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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...