HOTTENSTEIN et al v. CITY OF SEA ISLE CITY et al
Filing
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OPINION. Signed by Judge Joseph E. Irenas on 6/27/2011. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES S. HOTTENSTEIN,
Administrator for the Estate
of Tracy Hottenstein;
CHARLES S. HOTTENSTEIN; and
ELIZABETH K. HOTTENSTEIN,
Plaintiffs,
v.
CITY OF SEA ISLE CITY;
et al.,
Defendants.
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HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 11-740 (JEI/JS)
OPINION
APPEARANCES:
THE WESCOTT LAW FIRM, P.C.
By: Lyanne B. Wescott, Esq.
239 South Camac Street
Philadelphia, Pennsylvania 19107
Counsel for Plaintiff
POWELL, BIRCHMEIER,& POWELL, P.C.
By: James R. Birchmeier, Esq.
1891 State Highway 50
P.O. Box 582
Tuckahoe, New Jersey 08250
Counsel for Defendants Sea Isle City, Harold Boyer,
Thomas McQuillen, and Vincent Haugh
FOX ROTHSCHILD, L.L.P.
By: Eric M. Wood, Esq.
1301 Atlantic Avenue, Suite 400
Atlantic City, New Jersey 08401
Counsel for Defendants Atlantic Regional Medical
Center, Atlanticare MICU Medics at Base 3, and Atlantic
City Medical Center
BLUMBURG AND LINDER, L.L.C.
By: Jay J. Blumburg, Esq.
158 Delaware Street
P.O. Box 68
1
Woodbury, New Jersey 08096
Counsel for Defendant Zaki Khebzou
CAMACHO MAURO MULHOLLAND, LLP
By: Christopher C. Mauro, Esq.
350 Fifth Avenue, Suite 5101
New York, New York 10118
Counsel for Defendants Landis Thirty Nine, Inc., Jersey
Shore Properties, LLC, Michael Roberts, Ralph Pasceri,
and Joseph Roberts
MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS
By: Stephen Ledva, Jr., Esq.
2070 Springdale Road, Suite 400
Cherry Hill, New Jersey 08003
Counsel for Defendants Bennett Enterprises, Inc., Paul
Baldini, and James J. Bennett
PRUTTING & LOMBARDI ESQS.
By: Marilou Lombardi, Esq.
701 South White Horse Pike
Audubon, New Jersey 08106
Counsel for Defendants Mark Lloyd and Patricia Lloyd
WHITE, FLEISCHNER, & FINO, L.L.P.
By: Brian Michael Thon, Esq.
2137 Route 35
Holmdel Corporate Plaza
Holmdel, New Jersey 07733
Counsel for Defendant Michael Miloscia
IRENAS, Senior District Judge:
This wrongful death / survivorship suit arises out of the
untimely and tragic death of Tracy Hottenstein.1
Presently
before the Court are Motions to Dismiss filed by Defendants Mark
and Patricia Lloyd (collectively “the Lloyds”) and Defendant
Michael Miloscia.
1
The Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28
U.S.C. § 1367.
2
I.
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.
After a series of events not directly relevant to the
instant Motion, she died.
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.)2
According to the Complaint, Tracy visited three bars over
the course of several hours on February 14, 2009.
visited the Springfield Inn.
(Compl. ¶ 39.)
She first
The Complaint does
not state whether Tracy consumed any alcohol while there, or
approximately how long she stayed.
Next Tracy visited the “LaCosta Lounge” where she and
2
The Complaint asserts that Tracy was 35 years old.
(Compl. ¶ 36.)
3
several friends were allegedly served alcoholic beverages.
The
Complaint alleges that Tracy “was served even though she was
visibly intoxicated.”
(Id. ¶ 40.)
Tracy eventually left LaCosta Lounge and went to Ocean Drive
bar, where she was allegedly served alcohol “while in a visibly
intoxicated state.”
(Compl. ¶ 43.)
Later, Tracy and a friend, Michael Miloscia, joined Mark and
Patti Lloyd at the Lloyds’ home for dinner where Tracy was
allegedly served more alcohol.
(Compl. ¶ 43.)
After dinner,
Tracy and Miloscia returned to Ocean Drive bar where Tracy was
allegedly served more alcohol.
(Compl. ¶¶ 45, 46.)
The Complaint avers what happened next:
[v]ideo shows that [Tracy] without any outdoor clothing
on, followed 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 Complaint alleges the following claims against the
moving Defendants: (1) negligence; (2) negligent infliction of
emotional distress upon Plaintiffs (Tracy’s parents); (3) a
survival claim; (4) wrongful death; and (5) a claim pursuant to
New Jersey’s Civil Rights Act, N.J.S.A. 10:6-1 et seq.
The Lloyds and Miloscia move to dismiss all claims against
them pursuant to Fed. R. Civ. P. 12(b)(6).
4
II.
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.
515 F.3d at 234.
Phillips,
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009).
5
III.
A.
The Lloyds move to dismiss the claims of negligence and
negligent infliction of emotional distress arguing that they are
barred by the Social Host Liability Act.
The Social Host Liability Act provides, “[n]o social host
shall be held liable to a person who has attained the legal age
to purchase and consume alcoholic beverages for damages suffered
as a result of the social host’s negligent provision of alcoholic
beverages to that person.”
N.J.S.A. 2A:15-5.7.
“A social host
cannot be liable to the person to whom beverages are served,
although there may be ultimate liability if that person injures a
third party.”
AAA Mid-Atlantic Ins. of New Jersey v. Prudential
Property & Cas. Ins. Co., 336 N.J. Super. 71, 78 (App. Div.
2000); see also Componile v. Maybee, 273 N.J. Super. 402, 408
(Law Div. 1994)(“A social host may only be directly liable to
minors and to third persons injured in automobile accidents.”).
Furthermore, the Social Host Liability Act contains an
exclusive remedy provision, which states, “[t]his act shall be
the exclusive civil remedy for personal injury or property damage
resulting from the negligent provision of alcoholic beverages by
a social host to a person who has attained the legal age to
purchase and consume alcoholic beverages.”
5.6(a).
6
N.J.S.A. 2A:15-
The Lloyds are alleged to have served Tracy alcohol at their
home while she was visibly intoxicated.
43.)
(See Compl. ¶¶ 21-22,
In view of the plain language of the statute which
proscribes social host liability to the person to whom alcohol is
served, this Court concludes that Plaintiffs’ common law
negligence claim arising out of the Lloyds’ alleged negligent
provision of alcohol to Tracy is barred.
Likewise, the Court
holds that Plaintiffs’ negligent infliction of emotional distress
claim is also barred because it arises out of and is related to
the Lloyd’s alleged negligent service of alcohol to Tracy.
See
N.J.S.A. 2A:15-5.6(a).
Plaintiffs argue that their claims should not be dismissed
because the Complaint alleges that the Lloyds also served alcohol
to Tracy’s friend Miloscia and “[d]iscovery will show if his
vehicle was involved in any way in the injury to [Tracy].”
Br. at 6.)
(Opp.
This bare speculation that Tracy’s injuries might
somehow be due to Miloscia’s operation of a vehicle while
intoxicated from alcohol served to him by the Lloyds is
insufficient to bring the claim within the purview of the Social
Host Liability Act.3
While this Court must accept as true all
3
N.J.S.A. 2A:15-5.6(b) provides that a social host is
liable for damages if: (1) he willfully and knowingly provides
alcohol to a person visibly intoxicated in his presence; and (2)
does so under circumstances which created an unreasonable risk of
harm and the social host failed to exercise reasonable care to
avoid the foreseeable risk; and (3) “[t]he injury arose out of an
accident caused by the negligent operation of a vehicle by the
7
allegations in the Complaint, it is not required to accept
unsupported conclusions or unwarranted inferences.
See Morse,
132 F.3d at 906.
Accordingly, Plaintiffs’ claims of negligence and negligent
infliction of emotional distress against the Lloyds will be
dismissed.
B.
Defendant Miloscia moves to dismiss the claims of negligence
and negligent infliction of emotional distress against him
arguing that Plaintiffs’ theory of liability is not supported by
any recognized legal duty.
(Br. in Support at 2, 6.)
To sustain a cause of action in negligence, a plaintiff must
prove that the defendant owed the plaintiff a duty of care, a
breach of that duty, proximate causation, and damages.
Cnty of Essex, 196 N.J. 569, 584 (2008).
Polzo v.
The determination of
whether to impose a duty is ultimately a question of fairness and
public policy.
Kuzmicz v. Ivy Hill Park Apartments, Inc., 147
N.J. 510, 515 (1997).
Such a determination involves identifying,
weighing and balancing several factors, including: (1) the
relationship of the parties, (2) the nature of the attendant
risk, (3) the opportunity and ability to exercise care, and (4)
the public interest in the proposed solution.
Brunson v.
visibly intoxicated person who was provided alcoholic beverages by
a social host.” N.J.S.A. 2A:15-5.6(b)(1)-(3).
8
Affinity Federal Credit Union, 199 N.J. 381, 403 (2009)(citing
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).
A crucial factor in determining whether a duty exists is the
foreseeability of injury to potential plaintiffs.
Carter
Lincoln-Mercury, Inc. v. Emar Group, Inc., 135 N.J. 182, 194
(1994).
“Foreseeability as a component of a duty to exercise due
care is based on the defendant’s knowledge of the risk of injury
and is susceptible to objective analysis.”
338.
J.S., 155 N.J. at
“[T]he question whether there is a ‘duty’ merely begs the
more fundamental question whether the plaintiff’s interests are
entitled to legal protection against the defendant’s conduct.”
Weinberg v. Dinger, 106 N.J. 469, 481 (1987)(cited in J.S. v.
R.T.H., 155 N.J. 330, 338 (1998)).
The Complaint alleges that Miloscia accompanied Tracy
throughout the evening to dinner and for drinks at several bars.
(See Compl. ¶¶ 43, 45.)
At 2:15 a.m., Tracy followed Miloscia
out of Ocean Drive bar and he allegedly “abandoned [Tracy] even
though [he] knew [she] was in an intoxicated state and unable to
fend for herself.”
(Compl. ¶¶ 60-61.)
Plaintiffs argue that the
“import of the allegations are that Mr. Miloscia intentionally
met up with [Tracy] for the Polar Bear Plunge activities,
provided alcohol to [Tracy] for hours on February 14, 2009, knew
she was intoxicated, took her to dinner, provided more alcohol
and then was seen leaving with her at 2:15 am.”
9
(Opp. Br. to
Miloscia Motion at 6.)
In light of all the factors, these allegations do not
support a finding that Miloscia owed a legal duty to Tracy.
Miloscia’s apparent friendship with her and their shared evening
of socializing at the Polar Bear Plunge activities is not the
kind of relationship that gives rise to a duty of care in tort
law.
While Miloscia may have provided alcoholic drinks to Tracy,
she, as an adult of legal drinking age, voluntarily chose to
consume those drinks throughout the evening.
Furthermore, the
danger that ultimately led to Tracy’s death--the allegedly dark
and dangerous public docks and her own intoxication--was neither
attributable to Miloscia nor was it reasonably foreseeable to
him.
Miloscia’s alleged awareness of Tracy’s intoxication does
not make her injuries and ultimate death foreseeable to him, nor
does it give rise to a duty on his part to ensure her safe
arrival home at the end of the evening.
As Plaintiffs’ negligent infliction of emotional distress
claim is derivative of the underlying negligence claim, and this
Court having found that Miloscia owed no legal duty to Tracy,
Plaintiffs’ negligent infliction of emotional distress claim must
also fail.
Accordingly, Miloscia’s Motion to Dismiss the
negligence and negligent infliction of emotional distress claims
will be granted.
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C.
The Lloyds and Miloscia both move to dismiss the claims
under the New Jersey Civil Rights Act (“NJCRA”) arguing that they
are not state actors.
NJCRA provides, in relevant part,
[a]ny person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or any substantive rights, privileges
or immunities secured by the Constitution or laws of
this State, or whose exercise or enjoyment of those
substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with,
by threats, intimidation or coercion by a person
acting under color of law, may bring a civil action
for damages and for injunctive or other appropriate
relief.
N.J.S.A. 10:6-2(c).
Since “[t]his district has repeatedly interpreted NJCRA
analogously to § 1983,” see Pettit v. New Jersey, No. 09-3735,
2011 U.S. Dist. LEXIS 35452 at *3 (D.N.J. Mar. 30, 2011), this
Court will look to the color of law analysis for § 1983 claims.
The Third Circuit has most recently explained,
[a]lthough there is no simple line between state and
private actors, we have explained that the principal
question at stake is whether there is such a close
nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as
that of the State itself. To answer that question, we
have outlined three broad tests generated by Supreme
Court jurisprudence to determine whether state action
exists: (1) whether the private entity has exercised
powers that are traditionally the exclusive prerogative
of the state; (2) whether the private party has acted
with the help of or in concert with state officials;
and (3) whether the state has so far insinuated itself
11
into a position of interdependence with the acting
party that it must be recognized as a joint participant
in the challenged activity.
Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)(internal citations
and quotations omitted).
As noted supra, the only factual allegation against the
Lloyds is that they served Tracy alcohol at their home while she
was in a visibly intoxicated state.
(See Compl. ¶¶ 21-22, 43.)
Miloscia is alleged to have had dinner and some drinks with
Tracy, and to have left Ocean Drive bar at the same time as her.
(Id. ¶¶ 43, 45-46, 60.)
Under no plausible reading of the
Complaint could one conclude that the Lloyds or Miloscia acted
under color of law.4
Moreover, Plaintiffs’ NJCRA claim against
these Defendants also fails because the Complaint does not plead
that Tracy’s rights were violated “by threats, intimidation, or
coercion” as clearly required by the statute.
N.J.S.A. 10:6-
2(c).
Accordingly, the Lloyds’ and Miloscia’s Motions to Dismiss
4
Plaintiffs’ bare speculation that Miloscia might have
“acted in concert with, or obtained aid from...the Sea Isle
police, the Lloyds where he was to stay, or LaCosta or Ocean Drive
bars who acted in concert with Sea Isle City in relationship to
the annual booze filled co-sponsored Polar Bear Plunge” is
insufficient to state a claim under the NJCRA. (Opp. Br. to
Miloscia Motion at 9.) Such a conclusory allegation does not
satisfy the “fact-specific” “inquiry” required by the state actor
analysis. Kach, 589 F.3d at 646.
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the NJCRA claims against them will be granted.5
IV.
For the foregoing reasons, the Lloyds’ and Miloscia’s
Motions to Dismiss the claims against them will be granted.
An
appropriate order will be issued.
Dated:
June 27, 2011
s/Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
5
Plaintiffs’ wrongful death and survival claims are
derivative. See N.J.S.A. 2A:15-3; 2A:31-1 et. seq. Having
dismissed the negligence and state constitutional claims against
both the Lloyds and Miloscia, Plaintiffs cannot maintain a
survival action or a wrongful death claim against these
Defendants. See Abramson v. Ritz-Carlton Hotel Co., LLC, 2010 WL
3943666, at *7 (D.N.J. Oct. 26, 2010). Accordingly, the Lloyds
and Miloscia’s Motions to Dismiss will be granted with respect to
the wrongful death and survival claims.
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