United States District Court, D. New Jersey
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:
Victoria's Secret Stores, LLC ("Victoria's
Secret") and Scratch Events, LLC ("Scratch")
(DE 86); and
Robert Silva and DJ Silva, LLC (together referred to as
"Silva" unless otherwise specified) (DE 87).
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
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
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).
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).
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).
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
(DE 87-5 at 3).
pain had not abated a month after the incident, and so on
January 12, 2015 Maran began seeing Dr. Robert Fieldman, an
otolaryngologist. (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).
Fieldman determined that Maran has "a notch" in his
hearing that is consistent with loss of hearing due to a
blast. (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
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
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).
Scratch Events and Silva
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,
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).
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).
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).
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).
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
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
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).
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; (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).
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).
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) Each pair of defendants has
filed a reply in support of its own motion. (DE 89 & 90).
DISCUSSION AND ANALYSIS
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,
Standard of Review
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 ... ...