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Cheryl Denisco, et al v. Boardwalk Regency Corp. D/B/A Caesar's Atlantic City

January 15, 2013

CHERYL DENISCO, ET AL., PLAINTIFFS,
v.
BOARDWALK REGENCY CORP. D/B/A CAESAR'S ATLANTIC CITY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Simandle, Chief Judge:

OPINION

I. INTRODUCTION

Before the Court is a motion for summary judgment [Docket Item 32] brought by Defendants Boardwalk Regency Corp., doing business as Caesar's Atlantic City, and three Caesar's employees, Wendy Rahier, Renee Giannini and Justin Mens. Also pending are Defendant Linda Ventura's motion to preclude expert testimony and limit Plaintiffs' damages [Docket Item 38] and a cross-motion to preclude expert testimony and limit damages [Docket Item 43] brought by the rest of the Defendants.

Plaintiffs Cheryl Denisco and her mother-in-law Marie Denisco, along with their respective husbands John and James, brought this complaint alleging that Defendant Ventura, an aesthetician, used unsterilized needles while giving the women facials at the Qua Spa at Caesar's Atlantic City, possibly exposing the women to blood-borne diseases such as HIV and Hepatitis. [Compl. ¶¶ 22-24.] The complaint also named as Defendants Boardwalk Regency Corp. as well as spa manager Rahier, spa supervisor Mens and lead aesthetician Giannini (hereinafter "corporate Defendants" or "Caesar's"). Plaintiffs, who spent months fearing they might contract diseases and receiving medical tests and preventative treatment, seek damages for assault and battery, negligence, intentional and negligent infliction of emotional distress, and punitive damages.

The Court must decide if Plaintiffs and Defendant Ventura, in their opposition to the motion for summary judgment, adduce evidence from which the finder of fact could reasonably find in favor of the Plaintiffs. The key factual questions concern the training and supervision of Defendant Ventura, namely whether the spa supervisors instructed Ventura not to use needles or other instruments that could penetrate the skin and whether the supervisors were aware that Ventura nonetheless regularly kept needles in her treatment room. Because the Court finds that Plaintiffs and Defendant Ventura raise genuine issues of material fact for most of their claims, the motion for summary judgment will be denied in large part and granted in part.

II. Background

A. Facts

Nearly all of the facts of this case are contested. On July 19, 2008, Cheryl and Marie Denisco received facials at the Qua Spa at Caesar's Atlantic City in Atlantic City, N.J. [Pl.'s Counter Statement of Facts ("Pl. SF") ¶ 1.] Corporate Defendants admit nothing else about that day's events.*fn1 [Def.'s Statement of Undisputed Facts ("Def. SF") ¶¶ 43-47; Def.'s Resp. to Pl.'s Counter Statement of Facts ¶¶ 1-8.] Plaintiffs allege that Defendant Ventura administered facials to both women, successively, and that during the treatments she used a small needle called a "lancet" to penetrate their skin. [Pl. SF ¶¶ 2-4.] Both Plaintiffs allege the use of the lancet left marks on their face, and Cheryl testified she started bleeding. [Id. ¶ 4; Pl. Ex. O; Cheryl Dep. 35:15-22, 41:5-9.] Plaintiffs allege that Defendant Ventura used "the same lancet on both Cheryl and Marie and likely on other clients." [Pl. SF ¶ 5.] Plaintiffs allege that the lancet was not sterilized between uses. [Id. ¶; Cheryl Dep. 55:5-58:10.]

Plaintiffs feared the possibility that they had been infected with blood-borne diseases, such as HIV or Hepatitis, and sought medical treatment. [Pl. Opp'n at 3-4.] Each began a course of prophylactic antiretroviral medication. [Id.] Over the course of the next eleven months, Cheryl was tested for HIV and Hepatitis several times, and each test came back negative. [Cheryl Dep. at 85:24-87:13.] Marie was tested over a period of 90 days. [Marie Dep. at 29:14-19.] Both women testified they adjusted their behavior as if they were infected with HIV and engaged only in protected sexual activity with their husbands. [Cheryl Dep. 82:4-9, 88:11-16; Marie Dep. 34:1-8.]

B. Complaint and Procedural History

Cheryl Denisco and her husband John, as well as Marie Denisco and her husband James Denisco, filed a 16-count amended complaint against Defendant Ventura and the corporate Defendants. [Am. Compl. at Docket Item 10.] The complaint properly invoked diversity jurisdiction under 28 U.S.C. § 1332. [Id. ¶¶ 13-14.] Cheryl and Marie Denisco sued for assault and battery and negligence on various grounds, including using a lancet in violation of New Jersey law, N.J. Admin. Code § 13:28-2.15, using a lancet without exercising reasonable care, failure to sterilize the lancet and other equipment, and using a lancet without consent. [Id. ¶¶ 37-45, 61-70, 110-118, 134-144.] Plaintiffs also claim intentional infliction of emotional distress and negligent infliction of emotional distress against all Defendants. [Id. ¶¶ 89-106, 163-181.] Cheryl and Marie Denisco allege negligence against the corporate Defendants on additional grounds, including negligent entrustment, and negligent hiring, training and supervision of Defendant Ventura. [Id. ¶¶ 46-60, 119-133.] John and James Denisco allege loss of consortium. [Id. ¶¶ 185-190.] Plaintiffs also seek punitive damages. [Id. ¶¶ 107-109, 182-184.]

Defendant Ventura brought cross-claims against the corporate Defendants "for the proportionate share" of any judgment against her and for common law indemnification.*fn2 [Docket Item 24 at 18-19.]

The corporate Defendants then filed the present motion for summary judgment. Soon thereafter, Defendant Ventura filed a motion to limit Plaintiffs' damages to emotional distress suffered in the "window of anxiety" between the date of the facials and when it became highly unlikely that Plaintiffs could develop HIV or Hepatitis from Ventura's use of the lancet, approximately one year from the date of the incident. [Docket Item 38 at 10-13.] Ventura also moves to bar expert testimony about Plaintiffs' emotional distress to the same window of anxiety." [Id.] Corporate Defendants filed a cross-motion to bar expert testimony and limit damages, relying on Defendant Ventura's statement of facts and legal brief.*fn3 [Docket Item 43.]

III. Summary Judgment Motion

A. Standard of Review

A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if, based on the evidence in the record, a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit. Id. The court will view evidence in the light most favorable to the non-moving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. Hunt v. Cromartie, 526 U.S. 541 (1999).

The Court will address the overlapping claims of Cheryl and Marie Denisco together.

B. Negligent Hiring

Under New Jersey law, negligent hiring has "two fundamental elements." Di Cosala v. Kay, 450 A.2d 508, 516 (N.J. 1982).

First, an employer is liable "for the torts of its employees beyond the scope of the employment where it knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons." Id. Second, "through the negligence of the employer in hiring the employee, the latter's incompetence, unfitness or dangerous characteristics proximately caused the injury." Id.; see also Piscitelli v. Classic Residence by Hyatt, 973 A.2d 948, 965 n.9 (N.J. Super. Ct. App. Div. 2009) (restating the tort of negligent hiring as requiring "that the employer knew or had reason to know of the particular unfitness, incompetence, or dangerous attributes of the employee and that the employer could reasonably have foreseen that the qualities created a risk of harm to other persons").

Corporate Defendants argue that there is no evidence in the record that Caesar's had or should have had knowledge of Defendant Ventura's unfitness, incompetence or dangerous attributes. [Def. Mot. at 5.] Rahier testified that Caesar's verified that all spa employees had appropriate licenses for massage therapy and for aesthetics, and that Rahier found Defendant Ventura to be a well-qualified, professional candidate for her job. [Rahier Dep. at 12:19-13:2, 47:20-25.]

Defendant Ventura, in her opposition to the motion, argues that her use of lancets was foreseeable, creating a genuine issue of material fact as to whether Rahier and Caesar's were negligent in hiring her. [Def. Ventura's Opp'n at 10-11.] Ventura supports this claim by arguing that she openly used lancets at Qua Spa and that her supervisors had seen them. [Id. at 11.] Even if that were true, any knowledge that Rahier or others developed after Ventura was hired would be irrelevant to whether Rahier and Caesar's were negligent in hiring Ventura in the first place. The only assertion that Ventura makes relevant to her hiring is that "[i]f Rahier had asked the right questions during her interview of Ventura, she would have learned that Ventura regularly used lancets and did not know lancets were illegal in New Jersey." [Id. at 11.] Ventura testified in her deposition that she had been trained at her previous job to use lancets and that her previous employers bought lancets for her to use. [Ventura Dep. at 31:10-16, 73:6-11.]

Plaintiffs also argue that there are issues of material fact to show Caesar's was negligent in hiring Defendant Ventura, however, Plaintiffs argue in support of their claims for negligent hiring, supervision and training simultaneously, and exclusively discuss Ventura's training or supervision. [Pl. Opp'n at 7-11.] In their response to the corporate Defendants' statement of facts, Plaintiffs argue that Caesar's never provided Rahier with any training about the laws of New Jersey, at most implying that Rahier should have known about the prohibition of lancets during the hiring process. [Pl. SF ¶ 10; Rahier Dep. at 13:7-11.]

The evidence in the record does not create a genuine issue of material fact as to Caesar's negligent hiring. An employer is not required to ask all conceivable questions about a prospective employee's practices or techniques, especially where, as here, the applicant was duly licensed and there is no indication, even today, that her prior use of lancets was unlawful or without consent of her clients. Because all new employees participate in training controlled and run by Qua Spa, if Ventura emerged from the training with the understanding that the use of lancets was permitted and acceptable, the negligence would lie in the deficient training and supervision of Ventura, not in the decision to hire Ventura as the person to perform work according to the employer's guidelines and policies. Similarly, even if Rahier were ignorant of relevant New Jersey laws and regulations, that ignorance would not be relevant at the time of hiring; rather, that lack of knowledge might help support a claim of negligent training or supervision, if the supervisors lacking relevant knowledge insufficiently trained or supervised their employees as a result. The record contains no evidence that Ventura ever used lancets inappropriately or on patients without their consent prior to employment at Qua Spa. Therefore, Defendant Ventura's alleged dangerous attributes or characteristics did not create a foreseeable risk of harm to others, and corporate Defendants were not negligent in failing to uncover Ventura's past experience with lancets during the hiring process. The motion for summary judgment on the claim of negligent hiring will be granted.

C. Negligent Training

To sustain a claim of negligent training under New Jersey law, the plaintiff must show: "(1) the defendant owed a duty of care to the plaintiff, (2) defendant breached that duty of care,

(3) defendant's breach was the proximate cause of plaintiff's injury, and (4) defendant's breach caused actual damages to plaintiff." Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721 (D.N.J. 2010) (citing Weinberg v. Dinger, 524 A.2d 366, 374-75 (1987)).

Corporate Defendants argue that Plaintiffs fail to adduce evidence on the second and third elements of the claim, breach of duty and proximate cause. [Def. Mot. at 8.] Defendants argue that Ventura was provided with a job description that stated employees are "not to use any equipment that can break the skin." [Id.;

Def. Ex. H.] Defendants also argue that new hires are trained on the "step-by-step procedures as to how to give a facial." [Def. Mot. at 8.] New aestheticians are not permitted to bring in their own tools or instruments to the spa and are not permitted to bring personal items into treatment rooms. [Id. at 8-9.]

Plaintiffs counter with evidence contradicting each of these contentions. Plaintiffs claim that Defendant Ventura never received the cited job description that warned employees about equipment that breaks the skin. Plaintiffs point to the receipt of property issued to and signed by Ventura, in which she acknowledged receiving 11 documents from Caesar's; the list does not include the job description. [Pl. Ex. H.] Plaintiffs argue that Ventura never received step-by-step training about how to give a facial. [Giannini Dep. at 45:15-46:1 (stating that the brochure given to Ventura did "not say[] how to specifically do any facial").] Ventura testified that she was never told during the training not to use lancets or what tools to use. [Ventura Dep. 35:6-14.] Giannini and Ventura both testified that they never were told they were prohibited from bringing in outside implements to the spa. [Id. at 25:13-16 (answering in the negative whether "anybody ever [told] you you were not permitted to bring in any outside implements or materials?"); Giannini Dep. at 28:11-15 (answering in the negative a ...


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