August 20, 2010
MICHAEL EVANS CARADIMITROPOULO, PLAINTIFF-APPELLANT,
BORGATA HOTEL CASINO & SPA, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 3, 2010
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, I'll go wherever you want me to go."
According to plaintiff's brief, "after being separated from his companions [he] was escorted by approximately six security officers through the casino in the presence of friends and business acquaintances and brought to the security office." Plaintiff further alleges that one of the security officers informed him that he was being permanently evicted from the Borgata premises, and that if he ever returned he would be criminally charged with trespassing.*fn5
In contrast to plaintiff's account of the events in dispute, Ms. Niland stated that her encounter with plaintiff happened in the following manner, according to her "Associate Voluntary Statement":
The group of male guests walked slowly past [Club Mur.Mur] . . . . I asked the group of males if the[y] would be "joining us for the evening." One male in the group approached me, and placed both hands on the top of my sides (between my stomach and breasts). He commented that he would come into the club if I would join them. The way that the customer touched me was forceful and intrusive. I immediately pulled away from the customer, . . . and stated "absolutely NOT," in response to the customer's actions. His friends observed this incident, and pulled him away from the front door. I asked front door security, Leonard Bennett (who had witnessed the event), to call Russ Goss to the front door and to follow the group of males. . . . One male in the group (who had pulled away the male with whom I had the incident) approached me and said that while his friend's behavior was inappropriate, that he had apologized. (The male who had grabbed me appeared intoxicated, when they returned to the door.) I explained to the guest that I wanted security to handle the matter. After security removed the group from the front door of [Mur.Mur], Michael Shultz [the Borgata security director] called me. [After Shultz] explained the process of filing a complaint, I informed Michael Shultz that I did not wish to press charges.
Bennett, the "front door security" employee whom Ms. Niland referred to in her statement, also provided a written statement in which he claimed to have witnessed the encounter between plaintiff and Ms. Niland. He generally corroborated her version of the events:
As I answered questions from another guest in front of Club Mur.Mur I turned to my right to make sure no one was smokin[g] and as I turned I [saw] a gentl[e]man grab Shannon by her upper torso area and [make] a derog[a]tory remark that I could not hear because I had my earpiece in. At that point I detained the gentl[e]man and then called for my supervisor.
Plaintiff's companions, Chad Sorrell, Bernard Lynch, and Dan Lechner each witnessed the interactions between plaintiff and Ms. Niland and provided depositions regarding their observations. Lechner testified that the security staff "wouldn't let [plaintiff] just walk away" and that the guards informed him that he could not "go anywhere" but had "to stick around." Sorrell testified, however, that based on his observations, plaintiff "bumped into" a hostess, but did not know at which club it occurred. He did say the incident occurred while "we went through the ropes," which under plaintiff's version, would be at the Club MIXX.
Lynch, the third individual with the plaintiff, testified that plaintiff's experience at the Borgata has "become an embarrassment for him in business." However, Lynch did acknowledge that "[a]t some point, though, he [plaintiff] did touch her."
Bennett also gave deposition testimony. Bennett corroborated Ms. Niland's claim that plaintiff touched her on the side of her torso while plaintiff stood in front of the entrance to the Mur.Mur Club. He testified that he was about "five, eight feet away" from Ms. Niland when he observed plaintiff touch her in "the mid . . . side area" and "around the chest area." Bennett further testified that he thought the "touching lasted less than five seconds." When plaintiff's friends said "we'll take him," Bennett responded, "No, he has to wait until I call my supervisor."*fn6
Russell A. Goss, a senior security employee, testified he did not have a clear memory of his interactions related to plaintiff's incident at the Borgata. However, he confirmed that generally, a patron of the casino who becomes disorderly would be escorted to a "back office." Goss also testified that
[u]sually it's an eviction, that's where we take everybody to process. We'll take photos of the person for our eviction form.
Fill out an eviction form itself. Request the customer to sign it stating they understand they are being evicted. Sometimes they refuse, that doesn't change the eviction.
Joseph Vanderslice, the "highest ranking security official" for the Borgata nightclubs, testified that he made the decision to evict plaintiff from the casino. Vanderslice testified that prior to plaintiff's departure from the premises, he presented plaintiff with an eviction form to sign, which plaintiff refused to sign. However, plaintiff was subsequently escorted from the Borgata.
Finally, Ms. Niland testified plaintiff touched her "[c]lose to [her] breasts on [her] side" and claims his hands touched "both sides[,]" but that plaintiff did not actually touch her breasts, but "came very close." Her reactions to the touching were that she became "extremely shaken. . . . had a shortness of breath. . . . was very nervous. . . . [and] really upset." She testified that security staff advised her she could file criminal charges against plaintiff, but she decided not to do so, and continued to work the rest of her shift that night. In the remainder of her deposition testimony she confirmed the facts as she had recorded them in her written statement on the evening of September 22, 2006.
Following his negative experience at the Borgata, plaintiff attended nine psychological counseling sessions with C.L. Buddy Westbrook, a licensed professional counselor. Thereafter, on December 13, 2007, Westbrook prepared a report indicating that he had diagnosed plaintiff with an "[a]djustment disorder with mixed anxiety and depressed mood." According to Westbrook's report, plaintiff had experienced "anxiety, anger, and fears, . . . along with ruminating thoughts" and Westbrook was "certain that [plaintiff's] condition . . . was directly related to the incident at the Borgata Casino."
In his oral opinion of March 20, 2009, the motion judge stated that with respect to the defamation claim:
I specifically find that the plaintiff failed to provide . . . any competent evidence or proof that the defendant made a defamatory statement that was, in fact, false. . . . Accordingly, since there was no false statement made by the defendant, . . . there could be no communication of a false statement to a third person.
Regarding plaintiff's claim of intentional infliction of emotional distress (IIED), the judge granted summary judgment partly because neither the Borgata nor Ms. Niland had committed "any intentional outrageous conduct." He also determined plaintiff had "failed to establish a prima facie case with reference to the second requirement [of the IIED cause of action], that is, a showing of severe distress proximately caused by defendant's conduct."
The judge further found defendant was entitled to judgment as a matter of law on plaintiff's false arrest and false imprisonment claims:
The plaintiff, in sum, has failed to demonstrate either an arrest or detention against his will and/or lack of legal authority or justification.
I further find that the security staff, in fact, had legal justification to detain the plaintiff for purposes of investigating the complaint of the defendant, [Ms. Niland], consisting of a non-consensual touching and/or assault . . . .
Again, . . . the plaintiff consented or agreed to the investigation and to the direction or requirements placed upon him by the defendant security staff. . . .
[P]laintiff did not object or contest at any time during the course and/or conduct of the investigation -- or any detention resulting therefrom. . . . he voluntarily accompanied the security officer . . . to the security offices located in the rear of the casino.
The judge similarly rejected plaintiff's cause of action asserting that the Borgata committed an invasion of his privacy, finding "the record is devoid of any proof or of evidence of an intentional intrusion into the solitude, seclusion or private affairs of another." Finally, after analyzing the elements of a negligence cause of action in cases involving premises liability, the court dismissed plaintiff's negligence claim as well. The motion judge concluded that "the defendant, Borgata, under the facts and circumstances of this case[,] owed no duty of care to the plaintiff." Accordingly, the trial court ruled "the defendant is entitled to summary judgment as a matter of law" and granted its motion.
At oral argument on the motion, the judge fully understood that "[p]laintiff seems to indicate 'there were two separate instances of contact with two separate and different hostesses.'" Unfortunately, much of the judge's opinion is premised on the finding that "there clearly was a non-consensual touching of the defendant, [Shannon Niland], by plaintiff." The judge found a "preponderance of the evidence provided clearly indicates that the defendant, [Shannon Niland] was, in fact, subjected to . . . non-consensual touching," and that was confirmed by the depositions including the "plaintiff himself." We cannot agree there was no factual dispute as to a non-consensual touching of Ms. Niland, as opposed to plaintiff's statement there was a non-consensual touching of the second hostess. However, we agree that the remainder of the judge's reasons, as supplemented herein, warrants affirmance of the judgment.
As to the defamation claim, there is no proof that Borgata or any of its employees published a written or oral statement to a non-witness to the event other than internally to co-workers for legitimate business purposes.*fn7 In fact, the defamation count asserts only that "[d]efendant Jane Doe #1, did make a false and defamatory claim to Borgata security that plaintiff groped her, which he did not do" and that the false claim "communicated to Borgata security injured the plaintiff's reputation and caused plaintiff to experience emotional upset and anguish" (emphasis added).*fn8 Thus, as a matter of law, the allegations did not justify a claim of defamation. Feggans v. Billington, 291 N.J. Super. 382, 391-94, 399-400 (App. Div. 1996). Moreover, defendant's conduct was not shown to be either outrageous or intended to produce emotional distress so as to permit recovery for emotional distress damages. See Buckley v. Trenton Savings Fund Soc'y, 111 N.J. 355, 366 (1988).
By plaintiff's own admissions, the remaining counts were properly dismissed. Plaintiff admitted he told defendant's security officers "I'll go wherever you want me to go." He went with the officers voluntarily because he maintained he did nothing wrong and in an effort to resolve the manner amicably and remain in the hotel-casino with his companions. But even if he felt restrained, there was justification or probable cause to hold him pending an investigation of Ms. Niland's allegations. Thus, the false arrest and false imprisonment claims were properly dismissed. Mesgleski v. Oraboni, 330 N.J. Super. 10, 24-25 (App. Div. 2000); Barletta v. Golden Nugget Hotel Casino, 580 F. Supp. 614, 617-18 (D.N.J. 1984).*fn9
We also reject plaintiff's claim of negligence in failing to make a complete investigation before taking action. It is the endeavor to make the investigation which plaintiff contests in the other claims. In fact, plaintiff would have been restrained longer, while videotapes were reviewed and outside law enforcement offices responded to investigate, under the approach plaintiff now proposes. In any event, the circumstances do not reflect a breach of any duty owed to plaintiff.
We acknowledge that this case presents many factual disputes including whether Ms. Niland was touched, where plaintiff was detained, and if plaintiff had any confrontation in front of the Club MIXX. However, the existence of a factual dispute does not require a trial if there are no material disputes of fact. In essence, we agree with the motion judge's decision that the statements of Ms. Niland to her co-employees were not actionable and defendant and its security officers acted appropriately in response to Ms. Niland's report.
Finally, we need not examine if N.J.S.A. 5:12-71.1 trumps the claims plaintiff advances by authorizing the conduct undertaken here.