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Kamouh v. Bally's Park Place

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 7, 2009

AIDA KAMOUH, PLAINTIFF-APPELLANT,
v.
BALLY'S PARK PLACE, BALLY'S ATLANTIC CITY AND HARRAH'S ENTERTAINMENT, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-17302-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 11, 2009

Before Judges Parrillo and Lihotz.

Plaintiff Aida Kamouh appeals from the summary judgment dismissal of her personal injury negligence complaint against defendants Bally's Park Place and Bally's Atlantic City (collectively Bally's). We affirm.

The essential facts are not in dispute, and viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), they are as follows. In the early morning hours of New Year's Day, January 1, 2006, seventy-four year-old plaintiff was a patron at Bally's casino in Atlantic City, playing a slot machine when suddenly and unexpectedly, a woman reached from behind and snatched plaintiff's purse. When plaintiff tried to resist, she was dragged on the ground for some twenty feet from her slot stool, and suffered a fractured tailbone.

Plaintiff was attended by a nurse at Bally's. Having then been immediately contacted, the casino's security department checked its videotape surveillance to determine if there was any camera covering the scene of the assault, but no coverage was found of the incident. Prior to this event, plaintiff, who had been patronizing Bally's for twenty-five years, never had reason to feel unsafe at the casino, having never before experienced any incident involving physical assault or threats.

Plaintiff sued Bally's alleging negligence in failing to provide proper security to insure her safety and spoliation of evidence in failing to preserve any of the security camera videotape from the morning of the incident. Following discovery, in which plaintiff offered no expert proof as to security staffing, the parties cross-moved for summary judgment. Judge Perskie granted Bally's motion and dismissed plaintiff's complaint. Having defined defendant's duty as one to provide a reasonably safe environment and adequate security for the purposes of plaintiff's presence there, the judge found no evidence of breach. He reasoned:

The premise of the plaintiff's argument is (a) that the basic security was not adequate because there was a big crowd and a big crowd of invited high-rollers, and (b) the defendant failed to increase that security.... [O]n the record before me, there's no evidence to suggest that there was anything other than what I'm going to call standard or normal security. And the plaintiff suggests that the jury should be permitted to evaluate, without expert evidence, first, that the basic security was inadequate, and second, that the failure to increase the security was also a breach of the duty. Neither argument is sustainable on this record without expert evidence. The jury is in no position to determine what the adequacy of the basic security was, particularly where, as here, while it is possible to construct a factual scenario in which you could design a security system that would prevent this type of incident as opposed to be able to respond to it, it is somewhat imaginative to do so.... But the fundamental question is whether the security that was provided that night, unaugmented from its norm, either in terms of numbers or locations of people, constituted a breach of the duty. And the second question, obviously, is whether that breach was a proximate cause of the event. In either instance, without expert evidence, what that requires the jury to conclude is that the mere fact of the happening of the assault constitutes evidence of inadequacy of security. That's not the law. And without a standard that would define for the jury what the defendant was supposed to do from the perspective of the number and location of security personnel, either augmented or otherwise, the jury would be left to speculate that the mere fact of the happening of the incident itself constitutes a showing that the security was inadequate. That's all there is. That isn't enough.

The judge also rejected plaintiff's spoliation claim, observing that surveillance cameras do not film everything that's happening in every area of the floor at all times. The cameras move around. The cameras are positioned so that at the instruction of an operator, they can film anything they want instantaneously, but if a camera doesn't happen to be aimed at a particular slot machine, it has to be aimed at it when somebody tells it to.

Having taken notice of a fact of which there was no real dispute, the judge went on to conclude:

That's not spoliation. Spoliation is the intentional destruction of relevant evidence or the negligent failure to maintain relevant evidence, and you don't have either of those in this record. What you have in this record is that they never had the video.

On appeal, plaintiff raises the following issues:

I. THE DANGER OF BEING MUGGED ON NEW YEAR'S EVE IN ATLANTIC CITY ON [SIC] AT A BUSY CASINO IS A DANGER THAT IS EASILY UNDERSTOOD AND UNFORTUNATELY COMMON, FOR WHICH EXPERT TESTIMONY IS NOT REQUIRED BY A JURY.

II. BALLY'S WITNESS ACKNOWLEDGED THAT IT DID NOTHING OUT OF THE ORDINARY REGARDING SECURITY ON NEW YEAR'S EVE, WHILE PLAINTIFF ALLEGED THAT THERE SIMPLY WAS NOT ENOUGH SECURITY ON NEW YEAR'S EVE. THUS, THERE IS A VALID ISSUE OF FACT AS TO WHETHER BALLY'S PROVIDED ENOUGH SECURITY ON NEW YEAR'S EVE.

III. BALLY'S HAD THE DUTY TO KEEP THE VIDEOTAPE, EVEN IF IT ALLEGEDLY DID NOT SHOW THE MUGGING, SIMPLY TO PROVE ITS OWN ASSERTIONS THAT THE MUGGING WAS NOT CAUGHT ON TAPE. IT ALSO SHOULD HAVE KEPT THE VIDEOTAPE TO SHOW THE ADEQUATENESS OF THE SECURITY ON THE CASINO FLOOR AS TO THE NIGHT OF THE INCIDENT.

IV. SUMMARY JUDGMENT IS NOT WARRANTED WHEN TAKING ALL EVIDENCE AND MATERIALS PRESENTED, WHEN VIEWED IN THE LIGHT MOST FAVORABLE TO NON-MOVING PARTY, AND THE LOWER COURT'S DECISION SHOULD BE REVERSED.

We find these issues to be without merit, R. 2:11- 3(e)(1)(E), and accordingly affirm for the reasons stated by Judge Perskie in his oral opinion of May 23, 2008. We offer only the following brief comments.

The duty of a premises proprietor to protect his invitees from the criminal acts of third persons has generally been described as one of "reasonable care... to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982); Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964). On this score, "[f]oreseeability of the risk that criminal acts of others would cause harm is the crucial factor." Butler, supra, 89 N.J. at 276; McGlynn v. Newark Parking Authority, 86 N.J. 551, 560 (1981).

Measured by this standard, we discern no basis in the record for imposition of liability on defendants. The assault here was sudden, unexpected and apparently random in nature. Other than her own personal lay opinion, plaintiff offers no proof that Bally's security staffing level on the morning of the incident violated either industry norms or regulatory requirements; that additional crimes should have been reasonably anticipated and additional security guards deployed; or that the actions of any of Bally's security personnel were unreasonable or could have prevented the assault from happening. Even assuming something about the character of the business or that the occasion in question would suggest a greater likelihood of criminal conduct on the part of third persons, plaintiff nevertheless fails to demonstrate that existing security protections already in place and mandated by statute and regulations, N.J.S.A. 5:12-98; N.J.A.C. 19:45-1.10, were not reasonable.

Plaintiff herself acknowledges that nothing from her past longstanding experience with Bally's made her feel unsafe on the casino floor. Rather, the sole basis for her complaint is her layperson's sense that Bally's duty of due care has been breached by not beefing up security staffing in the early morning hours of New Year's day. While there is no general rule or policy requiring expert testimony as to the standard of care, Butler, supra, 89 N.J. at 283; cf. Berger v. Shapiro, 30 N.J. 89, 101 (1959), lay opinion and naked conclusions simply do not suffice. This is especially so here, where the matter of casino security staffing is subject to heavy and complex State regulation, see N.J.S.A. 5:12-98; N.J.A.C. 19:45-1.10, that without expert assistance, jurors of common judgment and experience simply cannot form a valid judgment as to whether the conduct of defendants was reasonable. Butler, supra, 89 N.J. at 283; 2 Harper & James, Law of Torts (1956), § 17.1 at 966.

Affirmed.

20090407

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