka contacted Mall security. Mall security radioed for help from the off-duty Township of Cherry Hill police officers working as Mall security guards. One of the officers responding was Kimberly Raso. In the course of resisting arrest in the Mall parking lot, Abraham drove his car at Raso at an accelerating speed. Raso jumped to avoid being hit by the car. After being hit or nearly hit by the car, Raso struck the ground or another car. She alleges that she sustained leg injuries. Raso shot and killed Abraham in the course of these events. She alleges that as a result of this incident she has experienced severe psychological problems. These problems have rendered her unable to work and have caused her suffering. She seeks to hold Macy's liable based on negligence for her physical and psychological injuries.

 II. SUMMARY JUDGMENT STANDARD

 Under Federal Rule of Civil Procedure 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)).

 In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons. Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring). If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890-91 (3d Cir. 1992).

 III. DISCUSSION

 Raso contends that Macy's breached the duty of care it owed her when it failed to provide adequate security personnel who would have been able to apprehend Abraham and Redding. Macy's argues that it did not owe a duty of care to Raso which extended to preventing shoplifters from leaving Macy's premises. Moreover, Macy's contends that its security officers behaved reasonably and properly. Finally, Macy's contends that any breach on Macy's part was neither an actual nor proximate cause of Raso's injuries.

 "The question of whether a duty exists is a question of law to be decided by the judge alone in the context of the circumstances of each case." Burroughs v. City of Atlantic City, 234 N.J. Super. 208, 560 A.2d 725, 732 (N.J. Super. Ct. App. Div.), cert. denied, 117 N.J. 647, 569 A.2d 1345 (1989); see Clohesy v. Food Circus ...


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