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Charles S. Hottenstein, Administrator For the Estate v. City of Seal Isle City; et al

June 17, 2011

CHARLES S. HOTTENSTEIN, ADMINISTRATOR FOR THE ESTATE
OF TRACY HOTTENSTEIN; CHARLES S. HOTTENSTEIN; AND ELIZABETH K. HOTTENSTEIN, PLAINTIFFS,
v.
CITY OF SEAL ISLE CITY; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS , Senior District Judge:

This wrongful death / survivorship suit arises out of the untimely and tragic death of Tracy Hottenstein. *fn1 Presently before the Court is the Motion to Dismiss filed by Defendants Bennett Enterprises, Inc., and James J. Bennett. For the reasons stated herein, James Bennett's Motion will be granted, and Bennett Enterprises' Motion will be granted in part and denied in part.

I.

Sometime after 2:15 a.m. on February, 15, 2009, in Sea Isle City, Tracy Hottenstein, who was intoxicated at the time, fell off a public dock into the ocean below. The Complaint avers that the weather was 35 degrees Fahrenheit and windy. Several hours later, Tracy was discovered unresponsive on the ground near the dock. After a series of events not directly relevant to the instant Motion, she died.

Tracy was visiting Sea Isle City for the annual "Polar Bear Plunge," an event which the Complaint alleges is intended to "benefit the town economy and allow local businesses to make money in the winter season from the thousands of visitors expected." (Compl. ¶ 29) However, Tracy did not participate in the organized plunge into the Atlantic Ocean. She only came to "attend[] the festivities," including "visiting the local bars" with her friends. (Id. ¶ 38) *fn2

According to the Complaint, Tracy visited three bars over the course of several hours on February 14, 2009. She first visited the Springfield Inn. (Compl. ¶ 39) The Complaint does not state whether Tracy consumed any alcohol while there, or approximately how long she stayed.

Next Tracy visited the "LaCosta Lounge" which is apparently the trade name of moving Defendant Bennett Enterprises, Inc., allegedly "owned in whole or in part by and / or operated by

[D]efendants Paul Baldini and James J. Bennett." (Compl. ¶ 17) *fn3

The Complaint alleges that Tracy "and several friends were served alcoholic beverages at the bar. [Tracy] was served even though she was visibly intoxicated." (Id. ¶ 40)

Tracy eventually left LaCosta Lounge and went to Ocean Drive bar, where she was allegedly served alcohol "while in a visibly intoxicated state." (Compl. ¶ 43)

Later, Tracy and a friend, Michael Miloscia, joined Mark and Patti Lloyd at the LLoyd's home for dinner where Tracy was allegedly served more alcohol. (Compl. ¶ 43) After dinner, Tracy and Michael returned to Ocean Drive bar where Tracy was allegedly served more alcohol. (Compl. ¶¶ 45, 46)

The Complaint avers what happened next:

[v]ideo shows that [Tracy] without any outdoor clothing on, followed Miloscia out of the Ocean Drive bar at or about 2:15 a.m. on February 15, 2009. . . . Miloscia at some point abandoned [Tracy] . . . . [Tracy] in her intoxicated state[,] wandered to the dark, dangerous public docks from the Ocean Drive bar, fell off into the dark icy water and struggled out to the location she was found the morning of February 15, 2009. (Compl. ¶¶ 60-62)

The Complaint alleges the following claims against the moving Defendants: (1) negligence; (2) negligent hiring, training and supervising of personnel; (3) "vicarious liability and / or actual or apparent agency"; (4) negligent infliction of emotional distress upon Plaintiffs (Tracy's parents); (5) a survival claim; (6) wrongful death; (7) violation of New Jersey's Licenced Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 et seq. (the "Dram Shop Act"); (8) a "wrongful death and survival action pursuant to [42] U.S.C. § 1983"; (9) a "state created danger [claim] pursuant to [42] U.S.C. § 1983"; (10) a claim pursuant to New Jersey's Civil Rights Act, N.J.S.A. 10:6-1 et seq.

Defendants Bennett Enterprises, Inc., and James J. Bennett presently move to dismiss all claims against them pursuant to Fed. R. Civ. P. 12(b)(6).

II.

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2).

While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips , 515 F.3d at 234. "A claim has facial plausibility when the ...


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