JEAN M. SMITH AND MARIE C. SMITH, Plaintiffs-Appellants,
HARRAH'S CASINO RESORT OF ATLANTIC CITY, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0827-11.
Jude Nelson argued the cause for appellants (The Law Firm of Osei & Nelson, L.L.C., attorneys; Mr. Nelson, on the brief).
Christopher C. Mauro argued the cause for respondent (Camacho Mauro Mulholland, L.L.P., attorneys; Mr. Mauro, on the brief).
Before Judges Yannotti, Ashrafi and Leone.
Plaintiffs Jean Smith and his wife, Marie Smith, appeal from summary judgment dismissing their complaint against defendant Harrah's Casino Resort of Atlantic City. They allege that Harrah's is liable to them for injuries caused to Jean Smith when Harrah's security officers allegedly assaulted him. We reverse the summary judgment in part and remand for trial on the potential vicarious liability of Harrah's for the alleged intentional tort of assault by the security officers.
Our standard of review from a summary judgment is plenary. Because we review the same documentary record as the trial court, we determine without deference to the trial court's ruling whether disputed issues of fact exist for determination by a jury and, if not, whether the trial court correctly applied the applicable law. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiffs' amended complaint contains two counts, one seeking compensation for Jean Smith's injuries and the second for Marie Smith's derivative per quod claim. See Hauck v. Danclar, 262 N.J.Super. 225, 227 (Law Div. 1993) (nature of per quod claim for loss of consortium). Plaintiffs sought recovery from Harrah's under various theories: negligent supervision and training of the casino's security personnel, vicarious liability for the use of excessive force, negligent infliction of emotional distress, and false imprisonment. Viewed most favorably to plaintiffs, see R. 4:46-2(c); Brill, supra, 142 N.J. at 540, the evidence presented in the summary judgment record revealed the following facts.
Jean Smith was a taxi driver in Atlantic City. On January 10, 2011, he pulled into the valet line at Harrah's to pick up a fare. The valet supervisor believed that Smith had cut into the line and directed him to leave. Smith argued that he had been in line and refused to leave. Harrah's security officers arrived on the scene, and an altercation ensued. Security officer Taron Lewis allegedly shoved Smith to the ground. Lewis and other officers subdued Smith, handcuffed him, and briefly placed him in a holding cell before ejecting him from Harrah's premises. A surveillance recording of the incident was preserved and shows the altercation. Smith alleged he was physically and emotionally injured as a result of an assault and battery.
Discovery in the litigation was initially scheduled to end on May 14, 2012. The court had already granted one extension of the discovery end date at the time that Harrah's moved to reopen discovery on August 16, 2012, so it could submit the report of its medical expert. On September 14, 2012, the court granted Harrah's motion over plaintiffs' opposition to the extension of discovery, and it set September 30, 2012, as the new discovery end date. On September 27, 2012, after Harrah's moved for summary judgment, plaintiffs moved to extend discovery once more so they could obtain a psychological evaluation of Jean Smith. The court heard oral argument and denied plaintiffs' motion to extend discovery once again. It granted defendant's motion for summary judgment. It found that plaintiffs did not have sufficient evidence to prove Harrah's negligence, and that Harrah's could not be held vicariously liable for Lewis's conduct because an assault was not within the scope of his employment as a security officer.
Generally, summary judgment is inappropriate when discovery is incomplete if "critical facts are peculiarly within the moving party's knowledge." Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) (quoting Martin v. Educ. Testing Serv., Inc., 179 N.J.Super. 317, 326 (Ch. Div. 1981)) (internal quotation marks omitted). However, summary judgment may be granted if further discovery will not alter the result. Minoia v. Kushner, 365 N.J.Super. 304, 307 (App. Div.), certif. denied, 180 N.J. 354 (2004). Also, if the discovery period has already closed and the standard for re-opening discovery is not shown, summary judgment may be granted even if the opposing party claims that additional discovery will provide evidence to demonstrate a disputed issue of fact. Schettino v. Roizman Dev., 310 N.J.Super. 159, 165 (App. Div. 1998), aff'd, 158 N.J. 476 (1999).
Plaintiffs argue that they were not given an opportunity to produce a psychologist's report, that Harrah's did not cooperate in producing Lewis for a deposition, and that Harrah's did not provide documents that plaintiffs had demanded in discovery. Harrah's, however, was not responsible for plaintiffs' failure to obtain a psychologist's report before the end of the discovery period. Furthermore, Harrah's had discharged Lewis from his position as a result of the incident, and he was no longer within Harrah's power to produce for deposition. In addition, plaintiffs received the allegedly delinquent discovery documents along with ...