On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2029-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 11, 2009
Before Judges Payne and Waugh.
Plaintiff, Marla Carleen, and her husband, Donald Carleen, suing per quod, appeal from the dismissal of the their suit against defendant The TJX Companies, Inc., d/b/a T.J. Maxx (hereafter, T.J. Maxx), at the conclusion of the evidence, as the result of the trial judge's determination that plaintiffs had offered insufficient proof of damages. T.J. Maxx has cross-appealed from the trial judge's finding, at the conclusion of plaintiffs' case, that they had presented prima facie evidence of liability on the part of T.J. Maxx.
The evidence at trial disclosed that, on June 3, 2004, while trying on a bathing suit in a dressing room at a T.J. Maxx store located in Gillette, New Jersey, a store employee, Eduardo Mendez, photographed or attempted to photograph Marla Carleen's nude body, by placing his cell phone under the door of her dressing room. When Carleen realized what was occurring, she dressed and informed the acting store manager, Ronald Newman, of the incident and described the employee who had been stationed at the security desk when she entered the area of the women's dressing rooms. Newman identified Mendez as the person described by Carleen, but Mendez denied doing the acts that Carleen described. Newman also called his district manager and the company's loss prevention manager to inform them of what had occurred. He declined to call the police, and as a result, on Donald Carleen's advice, Marla Carleen contacted them. Following a further investigation by the police and an examination of Mendez's cell phone, which disclosed a picture of another nude woman apparently in a T.J. Maxx dressing room, but not a picture of Carleen, on June 21, 2004, Mendez confessed to having tried to photograph Carleen. His employment was promptly terminated.
At the time of the incident, the store was equipped with male and female dressing rooms, separated by an area containing a security desk. A sales associate was assigned to staff the security desk for the purpose of counting items taken in and out of the dressing rooms so as to guard against shoplifting. Usually, the sales associate was female, but the store had no policy against assigning males to that duty. On the day in question, a sales associate named Claudia was on duty. Just prior to the incident, she was called away by Newman to assist in determining "markdown capture rates." When Claudia reported to Newman, she stated that she had obtained coverage for the security desk, without specifying who was providing that coverage. Newman testified that he accepted Claudia's statement, regarding her to be a responsible employee with good judgment. In fact, Claudia had enlisted Mendez, a person who was employed as a backroom coordinator, not a sales associate. Mendez happened to be in the area at the time because he was delivering sensors for handbags to Claudia. There was no testimony that Claudia knew that the security position could only be filled by a sales associate. There was also no testimony that Mendez was incompetent to fill the duties of the security position, although it was not within his job description. The only job evaluation of Mendez that was disclosed at trial revealed no disciplinary proceedings against him of any sort.
Prior to trial of the matter, T.J. Maxx sought summary judgment on all claims against it. Its motion was partially granted, and on November 2, 2007, an order of summary judgment was entered "as to claims related to negligent hiring and retention (Count 5*fn1 ) and respondeat superior." Plaintiffs' counsel characterized the remaining claim against T.J. Maxx at trial solely as its negligent failure to provide reasonably safe premises for the use of shoppers such as Carleen.
Nonetheless, the trial judge likened the claim to one of negligent infliction of emotional distress and, relying principally on the case of Williamson v. Waldman, 150 N.J. 232 (1997), a claim for negligent infliction of emotional distress by a cleaning woman who received a puncture wound from a lancet while cleaning a medical office, held that although the emotional distress suffered by Carleen was "genuine," its intensity and duration were insufficient to sustain a damage award in her favor.
Following our review of the plaintiffs' complaint in this matter, together with the trial transcript, arguments of counsel,*fn2 and applicable precedent, we have concluded that the trial judge was mistaken in her characterization of plaintiffs' cause of action and her application of damage principles recognized in the context of claims for intentional or negligent infliction of emotional distress. In such cases, the Supreme Court has held that, to avoid specious claims, recovery is permitted only where the emotional distress experienced by the plaintiff is "severe." See, e.g., Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 368 (1988). As the Court stated in that decision, the mental distress must be "so severe that no reasonable man could be expected to endure it." Ibid.
We have been offered no legal support for the argument that such a heightened standard is applicable in a case premised upon emotional injuries sustained from criminal*fn3 or tortious*fn4 invasion of privacy allegedly occurring as the result of the defendant's failure to maintain a safe premises. Indeed, it would be illogical to conclude that the emotional distress arising from an invasion of privacy was non-compensable, when injury of that type is the most likely result of circumstances, such as these, in which the defendant's conduct "struck directly at the personhood of plaintiff." Rumbauskas v. Cantor, 138 N.J. 173, 182 (1994) (citing Canessa v. J.I. Kislak, Inc., 97 N.J. Super. 327, 351 (Law Div. 1967)). Indeed, it has been held that "[i]n such suits, some of the major elements of damages are humiliation, embarrassment, mental suffering and wounded sensibilities." Rumbauskas, supra, 138 N.J. at 179 (citing Canessa, supra, 97 N.J. Super. at 353). See also Restatement (Second) of Torts § 652H (1965) (recognizing as damages from invasion of privacy a plaintiff's mental distress, if it is of a kind that normally results from such an invasion). We thus find that judgment in favor of T.J. Maxx was improperly granted on the ground of insufficient proof of damages. While the emotional distress sustained by Carleen may not have met Buckley's standard of severity, that distress was unquestionably genuine and reasonably foreseeable under applicable tort standards.
We next turn to the cross-appeal of T.J. Maxx, in which it argues that the plaintiffs failed to establish negligence on its part. It is clearly established that:
The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation. The measure of that care has been described as "due care under all the circumstances." "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." If the reasonably prudent person would foresee danger resulting from another's voluntary criminal acts, the fact that ...