On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-488-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Graves.
Plaintiff appeals from an order of March 20, 2009 granting defendant's motion for summary judgment and dismissing his complaint. He alleges he was falsely accused of "groping" a hostess as he endeavored to enter a reception "after-party" held at the Club MIXX at the Borgata Hotel in Atlantic City. He was directed by security officers to an office, asked to show his driver's license, and told no charges were to be filed, but was escorted off the premises and directed never to return to the Borgata under penalty of being arrested for trespassing. The plaintiff's expert, Andrew P. Sutor, opined that defendant "failed to utilize . . . security camera resources prior to detaining and formally ejecting the plaintiff." Sutor, a "Security and Safety Consultant," also opined that defendant "failed to have official law enforcement . . . properly investigate this incident."
The primary questions before us are: (1) was there a dispute as to whether there was any touching of Shannon Niland, a hostess of the Mur.Mur Club, much less an intentional one; (2) whether Ms. Niland or any other employee of the Borgata made a false statement or accusation about same; and (3) did defendant's employees and agents act reasonably.*fn1 Plaintiff insists there is a factual dispute regarding whether any touching occurred and, if so, whether it was intentional. Plaintiff further insists the judge's decision was premised on the finding of a factually disputed intentional touching that justified defendant's conduct and that, even if there was some unintentional "brushing," defendant's conduct was unreasonable. Further, according to plaintiff, defendant's Crowd Control Specialist Leonard Bennett, who was present at the scene, testified he observed no inappropriate touching but had nevertheless reported and participated in plaintiff's detention based on a groping that never occurred. Plaintiff alleged that defendant's conduct resulted in defamation, intentional infliction of emotional harm, a false arrest, false imprisonment, invasion of privacy and negligence, all resulting in injury to plaintiff, as embodied in counts two through seven. (Count one states "factual allegations").
Defendant asserts the judge could reasonably conclude based on the deposition testimony of Niland, Bennett and plaintiff's companion, Bernard Lynch, that there was a touching and therefore everything else which flowed therefrom constituted reasonable conduct and could not satisfy the elements required for any of the alleged torts.*fn2
The facts developed on the motion for summary judgment included the following:
On the evening of September 22, 2006, plaintiff attended a reception at the Tropicana Hotel Convention Center for the Utility Contractors Association as an invited guest. An "after-party" for the event was held at Club MIXX, a nightclub within the Borgata. While looking for Club MIXX with his companions, plaintiff was walking past a different Borgata nightclub, the Mur.Mur, when Niland, a hostess of the Mur.Mur Club, signaled for his attention to determine whether he needed help finding something in the Borgata.
According to Ms. Niland, at that time plaintiff approached her and touched her by "plac[ing] both hands on the top of [her] sides (between [her] stomach and breasts)." Niland reported that the way plaintiff touched her was "forceful and intrusive," and plaintiff said that if she "would join them," he would "come into the club." However, as we understand it, plaintiff testified at his deposition that he did not touch Ms. Niland, but his hand "came into contact" with a different hostess when she was "lifting up the entranceway" to Club MIXX, and his "hand hit underneath her breast and went up" when he arrived at that club. Plaintiff asserts that he accidentally touched the second hostess. However, the Borgata and its security personnel did not take any action with respect to plaintiff's touching of the second hostess.*fn3
Plaintiff was approached by two security guards who instructed him to accompany them to another area of the Borgata. When he asked for an explanation, one of the employees informed him that Ms. Niland had accused him of groping her while she stood in front of the Mur.Mur Club. Plaintiff denied the allegation and urged the security guards to review the Borgata's video surveillance recording of the area in which he had been standing during the encounter with Ms. Niland. Plaintiff claims that the security guards insisted he come with them to a separate, confined area of the Borgata, while he and his companions protested that he had done nothing wrong.
At his deposition, plaintiff testified
[I]t was made like, you know, I had to stay there. I was under the assumption I had to stay there because of security. . . . I had the feeling that if I tried to break lo[o]se and run they would probably try to tackle me, that's [the] feeling I had, but they didn't say I had to stay.*fn4
Plaintiff also acknowledged at the deposition that he "wanted to stay at the Borgata" and told the security guards "no problem, ...