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Dixon v. CEC Entertainment

August 6, 2008

DAVID DIXON, JR., AND CHADRICK GARRIS, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
CEC ENTERTAINMENT, INC. D/B/A CHUCK E. CHEESE, DEFENDANT-RESPONDENT/ CROSS-APPELLANT/THIRD-PARTY PLAINTIFF,
v.
DAMION BOGLE, THIRD-PARTY DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4087-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 7, 2008

Before Judges Graves, Sabatino and Alvarez.

On Sunday, October 5, 2003, plaintiffs, David Dixon, Jr. (Dixon) and Chadrick Garris (Garris) were at a Chuck E. Cheese restaurant (the restaurant, or defendant's restaurant) at the Bergen Mall in Paramus celebrating a birthday party for one of their young daughters when they were assaulted by a restaurant employee. This personal injury action ensued. Following a trial, a jury returned a verdict in favor of each plaintiff and awarded damages of $10,000 to Dixon and $5,000 to Garris. Plaintiffs appeal from "the damages portion of [the] jury verdict," and they also appeal from the court's decision to exclude certain evidence from the jury.

In a cross-appeal, defendant CEC Entertainment, Inc., the operator of the restaurant, contends the trial court erred: (1) in denying its pretrial motion for summary judgment and its subsequent motion for a directed verdict at the close of plaintiff's case, (2) in awarding damages from stipulated medical expenses, and (3) in failing to apportion liability against its former employee, Damon Bogle (Bogle), the person who assaulted plaintiffs. After reviewing the record and the applicable law in light of the arguments presented, we affirm.

We summarize the following facts from the evidence adduced at trial. Dixon and Garris were good friends since childhood. On October 5, 2003, they were at defendant's restaurant for a birthday party, because Dixon's daughter turned two the next day. The restaurant catered to children between the ages of two and twelve. Defendant referred to its employees as "cast members." Company policy prohibited male employees from having visible body tattoos or wearing earrings. Defendant also had emergency procedures for dealing with violence on the restaurant's premises.

When third-party defendant Bogle applied for a kitchen position at the restaurant, he indicated on the employment application form that he was "old enough to work all kitchen equipment" (eighteen or older), he was a high school graduate, and he had never been convicted of a felony or misdemeanor. But he did not provide his social security number or fill in the information about experience and prior employment. At some point, he provided two different social security numbers which police later determined did not belong to him. Defendant hired Bogle as an hourly "food & beverage laborer" on January 3, 2000. He worked in the kitchen where he made and cut pizza, and made sandwiches. His job uniform consisted of a short-sleeve red shirt, blue pants, white sneakers, a belt, and hat.

Naida Carrasquillo (Carrasquillo) was one of defendant's assistant managers, and Bogle reported to her when they worked the same shifts. She described Bogle as "[p]olite, always on time, willing to work always" and "[a] very nice employee. Very nice person." To her knowledge, Bogle had never exhibited any violent behavior or threatened any customer or employee, and she never had a problem with him.

Steve Tacabo (Tacabo), a general manager at the restaurant, described Bogle as a "very good" employee. On February 23, 2003, however, he gave Bogle a written warning after verbally counseling him "numerous times" for being late.

In May or June 2003, Bogle got a tattoo on his right forearm with the words "FEAR ME" in upper case. Carrasquillo advised him to remove the tattoo or leave the job. Bogle told her that he would need time to get the money to remove it. When Carrasquillo told Tacabo about the situation, he suggested that Bogle cover the tattoo so it would not be visible.

According to Tacabo, he objected to the tattoo, ordered Bogle to remove it and, until then, to cover it. Despite three deadlines imposed by Tacabo, Bogle never removed the tattoo. Instead, he concealed it with "something like a tennis band." Tacabo did not fire him, however, because Bogle worked in the kitchen, had no contact with the customers, was an excellent employee, and hid the tattoo. Carrasquillo confirmed that Bogle always covered the tattoo when he worked with her. Bogle also usually wore a large diamond earring in each ear, but removed them at work.

Between 5:00 and 6:00 p.m. on Sunday, October 5, 2003, Dixon arrived at the restaurant to celebrate his daughter's second birthday. Garris also arrived with his fiancé and one-year-old daughter. Among the other attendees were Natalia Frasier (Natalia), the mother of Dixon's daughter; Melissa Dixon (Melissa), Dixon's mother; and Lacretia Dixon (Lacretia), Dixon's sister.

While waiting for the party to begin, plaintiffs went to the restroom after which they met Natalia and Lacretia in the hallway. Dixon noticed two employees walking down the hall, each carrying four or five empty pizza boxes. As a "joke," Dixon tapped the boxes carried by the man in front who later was identified as Bogle. According to Dixon, the boxes did not tip or fall, and he and Bogle "laughed it off" as did Lacretia and Natalia. Bogle then continued to walk past them down the hallway.

Within seconds, as plaintiffs started to walk towards the party area, they heard two people arguing. Both men turned around and walked back down the hall where Dixon saw Bogle and his sister, Lacretia, "having a shouting match." Garris heard Bogle tell Lacretia to "[s]uck my dick, bitch." Lacretia also testified that Bogle called her a bitch, but she thought she "might have said something to him first."

Garris told Lacretia to stop arguing and asked Bogle to leave them alone, saying: "Just go ahead, get away from me," and "We're not going to fight you in your place of work." According to Garris, Bogle responded by saying that he would not fight him, but would "fucking stab" him.

After an employee told her about the argument, the manager-in-training, Jamie Portillo (Portillo), went into the hall, told Bogle and the customers to calm down, and pulled Bogle into the kitchen. Plaintiffs and the two women proceeded to the showroom with Dixon in the lead. The birthday party still had not started. Neither plaintiff reported the incident.

Portillo and Tyesha Wilson (Wilson), who worked as a hostess at the restaurant, saw Bogle pick up a knife from a cutting table in the kitchen and walk towards the party area. The "bone knife" was about ten inches long with a black handle and thin silver blade of the type used to cut sandwiches. As Dixon was walking back to the party, he saw Bogle walking towards Garris with his hand behind his back. Dixon believed that Bogle left the kitchen within "[m]aybe one minute" of the incident in the hallway. Garris also believed that the sequence of events happened "pretty quickly."

Garris and Bogle began to argue. When Bogle raised his right hand from behind his back, Garris saw the knife and punched Bogle causing him to stumble. As Bogle recovered, Dixon tried to restrain him, but Bogle reached over Dixon's shoulder and stabbed him in the back left shoulder. At that point, Dixon "backed off of him" and walked over to his sister, Lacretia, who called the police on her cell phone.

After the stabbing, Garris tried to get the knife which had fallen onto the floor, but Bogle had already retrieved it. Garris testified he threw a chair at Bogle, who dropped the knife, and Bogle "picked up a chair and he threw it at [Garris's] face." The chair struck Garris in his right elbow and ribs. Bogle then ran into the kitchen.

When Dixon's mother walked over to the kitchen area to find the manager, she told Bogle that he had stabbed her son. Bogle then raised the pizza cutter up at her and said: "[D]o you want some, too"? Dixon's mother "realized he wasn't playing," so she walked outside. After getting his jacket, bag and boots, Bogle left the restaurant through the rear door.

Carrasquillo, who was on duty that night, testified she was taking care of customers in the game room when Portillo told her about the stabbing. Carrasquillo called the police and Tacabo. She asked Myeesha Nicole Meeks (Meeks), who worked as a cashier, to get the knife on the showroom floor so no children would get hurt. After Meeks recovered the knife, she took it to the kitchen, and put it into a garbage can. At that point, Wilson went into the kitchen and asked about the knife. After Meeks told her where it was, Wilson retrieved it, washed it off, and threw it into the garbage can next to the showroom in an effort to hide it. Wilson then left the restaurant.

As Garris held Dixon's shirt on the stab wound to stop the bleeding, a patrolman arrived at the restaurant, and plaintiffs were transported by ambulance to a hospital for x-rays. A doctor closed Dixon's incision with six or seven stitches. Dixon received a prescription for pain medicine, and he recalled the doctor telling him he was lucky that the knife did not puncture a vital organ. The x-rays of Garris's elbow and ribs showed no fractures. Both men left the hospital around 5:30 or 6:00 a.m. the next morning.

Dixon stayed in bed for a day with "very, very sharp pain," and he missed "one or two days from work." He returned to his landscaping job because he could not afford to stay home. About two weeks later, a doctor removed the stitches. Dixon continued to perform light-duty work for about a month until his wound healed.

Garris also stayed home for a day after the incident. Although he had extreme pain in his ribs and difficulty breathing, Garris returned to his plumbing job because, like Dixon, he needed the money.

Detective Devine, the detective assigned to the case, interviewed several of the restaurant's employees including Meeks, Wilson, Portillo, and Carrasquillo, and they were fully cooperative. He also spoke to Romero, a manager who was not present at the time of the incident, who provided a description of Bogle. Devine interviewed Dixon and Garris as well. The police never recovered the knife used in the attack.

On October 13, 2003, Devine arrested Bogle. After being advised of his Miranda*fn1 rights, Bogle gave his version of the incident in a statement which Devine read into the record. Bogle did not deny the stabbing, but explained that: (1) he put the "bread knife"--which he was using to make sandwiches--into his pocket before he took the pizza boxes to the garbage; (2) he went into the showroom to talk with plaintiffs so he would not lose his job; (3) he did not intend to kill or hurt anyone--he "just reacted," and (4) when asked why he stabbed the victim, Bogle replied: "To defend myself."

According to Devine, after Bogle was arrested, he either pled guilty or was convicted of assault--a disorderly persons offense. In addition, Detective Devine's testimony included the following:

Q: And you indicated you had a . . . criminal history search on Mr. [Bogle]. Correct?

A: Correct.

Q: What did that conclude?

A: No history.

Q: Never been arrested?

A: Correct.

Q: How about during the cour[se] of your investigation of Mr. [Bogle] with the Chuck E. Cheese managers and employees? Where you able to ascertain whether he had additional trouble there as an employee, violence, anything of that nature?

A: No, he didn't have a history.

Q: No history of what?

A: Of . . . violence or anything.

At trial, Dixon testified he still got sore at times in certain weather or when performing strenuous work. He felt the incident made him overprotective and defensive, and he testified he continued to have trouble dealing with the fact that he could have died on his daughter's birthday. He preferred to stay home after work and take care of his daughter. For a few months after the attack, Dixon had nightmares and difficulty sleeping. He saw a psychiatrist but did not return because he felt uncomfortable and did not want to take the medication the doctor suggested to help him sleep.

His father, Daniel Dixon, testified his son lived at home in the basement until about a month before the trial. He cleaned his son's wound, changed the bandages, and checked on him at night when Dixon woke up screaming. He confirmed that his son and Garris did not play basketball anymore or go out together with their daughters. Dixon's mother testified that her son still "breaks down" and cries when he talks about the stabbing or hears other people talking about it.

On May 20, 2005, at his attorney's request, Dixon saw Lee Hindin, M.D., a clinical psychiatrist. Dixon told Dr. Hindin the stabbing made him "[j]umpy, less likely to trust people" and more likely to protect himself at work. At trial, Dr. Hindin described Dixon's demeanor during the interview as spontaneous and genuine. He believed Dixon had suffered from acute posttraumatic stress disorder during the first three months after the stabbing, with symptoms such as "[r]ecurring intrusive thoughts of the events . . . heightened startle response," sleep difficulty, and persistent anxiety. While some of these symptoms had persisted, Dr. Hindin testified they had gotten less intense over time. According to Dr. Hindin, the stabbing is something that happened that's a part of him. What will make it come out at some point in the future, we can't tell. Certain circumstances might be more likely to bring back those memories and feelings. They might never come out again, and they might come out more frequently at certain times during certain stressful periods in his life in the future, and there's no real way to know.

Garris also testified he felt depressed after the incident and did not see Dixon as much. Like Dixon, he preferred to stay at home and take care of his daughter when he was not at school or work. He felt guilty that Dixon got hurt defending him. Garris said his pain persisted for approximately two weeks after the attack.

In points one and two of their appellate brief, plaintiffs contend the court erred in dismissing their claims for punitive damages. They argue there was sufficient evidence for the jury to find defendant's actions were wanton and willful based on its reckless disregard ...


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