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

August 18, 2011


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


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 are Motions for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) filed by Defendants Zaki Khebozou and Atlanticare Regional Medical Center, Atlanticare MICU Medics at Base 3, and Atlantic City Medical Center (collectively "ARMC").


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.

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, over the course of several hours on February 14, 2009, Tracy visited three bars and a friend's house where she consumed alcohol. *fn3

The Complaint avers what happened next:

[v]ideo shows that [Tracy] without any outdoor clothing on, followed [her fiend] 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 Sea Isle City police officers who arrived at the scene determined, based solely on feeling for a carotid pulse, that Tracy was deceased. ( Id. ¶ 75.) When the Sea Isle City Volunteer Ambulance Corps arrived at the scene at 7:52 a.m., they viewed Tracy from a distance of twenty feet and reported her "dead on arrival" without examination. ( Id. ¶ 77-78.) At 8:13 a.m., Atlanticare MICU medics, a mobile trauma team associated with Atlanticare Regional Medical Center, arrived on the scene and observed Tracy from a distance of six feet. *fn4 ( Id. ¶ 80.) Despite the fact that no medical treatment had been administered and no examination of Tracy conducted, an Atlanticare medic telephoned Defendant Zaki Khebzou, Trauma Chief, who pronounced Tracy dead at 8:22 a.m. over the phone. *fn5 ( Id. ¶ 84, 86.)

The Complaint alleges the following claims against the moving Defendants: (1) negligence; (2) negligent hiring, supervision and retention; (3) vicarious liability (only against ARMC); (4) negligent infliction of emotional distress upon Plaintiffs (Tracy's parents); (5) a survival claim; (6) wrongful death; and (7) a claim pursuant to New Jersey's Civil Rights Act, N.J.S.A. 10:6-1 et seq.

Defendants Khebzou and ARMC move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), arguing that all claims against them should be dismissed.


Pursuant to Fed. R. Civ. P. 12(c), "[a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A Rule 12(c) Motion for Judgment on the Pleadings is subject to the same standard of review as a Rule 12(b)(6) Motion to Dismiss. Turbe v. Gov't of V.I. , 938 F.2d 427, 428 (3d Cir. 1991); see also Spruell v. Gillis , 372 F.3d 218, 223 n.2 (3d Cir. 2004); Collins v. F.B.I. , 2011 WL 1624025, at *4 (D.N.J. April 28, 2011). 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 plaintiff pleads factual ...

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