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Maran v. Victoria's Secret Stores, LLC

United States District Court, D. New Jersey

October 22, 2019

ERIK MARAN, Plaintiff,


          KEVIN McNULTY. U.S.D.J.

         Plaintiff Erik Maran alleges that he was exposed to a loud noise from a disc jockey's (DJ's) loudspeaker at a Victoria's Secret sales event, and suffered hearing loss as a result. Maran brought this negligence action against several entities that were in various ways associated with the mishap. Now before the Court are motions for summary judgment filed by two pairs of defendants:

         (a) Victoria's Secret Stores, LLC ("Victoria's Secret") and Scratch Events, LLC ("Scratch") (DE 86); and

         (b) Robert Silva and DJ Silva, LLC (together referred to as "Silva" unless otherwise specified) (DE 87).

         For the reasons that follow, the motions are GRANTED in part and DENIED in part. The net result is that Scratch is dismissed from the case entirely. The only remaining counts against Victoria's Secret are Count I (Negligence) and Count II (Premises Liability). The only remaining count against Silva in his personal capacity and DJ Silva, LLC is Count I (Negligence).

         I. BACKGROUND

         A. The Incident

         On the evening of December 7, 2014, Maran and his girlfriend, Regina Swartz, went to the Victoria's Secret store at the Short Hills Mall. (DE 87-5). Maran and Swartz were there to attend the Fashion Show Shopping Event, to which they had been invited by Victoria's Secret. (DE 87-5). Upon their arrival, the event had not yet formally begun. Maran recalled that there were only a few customers in the store. (DE 87-6 at 97:5-11).

         Maran and Swartz entered the store on its right side and walked toward the center sales space. (DE 87-5). In this center space, along the merchandise aisles, there were large loudspeakers mounted on floor stands, so that each speaker box was approximately five to six feet above the floor. (DE 87-5). The speakers were placed immediately adjacent to the aisles. (DE 87-5). Maran later testified that he noticed the placement of the speakers, observing that whoever set them up had wisely left the aisle clear, so that patrons could circulate freely. He added that he noticed the placement of the speaker because, as an architect, he paid attention to details like that. (DE 87-6 at 117:15-118:8).

         The event had not yet begun when Maran and Swartz arrived, and there was no sound or music emanating from any speaker. (DE 87-5). As Maran passed through the store, he walked in the aisle between a display table of merchandise and a speaker that was two or three feet away from him. (DE 87-5). As Maran passed, a speaker on his left side, which until that point had been silent, suddenly emitted a blast of sound. (DE 87-5). Maran testified that he immediately felt pain:

I put my hands to my ears immediately, to cover them because they hurt, and moved away as quickly as I could. I noticed an immediate change in my ears, as if a switch had been turned off, I continued to cover my ears until I connected with Regina and we left the store.
The speaker was not attended by anyone, and was silent before the sound blast. There was no advanced warning, test or sound check while we were present, which might have given me time to redirect my path away from the speaker. The volume was immediately turned down or off after the blast. I don't remember what kind of sound or /music it was, as it was brief and I became immediately focused on covering my ears for the rest of the time I was in the store.

(DE 87-5 at 2-3). Maran could not further elaborate on the nature or source of the sound. (DE 87-6 at 120:17-20). The blast lasted for approximately one second, and the speaker again fell silent. (DE 87-6 at 120:21-23). In all, Maran had been at the store for less than five minutes when the sound blast occurred (DE 87-6 at 98:3-5), and he left the store about a minute or two afterward, (DE 87-6 at 110:20-116:6).

         Maran later testified that apart from the speaker that caused the offending blast, he does not remember other sound equipment at the store on the day of the incident. (DE 87-6 at 114:5-8). He did not then know who operated the speaker or controlled its volume. (DE 87-6 at 132:14-25). Maran has no particular recollection of a DJ, DJ booth, DJ equipment, or other sound equipment at the store. (DE 87-6 at 106:25-107:3; 114:13-15). In fact, it was only later that he and Swartz learned that Victoria's Secret had hired a DJ. (DE 87-6 at 115). Maran testified that he did not see any other customers react to the sound from the speaker or lodge any complaints about the sound. (DE 87-6 at 125:3-13).

         B. The Aftermath

         Maran alleges that the sound blast injured and impaired the hearing in both of his ears:

1) I have hearing loss in my left ear, which has remained consistent based on all testing in subsequent visits since the event. Based on what Dr. Fieldman and others have told me, my hearing loss is in a particular range, a "notch," which is indicative of loss of hearing due to a blast.
2) I have Tinnitus 24/7 in my left ear.
3) I have high sensitivity in both my right and left ears, also known as Hyperacusis, as labeled in Dr. Fieldman's notes.

(DE 87-5 at 3).

         The pain had not abated a month after the incident, and so on January 12, 2015 Maran began seeing Dr. Robert Fieldman, an otolaryngologist.[1] (DE 91 ¶ 112). Dr. Fieldman administered several unsuccessful treatments to Maran, including steroid shots and acupressure. (DE 91 ¶ 112). He also conducted hearing studies, a tympanum pressure study, and a head scan. (DE 91 ¶ 112). Dr. Fieldman concluded that Maran had suffered hearing loss in the left ear, and that there was no surgical option for addressing the hearing loss, the hyperacusis, or the tinnitus. (DE 91-2 at 42).

         Dr. Fieldman determined that Maran has "a notch" in his hearing that is consistent with loss of hearing due to a blast.[2] (DE 91 ¶ 113). He also explained that "[m]ost people have hearing loss [that is] spread out over the range of sound[, but Maran has] it in one particular area and that's consistent with a blast." (DE 91 ¶ 113).

         Dr. Fieldman's report concluded:

In my opinion his sensorineural hearing loss and tinnitus in his left ear are permanent in nature and were proximately caused by the loud noise that he was exposed to from the speaker at the time of the incident. My diagnosis is traumatic noise induced sensorineural hearing loss and tinnitus to his left ear. His prognosis is permanent sensorineural hearing loss and tinnitus with continued ringing and hyperacusis.

(DE 91 ¶ 114; DE 91-2 at 42)- Audiologist Natan Bauman also evaluated Maran and concluded that there exists a causal link between the incident at the store and Maran's hearing loss:

In consideration of all of the above and presenting medical and audiological evidence, it is my professional opinion, that there are no basis [sic] to dismiss the linkage between the original incident of December 7th, 2014 and the latent onset of tinnitus. Therefore, it is my professional opinion that the latent tinnitus resulted from the original December 7th, 2014 incident.
It is also my professional opinion that the hyperacusis that Mr. Maran suffers from, in the contralateral ear, is due to the same incident which occurred on December 7th, 2014

(DE 91 ¶ 115; DE 91-2 at 55).

         C. Scratch Events and Silva

         Victoria's Secret engaged the services of Scratch Events, a promoter for events of this kind. (DE 30 & 44; DE 86 ¶ 17). Indeed, Victoria's Secret had hired Scratch to provide DJs for 350 of its stores, the December 7, 2014 event being a nationwide one. (DE 87 ¶ 16). Scratch asked Silva, [3] with whom it had a professional history, to acts as DJ for event at the Short Hills Mall store. (DE 30 & 44; DE 86 ¶ 17). The DJ on duty on December 7, 2014 was in fact Silva. (DE 30 & 44).

         At the time of the event, Silva had been a professional DJ for over fifteen years. (DE 86 ¶ 18). In 2011 he had entered into a Talent Services Agreement with Scratch and had worked at prior events under the terms of that agreement. (DE 87-9 & 87-10). Silva testified that that when he performed at the Victoria's Secret store on December 7, 2014, he was doing so pursuant to his Talent Services Agreement with Scratch. (DE 87-8 at 41:9-15).

         In all, Silva has performed at three events for Victoria's Secret, the last being the one on December 7, 2014. (DE 87-8 at 145:13-15). He has never received any complaints or reports about the volume of the music at any Victoria's Secret event. (DE 87-8 at 145:19-25). Silva has never experienced or been told that his DJ equipment generates a sound blast. (DE 87-8 at 146:13-17). Nor has he ever experienced other problems with his DJ equipment. (DE 87-8 at 82:24-83:3). At the time of the December 2014 event, each piece of Silva's DJ set had been newly purchased by him. (DE 87-8 at 83:15-84:21). He had reviewed all the instruction manuals, and none of the equipment then required or had ever required repair or maintenance. (DE 87-8 at 81:19-82).

         It was on December 2, 2014, that Scratch engaged Silva by email to perform at the December 7, 2014 Victoria's Secret event. (DE 87-11). On December 5, 2014, Silva received a second email from Scratch that provided talking points for the event and clarified certain requirements, including a specification of the equipment Silva was to bring to the event. (DE 87-12).

         Upon arriving at the Victoria's Secret store, Silva sought out a store manager for instructions on equipment setup. (DE 87-8 at 105:14-106:10). A Victoria's Secret manager told Silva where to set up and directed him as to where and how to position his equipment. (DE 87-8 at 109:7-19 & DE 87-9). IT was the Victoria's Secret manager who ultimately decided where the speakers would be placed. (DE 87-8 at 113:19-24).

         Silva testified that he does not have much recollection of the event at the Victoria's Secret store. (DE 87-8 at 7:20-24). He recalls a raffle and remembers making announcements throughout the event, but he was not aware of any unusual occurrence. (DE 87-8 at 8:8-22). Silva did not know that Maran was injured until the summer of 2017, when Jeremy Bernstein of Scratch notified him of this lawsuit. (DE 87-7).

         D. Procedural History

         On December 15, 2016, Maran filed in New Jersey state court a lawsuit alleging negligence by various entities in the Victoria's Secret corporate family. (DE 1-1). Victoria's Secret removed the action on diversity grounds. (DE 1).

         As details of the professional and corporate relationships among Defendants emerged, Maran on several occasions amended the complaint: first to consolidate and properly identify the single Victoria's Secret entity that owns and operates the Short Hills Mall store;[4] (DE 7) second, to name Silva-in his personal capacity-as a defendant; (DE 30) and third, to add the corporate entity DJ Silva, LLC as a defendant (DE 44). Scratch and Victoria's Secret filed crossclaims (DE 16 & 21), which they later withdrew (DE 83).

         The currently operative third amended complaint (unless otherwise specified, the "complaint") now names as defendants Victoria's Secret; Scratch; DJ Silva, LLC; Silva, in his personal capacity; John Doe Entities 1-10; and John Does 13-20. (DE 44). The complaint contains four counts: (1) common-law negligence; (2) premises liability; (3) principal and agent liability; and (4) negligent hiring. All defendants are alleged to be jointly and severally liable. (DE 44).

         On May 24, 2019, summary judgment motions were filed by two pairs of defendants: Victoria's Secret and Scratch (DE 86), and Robert Silva and DJ Silva, LLC (DE 87). Maran has filed briefs in opposition. (DE 91, 92)[5] Each pair of defendants has filed a reply in support of its own motion. (DE 89 & 90).


         Because this matter involves a controversy between citizens of different states and the amount in controversy is alleged to exceed the sum of $75, 000, this Court has jurisdiction pursuant to 28 U.S.C. § 1332. New Jersey substantive law will apply. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).

         A. Standard of Review

         Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co.,223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in light most favorable to the nonmoving party. See Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett,477 U.S. 317, 322-23 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof ... ...

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