BONANNI v. THOMPSON et al
MEMORANDUM OPINION AND ORDER, granting in part and denying in part 38 Motion for Summary Judgment. Signed by Magistrate Judge Joel Schneider on 11/24/15. (js)
[Doc. No. 38]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 14-4745 ((JS)
OTIS R. THOMPSON, et al.,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion for summary
judgment filed by The Morey Organization (“TMO”). [Doc. No. 38].
The Court received plaintiff’s opposition [Doc. No. 41], TMO’s
reply [Doc. No. 43], and the partial opposition of defendant
Otis R. Thompson (“Thompson”) [Doc. No. 42]. 1 The Court recently
motion is GRANTED in part and DENIED in part.
This lawsuit arises out of an incident that occurred on
July 12, 2012, while plaintiff was a patron at TMO’s amusement
pier in Wildwood, New Jersey. Plaintiff alleges he was assaulted
by TMO’s game operator, Thompson.
Thompson only opposes TMO’s motion as to respondeat superior
The relevant background facts, in the light most favorable
to the plaintiff, are not especially complicated. On the day in
question Thompson operated the “Blockbuster” or “bean bag” game.
Thompson refused. Plaintiff then threatened to come into the
booth. Due to plaintiff’s age, height and weight, Thompson felt
threatened and did not want to be trapped in his booth. He also
wanted to detain plaintiff so that plaintiff would not leave
before security escorted him off the pier. Thompson then cleared
off his counter, took his apron off, picked up a broom to deter
against it. These include: (1) the claim that TMO is liable
under respondent superior for Thompson’s actions; (2) the claim
that TMO negligently trained and supervised Thompson; and (3)
plaintiff’s punitive damage claim against TMO.
Respondeat Superior Claim
TMO argues it is not liable under respondent superior for
Thompson’s actions. TMO also argues Thompson acted outside the
scope of his employment when he pushed against plaintiff and
that Thompson’s conduct was not foreseeable. In addition, TMO
trained not to do so. TMO argues Thompson should have stayed in
his booth and called security.
As even TMO recognizes, even if Thompson violated TMO’s
rules and training this does not in and of itself result in a
finding that Thompson acted outside the scope of his employment.
Rather, the “scope of employment” test requires a fact-specific
Court relied upon the Restatement (Second) of Agency §228(1),
in holding that in order for an employee’s actions to be within
the scope of his or her employment, a plaintiff must show the
is of the kind the employee is employed to perform;
the conduct occurred substantially within the
authorized time and space limits;
the conduct was actuated, at least in part, by a
purpose to serve the master; and
if force is intentionally used by the employee against
another, the use of force is not unexpectable by the
Id. at 489-90. The parties agree factor (b) is satisfied so only
factors (a), (b) and (d) will be examined. As to all of these
factors the Court finds that fact questions exist which must be
decided by a jury.
As to factor (a), is the conduct of the kind Thompson was
employed to perform, TMO argues Thompson had no responsibility
for security. Nevertheless, a jury may find, inter alia, that
patrons at the amusement pier and that this is part of every
employee’s duty. The jury may also find that it was part of
Thompson’s job to make the area surrounding his booth safe. See
TMO’s Mission Statement (“Guest safety is a core integrity issue
for us.”). Doc. No. 38-2 (p. 11). In addition, a jury could find
that by attempting to delay plaintiff until security arrived,
Thompson was attempting to foster the pier’s safe and family
atmosphere by keeping plaintiff from bothering patrons at the
pier. As to factor (c), TMO argues Thompson’s conduct did not
friendly and courteous. However, again, a fact question exists
because a jury could find that Thompson was acting to protect
TMO’s cash and other patrons from plaintiff’s alleged obnoxious
conduct. In this regard it is significant that plaintiff does
not have to show that Thompson’s sole purpose was to serve TMO.
Plaintiff only as to show that Thompson’s actions were motivated
“in part” to serve TMO. Devereux, 209 N.J. at 490.
foreseeable or “not-expectable”, this is also a fact question.
employee and there were no prior assaults by game operators at
notion that simply because an incident of this type did not
happen before that it was not foreseeable. A jury should decide
whether someone in Thompson’s circumstances would act as he did
incident occurred. Plaintiff was approximately 67. Faced with
defense. A jury should also decide whether it was foreseeable
cool.” In addition, a jury should take into account that there
was no working phone in Thompson’s booth, he did not have a
walkie-talkie, and he did not want to leave the area of the
actions were not so outrageous or exceptional that the Court
should take the foreseeability issue away from the jury.
The main case TMO relies on, Devereux, supra, is plainly
distinguishable. In that case a counselor poured boiling water
on a patient when the counselor went to get the patient out of
bed. The Court held that no rational factfinder cold find the
counselor’s actions were within the scope of her employment and,
therefore, the summary judgment entered in favor of the employer
was proper. Thompson’s conduct in this case is not nearly as
Instead, this case is more analogous to the cases plaintiff
and Thompson cite. In Gibson v. Kennedy, 23 N.J. 150 (1957), the
plaintiff and defendant were both employed by the Pennsylvania
although there was a dispute as to how it started. The Court
held that even though the defendant struck the plaintiff, a fact
question existed as to whether the defendant was acting within
the scope of his employment. Similarly, in Schisano v. Brickseal
unauthorized persons did not park in his employer’s lot. While
the defendant’s employee was attempting to convince plaintiff’s
decedent to move his car, the employee punched the decedent. The
Court held it was a jury question if the employee was acting
within the course and scope of his employment.
Negligent Training and Supervision Claim
plaintiff’s negligent training and supervision claim, TMO makes
two arguments. First, it argues plaintiff did not support his
claim with expert testimony. Second, it argues there is no fact
question that it provided adequate training and supervision.
As to TMO’s first argument, the Court finds that plaintiff
does not need an expert. The Court disagrees with TMO’s argument
that “[b]ecause the manner in which amusement park employees
should be trained is sufficiently complex that it is beyond the
ken of the average juror[.]” Brief at 21. The Court finds that a
appropriately trained Thompson as to how to act in response to
an unruly customer. An expert is necessary to testify about a
particular subject area where the average person could not be
expected to have sufficient knowledge or experience. Grobelny v.
2186417 at *1 (D.N.J. May 23, 2008). An expert is not necessary
if the subject matter at issue is within the range of ordinary
experience and comprehension of non-professional persons, and is
within the ken of a layperson. Scott v. Calpin, 527 Fed. Appx.
123, 126 n. 4 (3rd Cir. 2013). “When the normal experiences and
qualifications of laymen jurors are sufficient for them to draw
expert witness is not necessary and is improper.” Lasorsa v.
Showboat: The Mardi Gras Casino, C.A. No. 07-4321 (JBS/JS), 2009
WL 2929234, at *5 (D.N.J. Sept. 9, 2009)(citation and quotation
omitted). It is the Court’s judgment that average jurors are
qualified to determine if TMO’s training of a game operator at
its amusement pier was appropriate. This situation is plainly
upon. This case is also distinguishable from Brijall v. Harrah’s
Atlantic City, 905 F. Supp. 2d 617, 621 (D.N.J. 2012),
involved an evaluation of the actions of a professional security
As to TMO’s second argument, the Court finds that a fact
injuries. The parties do not disagree on the applicable legal
plaintiff must present evidence from which a reasonable jury
could conclude that an employer should have reasonably foreseen
that its employee "would intentionally or negligently injure a
customer during the performance of his duties, and that such
injury could have been prevented through proper supervision."
Worrall v. City of Atlantic City, C.A. NO. 11-3750 (RBK/JS),
2014 WL 980575, at *3 (D.N.J. March 13, 2014). To sustain a
claim of negligent training, plaintiff must show: (1) TMO owed a
duty of care to the plaintiff, (2) TMO breached its duty of
care, (3) TMO’s breach was the proximate cause of plaintiff’s
injury, and (4) TMO’s breach caused actual damages to plaintiff.
Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721 (D.N.J.
2010). While it may be true that TMO provided instruction and
training to Thompson, a jury could find it was not sufficient to
address the situation plaintiff faced. For example, while TMO’s
paperwork refers to children, there is nothing about how to deal
with troublesome teenagers or adolescents. Also, what to do if a
worker is threatened by a patron. Moreover, as plaintiff argues,
Thompson testified TMO provided no training about how to treat
or interact with (1) argumentative guests, (2) guests who did
Exhibit A, Thompson Deposition Transcript at 53:13-25; 54:1-14.
This testimony raises a fact question as to the adequacy of
TMO’s training and supervision. TMO argues it is “undisputed
that Thompson’s conduct was directly contrary to the training
and instructions that he had been given[.]” Brief at 4. The
training and instructions Thompson received adequately addressed
the situation Thompson faced.
Punitive Damage Claim
As to TMO’s last argument, the Court finds that summary
("PDA"), in pertinent part, provides:
Punitive damages may be awarded to the plaintiff
only if the plaintiff proves, by clear and
convincing evidence, that the harm suffered was
the result of the defendant's acts or omissions,
and such acts or omissions were actuated by
actual malice or accompanied by a wanton and
willful disregard of persons who foreseeably
might be harmed by those acts or omissions. This
burden of proof may not be satisfied by proof
of any degree of negligence including gross
See N.J.S.A. 2A: 15-5.12(a). The PDA defines "actual malice" as
"an intentional wrongdoing in the sense of an evil-minded act.”
N.J.S.A. 2A:15-5.10. "Wanton and willful disregard" is defined
as "a deliberate act or omission with knowledge of a high degree
of probability of harm to another and reckless indifference to
the consequences of such act or omission." Id.
demonstrate that a defendant's conduct was wantonly reckless or
malicious. Pavlova v. Mint
Corp., 375 N.J. Super.
397, 404 (App. Div. 2005). The defendant must have engaged in a
"deliberate act or omission with knowledge of a high degree of
consequences." Berg v. Reaction Motors Div., 37 N.J. 396, 414
(1962). The defendant must have known or had reason to know of
reasonable person the highly dangerous character of his or her
conduct. Pavlova, 375 N.J.
Super. at 404; McLaughlin v. Rova
Farms, Inc., 56 N.J. 288, 306 (1970).
The PDA provides a non-exclusive list of factors that are
serious harm would arise from the defendant's conduct; (2) the
defendant's awareness or reckless disregard of the likelihood
that the serious harm at issue would arise from the defendant's
conduct; (3) the conduct of the defendant upon learning that its
initial conduct would likely cause harm; and (4) the duration of
the conduct or any concealment of it by the defendant. N.J.S.A.
plaintiff, the record simply does not demonstrate that TMO’s
belligerent than they were in the past. However, this general
statement did not put TMO on notice that plaintiff’s incident
statement did not give rise to the “very real likelihood of the
occurred.” Pavlova, 375 N.J. Super. at 405. After all, plaintiff
does not contest that there were no similar incidents at the
pier the last ten years and Thompson was an exemplary employee.
management had knowledge of any problems at the pier. 2
Accordingly, for all the foregoing reasons, it is hereby
Organization’s Motion for Summary Judgment is GRANTED in part
and DENIED in part; and it is further
ORDERED that TMO’s motion as to plaintiff’s punitive damage
claim is GRANTED; and it is further
ORDERED that the remainder of TMO’s motion is DENIED; and
it is further
Thompson on plaintiff’s punitive damage claim.
United States Magistrate Judge
TMO’s summary judgment motion is inexorably connected to
Thompson’s liability. Even though Thompson did not move for
summary judgment on plaintiff’s punitive damage claim, judgment
on the claim will be awarded in favor of Thompson. There is no
evidence in the record that Thompson intentionally or recklessly
injured plaintiff. The record does not show circumstances of
aggravation and outrage beyond the simple commission of an
alleged tort to support a finding of punitive damages. Pavlova,
375 N.J. Super. at 404-05. The Court has the authority to sua
sponte grant summary judgment. Powell v. Beard, 288 Fed. App’x.
7, at 8-9 (3d Cir. 2008); Forrest v. Corzine, C.A. No. 09-1555
(RBK/JS), 2015 WL 6175360, at *9 (D.N.J. Oct. 20, 2015).
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