May 12, 2009
JENNIFER BASILE AND NICOLE KALLAUR, PLAINTIFFS-APPELLANTS,
BORGATA HOTEL CASINO & SPA, INC., AND SECURITY OFFICER MUHAMMAD KAMRAN, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5548-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Fuentes and Chambers.
Plaintiffs Jennifer Basile and Nicole Kallaur appeal from the order of the Law Division dismissing their cause of action against defendant Borgata Hotel Casino & Spa ("Borgata"). In granting defendant's motion for summary judgment, the court found no grounds to hold the Borgata vicariously liable for the improper acts of Security Officer Muhammad Kamran. We affirm.
Because the trial court dismissed plaintiffs' action as a matter of law, we will describe the following facts from the point of view most favorable to plaintiffs.
The incident that gave rise to this litigation occurred on September 21, 2003. On that date, plaintiffs Basile and Kallaur went to Club Mixx, a nightclub located in the Borgata casino, and met up with two other friends, identified here as Margie and Leona. According to Basile, both Margie and Leona appeared intoxicated. They had difficulty speaking and, at one point, Margie actually fell to the ground. By contrast, Basile and Kallaur were both sober.
Due to the lateness of the hour and Margie and Leona's intoxication, the four women decided to stay at the Borgata for the night. Toward that end, Basile motioned over a hotel security guard to ask him to escort them to the front desk. When the security guard responded, Basile said: "obviously you can see that my two friends are intoxicated. They need to get a room. Can you escort us to the front desk?"
The security guard, subsequently identified as Soto, responded by saying "let me see what I can do." He then motioned over to a nearby man who was wearing civilian clothes.
Soto introduced this man as "DeSoto," a friend and an undercover security officer for the Borgata. According to an investigation report prepared by the Bortaga, the man identified as "DeSoto" was actually an off-duty security guard named Hoskins. Soto told the women that Hoskins could help them get a room. Although she was skeptical that Hoskins was in fact an undercover security guard, Basile accepted the offer of assistance.
Soto and Hoskins walked through the casino floor as did the women. The women stopped to go to the bathroom. At this point, Basile indicated that "a third [security] officer, a woman," approached the group and reprimanded Soto for leaving his assigned post. A report prepared by the Borgata identified this individual as security supervisor Gloria Martinez. According to Basile, Martinez confirmed to her that Hoskins was an undercover security officer for the Borgata.
As soon as Martinez left, Hoskins said: "I can comp you guys for a room [sic] for the night." Plaintiffs accepted the offer. Hoskins used the customer elevators to escort the four women to a room located on the forty-third floor of the hotel. He obtained entry to the room with an orange and white hotel security card he procured from another security guard.
Hoskins walked the women inside this penthouse room, telling them it was "comped for the night." He then left without further incident. Soon thereafter, the doorbell of the room rang; a third security guard "let himself in" the room, and told the women that "everything is cleared with the front desk. This is your room for the night."
Basile and Kallaur decided to use the Jacuzzi in the bathroom, while Margie and Leona went elsewhere within the spacious room. Approximately ten to fifteen minutes thereafter, the doorbell rang again; Kallaur responded, while Basile sat in a lounge chair in the bathroom. When Kallaur looked through the security peephole, she did not see anyone standing by the door. At this point, a security guard, subsequently identified as Muhammad Kamran, entered the bathroom where Basile was seated. Kamran attempted to kiss Basile against her will, and tried to forcefully remove the towel she was wearing. Kallaur returned to the bathroom and demanded that Kamran leave immediately. He refused, screaming that he wanted to see "boobs." Kamran eventually left the room without further incident.
Plaintiffs gathered their belongings and left the hotel without reporting what had taken place to hotel management. As they were driving home, the two women changed their minds and decided to report the incident to both Borgata security and the Atlantic City Police Department. Subsequent investigations conducted by Borgata confirmed that a master security key was used to gain access to the room. Kamran admitted to his participation in the incident. The use of this security key by security staff without a proper basis is prohibited by Borgata policy. The security guards involved in this incident were disciplined; Kamran was fired.
Against this backdrop, plaintiffs filed suit against Kamran individually, other fictitiously designated security guards, and the Borgata. Plaintiffs alleged that the Borgata was vicariously liable for the acts committed by Kamran because the Borgata: (1) failed to properly supervise the security guards; (2) negligently hired Kamran without conducting a thorough background search; (3) failed to provide adequate training to the security staff; and (4) failed to provide a safe and secure environment to its business invitees.
Through discovery, plaintiffs established that Kamran received only one day of training before he was permitted to assume his duties as a security guard. Although he was not given any instructions about access to rooms, Kamran admitted that accessing a room, in the manner and for the purpose involved here, was against Borgata policy. Borgata security manager Henry Flores testified that security officers are only required to report in at the beginning of their shifts. No other direct monitoring of security personnel is done throughout the shift. Finally, Kamran had worked as a security guard at the Claridge Hotel and Casino for three years before working at the Borgata. There was nothing in his employment history that indicated any propensity for improper behavior.
Acting on the Borgata's motion for summary judgment, Judge Todd found no basis to impose liability on the Borgata for Kamran's action. Judge Todd explained his ruling orally from the bench, and in a memorandum of opinion. Plaintiffs now appeal arguing that summary judgment was improvidently granted because there are material factual issues in dispute concerning:
(1) Kamran's motive for entering the room occupied by plaintiffs; and (2) the adequacy of the Borgata's supervision of the security staff.
We reject these arguments and affirm substantially for the reasons expressed by Judge Todd in his well-reasoned memorandum of opinion dated August 10, 2007. Our review of the trial court's decision to grant summary judgment is de novo. Twp. of Cinnaminson v. Bertino, 405 N.J. Super. 521, 531 (App. Div. 2009). Applying the same standards used by the trial court, we are satisfied that summary judgment in favor of defendant Borgata was properly granted. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2. The record is ripe for disposition as a matter of law, and the Borgata is entitled to the relief requested.
Plaintiffs have not presented any evidence showing that the training given to security personnel by the Borgata was improper, and that this impropriety was a proximate cause of any injuries allegedly sustained by plaintiffs. The mere assertion by plaintiffs that a policy requiring closer monitoring of the security guards by supervisory staff would have prevented this incident, does not render such a proposition self-evident. Plaintiffs have the burden to establish the relevant standard of care, and then, through competent professional opinion, offer evidence to show how the Borgata's current personnel monitoring practices deviate from that standard. Plaintiffs failed to offer any evidence to meet this burden.
The record is equally barren of any evidence showing that Kamran's acts against plaintiffs fell within the scope of his employment. Carter v. Reynolds, 175 N.J. 402, 412 (2003). The doctrine of vicarious liability is not available without such a link. Id. at 412-13.
Finally, on the question of negligent hiring, the record does not contain any evidence that would have placed a reasonably prudent employer on notice of Kamran's potential for committing this or similarly unacceptable acts. Puckrein v. ATI Transport Inc., 186 N.J. 563, 575 (2006).
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