MARAN v. VICTORIA'S SECRET STORES, LLC et al
Filing
101
OPINION. Signed by Judge Kevin McNulty on 10/22/2019. (sm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ERIK MARAN,
Civ. No. 17-308 (KM) (MAR)
Plaintiff,
OPINION
V.
VICTORIA’S SECRET STORES, LLC;
SCRATCH EVENTS, LLC; ROBERT
SILVA; DJ SILVA, LLC; JOHN DOE
ENTITIES 1-20; JOHN DOES 11-20,
Defendants.
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 875). 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
2
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). Tn 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)1 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.
3
(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.’ (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
911112). 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 “Lm]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 911114; 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,
Otolaryngology is the study of diseases of the ear and throat.
2
From the context, the “notch” seems to refer to a particular range of frequencies
in which Maran’s hearing is impaired.
4
it is my professional opinion that the latent Ünnitus 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 histonr, to acts as Di 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 Di equipment. (DE
87-8 at 82:24—83:3). At the time of the December 2014 event, each piece of
Silva’s Di set had been newly purchased by him. (DE 87-8 at 83:15—84:21). He
Silva had created a business entity, Di Silva, LLC, as a vehicle for his
professional Di activities.
3
a
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 87-1 1). 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;
(DE 7) second, to name Silva—in his
The Victoria’s Secret defendants originally included Secret Stores, Inc.;
Victoria’s Secret Stores Brand Management, Inc.; VSS Store Operations, LLC; L
Brands, Inc.; and Limited Brands, Inc. (DE 1-1). Once Victoria’s Secret Stores, LLC
6
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) commonlaw 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) Each pair
of defendants has filed a reply in support of its own motion. (DE 89 & 90).
II.
DISCUSSION AND ANALYSIS
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).
emerged as the proper defendant, the others were dismissed by stipulation of the
parties. (DE 16).
Earlier, each pair of defendants filed a cross-claim against the other for
contribution and indemnity. (See DE 59, 65.) Those cross-claims, however, were
voluntarily dismissed. (DE 83). Here, each pair of defendants has moved for summary
judgment with respect to the plaintiffs claims, not the defunct cross-claims.
Unusually, each pair of defendants has nevertheless filed a brief in opposition to the
other’s motion for summary judgment. (DE 99. 100). These submissions in effect
purport to assert the plaintiffs rights against a codefendant, cite (now nonexistent)
claims for indemnification, and so on. Although I have reviewed these briefs, they are
of secondary importance at this stage. The Court is open to valid arguments, even
from kibitzers. My analysis, however, is channeled by the summary judgment motions
before me and the validity, or not, of the grounds cited in support of those motions.
5
7
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, ma, 477 U.S. 242, 248
(1986); Kreschollek v. S. Steuedoring 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). “[Wjith respect to an
issue on which the nonmoving party bears the burden of proof.
on the moving
party
.
.
the burden
may be discharged by ‘showing’—that is, pointing out to
the district court—that there is an of evidence to support the nonmoving
party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party’ “must do more than simply’ show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth the types of evidence on which
a nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations
.
.
.
and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorp., 912
F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Nonvest Modg., Inc., 243 F.3d
130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue of
material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
there can be ‘no
which that party will bear the burden of proof at trial,
.
8
.
.
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Stir. Cc., 972 F.2d 53, 55 n.5 (3d Cir.
1992) (quoting Celotex, 477 U.S. at 322—23).
B. Premises Liability (Count II)
Count II (Premises Liability), by its nature, applies to Victoria’s Secret,
the owner and operator of the store where the incident occurred. I discuss it
first because it sets the context of the standard of care applicable to defendant
Victoria’s Secret under Count I (Negligence).
The existence and scope of a duty of care are legal issues to be
determined by the court. Kuehn v. Pub Zone, 364 N.J. Super. 301, 310 (App.
Div. 2003) (citing Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (N.J.
1996); Kelly v. Gwinnett, 96 N.J. 538, 552 (N.J. 1984)).
New Jersey’s doctrine of premises liability has evolved from its commonlaw origins, under which a landowner owed a visitor a duty of care that entirely
depended on the visitor’s classification as a trespasser, licensee or social guest,
or business invitee. See Sussman v. Menner, 373 N.J. Super. 501, 504 (App.
Div. 2004). A business invitee, such as a retail customer or hotel guest, was
owed a “duty of reasonable care to guard against any dangerous conditions on
his or her property that the owner either knows about or should have
discovered.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (N.J. 1993).
That standard of care included a duty “to conduct a reasonable inspection to
discover latent dangerous conditions.” Id. (citations omitted).
New Jersey common law is moving toward “a broadening application of a
general tort obligation to exercise reasonable care against foreseeable harm to
others.” Butler v. Acme Markets, Inc., 89 N.J. 270, 277 (1982) (citations
omitted). A crucial element of this inquiry is foreseeability, which refers to “the
knowledge of the risk of injury to be apprehended.” Amentler v. 69 Main St.,
LLC, No. 08-0351, 2011 WL 1362594 at *4 (D.N.J. Apr. 11, 2011) (quoting
Kuehn, 364 N.J. Super at 310). A court’s task is to “consider all the
9
surrounding circumstances to determine whether it is fair and just to impose
upon the landowner a duty of reasonable care commensurate with the risk of
harm.” Sussman, 373 N.J. Super at 505 (citing Brett v. Great Am. Recreation,
Inc., 144 N.J. 479, 509 (1996)). “In assessing whether imposition of such a
duty would be fair and just, courts weigh and balance the following four
factors: (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.” Id. at 505, 575 (citing Hopkins, 132 N.J. at 439).
New Jersey courts continue to cite the traditional common law, however,
even as they move to a more general standard of due care under all the
circumstances:
“Generally, a proprietor’s duty to his invitee is one of due care
under all the circumstances.” Ordinarily, an invitee seeking to hold
a business proprietor liable in negligence “must prove, as an
element of the cause of action, that the defendant had actual or
constructive knowledge of the dangerous condition that caused the
accident.”
Prioleau u. Ky. Fried Chicken, Inc., 223 N.J. 245, 257—58 (2015) (quoting
Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003); Bozza v. Vomado,
Inc., 42 N.J. 355, 359 (1964)) (citing Rowe v. Maze! Thirty, LLC, 209 N.J. 35, 44
(2012) (noting that landowner’s duty of reasonable care to business invitee
“encompasses the duty to conduct a reasonable inspection to discover latent
dangerous conditions”); see also Arroyo v. Dialing Realty, LLC, 433 N.J. Super.
238, 243 (App. Div. 2013) (“The absence of [actual or constructive] notice is
fatal to plaintiff’s claims of premises liability,” and “[tjhe mere existence of an
alleged dangerous condition is not constructive notice of it.”). While the status
of the injured party no longer rigidly dictates a landowner’s liability, the
common law classifications remain helpful in determining the existence and
*5 (citing Clohesy v.
scope of the duty of care. Amentler, 2011 WL 1362594 at
Food Circus Supermarkets. lnc., 149 N.J. 496 (1997)).
Victoria’s Secret invited customers to the premises. Maran and Swartz
went to the Victoria’s Secret store in response to an invitation to the “Victoria’s
10
Secret Fashion Show Shopping Event,” at which Victoria’s Secret was offering
for sale various special offers, which were “Lvlalid only at event on Dec. 7,
2014.” Specifically, in connection with that event, Victoria’s Secret hired the
DJ. There is evidence that store personnel instructed Silva where to place the
speaker. That speaker, capable of emitting sound at a decibel level high enough
to damage a person’s hearing, was placed at ear level and oriented toward the
area where customers were invited to walk. Neither set of defendants seriously
contests that the store owed Maran a high duty of care, including a duty to
discover latent dangerous conditions.
At common law, Maran would be classified as a business invitee, owed a
high duty of care to guard against dangerous conditions and to inspect for
latent dangers. In this context, however, the application of the four Hop kins
factors gets us to the same place. The relationship of the parties is that Maran
was invited onto the premises by Victoria’s Secret for the store’s business
advantage. He had no familiarity with, or responsibility for, the premises or the
equipment. The nature of the risk was serious, if somewhat unusual. The
opportunity and ability to exercise care rested entirely on parties other than
Maran, who could not be expected to involve himself in the store’s safety
arrangements. The public interest is clearly in favor of imposing liability, to
encourage the highest level of care in establishments that serve the general
public.
Maran thus argues that Victoria’s Secret had notice of a dangerous
condition on its premises that bore a risk of foreseeable harm. Whether it
breached any such duty is of course a factual issue. With that background, I
proceed to analyze the primary claim of negligence.
C. Common-Law Negligence (Count I)
Under New Jersey law, the three elements essential for the existence of a
cause of action in negligence are: “(1) a duty of care owed by defendant to
plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff
proximately caused by defendant’s breach.” Endre v. Arnold, 300 N.J. Super.
136, 141 (App. Div. 1q97). The burden of proving such negligence is ordinarily
11
on the plaintiff. See Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309,
322 (App. Div. 1996).
1. Duty and Breach
Defendant Victoria’s Secret, as discussed in section 11.13., supra, owed
Maran a duty of care to maintain the store in a safe condition, to avoid creating
a condition which would render the store unsafe, and to discover and eliminate
any dangerous condition. See Nisivoccia, 175 N.J. at 563—64; Hopkins, 132 N.J.
at 444. The remaining defendants, Scratch and Silva, owed a more general
duty to act in a manner that did not create a foreseeable risk of harm to others.
See J.S. u. R.T.H., 155 N.J. 330, 337—38 (1998) (citations omitted)
(“Foreseeability of the risk of harm is the foundational element in the
determination of whether a duty exists. The [a]bility to foresee injury to a
potential plaintiff is crucial in determining whether a duty should be
imposed.”); Caner Lincoln-Mercunj, Inc., Leasing Div. v. EII’MR Gip., Inc.. 135
N.J. 182, 194—95 (1994) (“Subsumed in the concept of foreseeability are many
of the concerns we acknowledge as relevant to the imposition of a duty: the
relationship between the plaintiff and the tortfeasor, the nature of the risk, and
the abilin’ and opportunity to exercise care.”).
Maran’s direct evidence of negligence by Victoria’s Secret is that its
personnel directed Silva to place the speaker at ear level, pointed toward where
he would be standing.6 There is evidence that the proximity of the speakers,
once set up as directed, would have been apparent to the staff at the store. The
store manager and staff therefore allegedly should have been aware that a large
speaker was located very close to the ears of customers who would later be
walking by.
The direct evidence of negligence as to Scratch is virtually non-existent.
Scratch did not own, maintain, or control the store, nor was it present when
Maran does not seem to be asserting that any defendant failed to react
appropriately following the sound blast, an instantaneous event that allegedly caused
immediate damage.
6
12
Maran
was
injured. Scratch procured the DJ for the event, but both Scratch
and Silva testified that Silva was never employed by Scratch. There is no
evidence that the injurious sound blast stemmed from any action or omission
by Scratch.
The direct evidence of negligence as to Silva is that he was the owner and
operator of the sound equipment. He placed the speakers in proximity to where
Maran and other members of the public would be standing (albeit at the
direction of Victoria’s Secret). He had direct responsibility for the operation of
the equipment. At some point, the speaker emitted a loud blast, allegedly in
excess of what would be normal or expected from a sound system playing
music or announcements.
Defendants argue with some force, however, that discovery has not
uncovered evidence of precisely how this mishap occurred, or which of them
was responsible for it.
2. Res Ipsa Loquitur
On that score, Maran invokes the tort doctrine of res ipsa loquiftir The
res ipsa doctrine grants a plaintiff an inference of negligence under
circumstances where it is obvious that some negligence occurred, even if the
manner of its occurrence cannot be determined definitively:
In any case founded upon negligence, the proofs ultimately must
establish that defendant breached a duty of reasonable care, which
constituted a proximate cause of the plaintiff’s injuries. Res ipsa
loquitur, a Latin phrase meaning “the thing speaks for itself,” is a
rule that governs the availability and adequacy of evidence of
negligence in special circumstances. The rule creates an allowable
inference of the defendant’s want of due care when the following
conditions have been shown: (a) the occurrence itself ordinarily
bespeaks negligence; (b) the instrumentality [causing the injury]
was within the defendant’s exclusive control; and (c) there is no
indication in the circumstances that the injury was the result of
the plaintiffs own voluntary act or neglect.
The rule in effect creates a permissive presumption that a set of
facts furnish reasonable grounds for the inference that if due care
had been exercised by the person having control of the
13
instrumentality causing the injury, the mishap would not have
occurred. While the doctrine allows only an inference of negligence,
it can create a powerful influence in the minds of the jury. and, as
a practical matter, may very well shift the burden of persuasion.
Once res ipsa loquitur is established, the case should go to the jury
unless defendant’s countervailing proof is so strong as to admit of
no reasonable doubt as to the absence of negligence. In a case in
which res ipsa loquitur applies, a directed verdict against the
plaintiff can occur only if the defendant produces evidence which
will destroy any reasonable inference of negligence, or so
completely contradict it that reasonable men could no longer
accept it.
Brown a Racquet Club of Bdcktown. 95 N.J. 280, 288—89 (1984) (quoting
Bornstein a Metro. Bottling Co., 26 N.J. 263, 269 (1958); Ferdinand a Agric. Ins.
Co. of Watertown, N.Y., 22 N.J. 482, 493 (1956); Hansen, 8 N.J. 133, 139—40
(1951); Gould a Winoluzi; 98 N.J. Super. 554, 564 (Law Div. 1968) W. Prosser,
Law of Torts, § 40 at 233 (4th ed. 1971)) (citing 2 F. Harper and F. James, The
Law of Torts, § 19.11 at 1099—1 101 (1956)) (internal citations omitted).
It is a common feature of res ipsa cases that the injured plaintiff is the
party worst-situated to identi’ the negligent act that caused his or her injury.
The doctrine in effect shifts the burden to the party in possession of the
relevant facts. See Wollennan v. Grand Union Stores Inc., 47 N.J. 426, 430
(1966) (“[IJt would be unjust to saddle the plaintiff with the burden of isolating
the precise failure[—t]he situation being peculiarly in the defendant’s hands
see also Jedsta a Murray, 185 N.J. 175, 193 (2005) (“[Al plaintiff need
not exclude all other possible causes of an accident” to invoke the res ipsa
doctrine, provided that the circumstances establish “that it is more probable
than not that the defendant’s negligence was a proximate cause of the
mishap.”) (quoting Brown, 95 N.J. at 287).
Classically, the doctrine applies where, e.g., a patient wakes up from
surgery to find that the wrong procedure has been performed, or a pedestrian
is injured by a load of bricks falling from a rooftop construction project.
Context, of course, is all. Res ipsa might apply to a plaintiff deafened by a noise
14
at a retail event, but not to a plaintiff who suffered the same hearing loss after
detonating explosives without protective earmuffs.7
I discuss in order the three factors governing the applicability of res ipsa
loquitur (a) an occurrence that bespeaks negligence; (b) an instrumentality
within the defendant’s exclusive control; and (c) no indication that the injury
was the result of the plaintiffs voluntary act or neglect.
(a) Occurrence bespeaking negligence
When a patron enters a retail store with normal hearing and leaves
having been subjected to an ear-injuring sound blast by a loudspeaker, it is a
natural (though not inescapable) inference that negligence has occurred. A
loudspeaker in a retail store during a sales event would not normally—i.e.,
absent some negligence—abruptly emit sound that damages the hearing of a
bystander.
Maran is unable to demonstrate precisely how the sound blast occurred
or identify the particular party at fault. But it is “fairly probable” that (at least)
one defendant was responsible for creating the sound blast or causing it to
occur in proximity to Maran’s ears. The
injury may:
have flowed from one or
more causes: speaker placement, defective equipment, or negligent operation of
the equipment are obvious possibilities. For those actions, the potentially
responsible parties are Victoria’s Secret and Silva.
I do not find, however, that i-es ipsa is so broad as to cover defendant
Scratch. Scratch provided some training and instruction to the DJs with whom
it contracted, and it stated some requirements concerning the nature of the
equipment they were required to bring to events. It is of course possible that
Scratch could have played a role in the alleged injury, but its potential
negligence is not so apparent as to “speak for itself.” It is not at all clear that
there must have been negligent hiring or training for this injury to have
See generally U.S. Dep’t of Health & Human Services, National Institutes of
Health, National Institute on Deafness and Other Communication Disorders (NIDCD),
“Noise-Induced Hearing Loss,” https: / /www.nidcd.nih.gov/health/noise-induced
hearing-loss (last visited Oct. 20, 2019).
15
occurred. It is therefore not appropriate to relieve the plaintiff of the burden of
pleading and proving facts demonstrating actual negligence on the part of
Scratch. For the reasons stated above, the plaintiff has not met that burden as
to Scratch.
Maran was an attendee at a retail sales event. Maran’s injuiy—hearing
loss from a loudspeaker that was placed near members of the public and
capable of producing sound at a dangerous level, in circumstances where such
high volume is not to be expected—is one that ordinarily bespeaks negligence.
See Brown, 95 N.J. at 288—89. As to defendants Victoria’s Secret and Silva,
Maran has satisfied this, the first element of the i-es ipsa loquitur doctrine.
(b) Instrumentality within Defendants’ control and
(c) Maran’s culpability
The second and third factors in the i-es ipsa test also weigh in favor the
doctrine’s application here.
As for factor (b), the instrumentality that caused Maran’s injury—the
loudspeaker and its associated electronics—was entirely within the control of
defendants Victoria’s Secret and Silva at all relevant times. (Again, it is not
alleged that the sound system itself was ever in Scratch’s custody or control.)
No party seriously contests this.
Silva, of course, furnished and operated the equipment. Silva testified
that a Victoria’s Secret manager dictated both the placement of the speaker
and the direction it should face. Silva testified that he purchases his equipment
new—never second-hand—and always familiarizes himself with the instruction
manuals. According to him, the equipment was in working order and had never
required repair work. Thus there may be plenty of room for dispute among
Defendants as to their relative responsibility for operation, maintenance, or
placement of the equipment. There is no contention, however, that any of these
equipment-related responsibilities belonged to others, or to Maran.
As for factor (c), plaintiff’s culpability, the record does not suggest that
Maran ever acted in some inappropriate or unexpected manner in relation to
the loudspeaker. Several deponents testified that he simply passed by the
16
speaker in the aisle, an area where members of the public were expected to be.
He did not purposely expose himself to excessive sound levels and indeed
seems to have spent no more than a moment near the speaker. Maran did not,
like some overenthusiastic rock-concertgoer, trespass or engage in risky
behavior that brought him in proximity to the speaker. Defendants, not Maran,
controlled the equipment, its setup, and its operation. Thus, the record does
not suggest any negligence or culpability on Maran’s part.
In short, in the context of an ordinary retail sales event, a loudspeaker
does not ordinarily cause hearing loss without some negligence by those
responsible for the equipment’s placement and operation. Thus, as to Victoria’s
Secret and Silva, Maran is entitled to a res ipsa-based inference. I do not say,
by the way, that plaintiff would necessarily prevail with the aid of res zjisa
loquitur or that he could not prevail without it. But its availability demonstrates
that summary judgment for Defendants would be inappropriate.
3. Causation and Damages
Defendants refer to Maran’s “alleged” injuries, perhaps as a means of
reserving their position as to causation and damages. That issue, however,
remains one of fact.
Maran has, of course, testified that he was exposed to a loud blast of
sound at the Victoria’s Secret event. He has introduced the testimony of two
medical experts: an otolaryngologist whom he initially consulted, and an
audiological specialist to whom he was later referred. Dr. Fieldman, the
otolaryngologist, opined that Maran’s injunr is “consistent with a [sound]
blast.” Dr. Bauman, the audiologist, opined that the incident at the store
caused Maran’s tinnitus and hyperacusis. While there may be some basis for
cross-examination of those conclusions at trial, Defendants have offered no
contradictory medical evidence. No party seems to dispute the medical evidence
of hearing loss, and, in the context of Maran’s factual testimony, it raises a
triable issue as to causation and damages.
17
In sum, Defendants’ motion for summary judgment on Count I
(Negligence) is granted as to Scratch but denied as to Victoria’s Secret and
Silva.
D. Principal and Agent Liability (Count HI)
Count III alleges that Maran is entitled to recover damages from the
principal on whose behalf an agent was acting.8 Maran alleges that if “Victoria’s
Secret engaged Scratch Events, LLC, or any other John Doe entity as its agent
to install and operate the sound system that caused injury to plaintiff, both the
principal and agent are liable for the damages to plaintiff.” (DE 44 ¶1 41).
1. Scratch and Silva as independent contractors
Under New Jersey law, to succeed in establishing a liability based on
respondeat superior, a “plaintiff must prove (1) that a master-servant
relationship existed and (2) that the tortious act of the servant occurred within
the scope of that employment.” Carter v. Reynolds, 175 N.J. 402, 409 (N.J.
2003).
To determine whether a master-servant relationship exists, New Jersey
relies on the Restatement (Second) of Agency. See Wright v. State, 169 N.J. 422,
436 (2001). The Restatement provides a non-exhaustive list of factors with
which courts evaluate whether a tortfeasor was the agent of another:
(1) A servant is a person employed to perform services in the affairs
of another and who with respect to the physical conduct in the
performance of the services is subject to the other’s control or right
to control.
(2) In determining whether one acting for another is a servant or an
independent contractor, the following matters of facts, among
others, are considered:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
A principal’s liability for actions of an agent, although pled as a separate count,
is not a cause of action per se. It is discussed herein as a theory of liability for
negligence.
8
18
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
(1) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business
of the employer;
(i) whether or not the parties believe they are creating the
relation of master and servant; and
U)
whether the principal is or is not in business.
Restatement (Second) of Agency
§
220 (1958).
As to the issue of whether the injury occurred within the scope of the
agent’s employment, the New Jersey Supreme Court has likewise adopted the
Restatement (Second) of Agency’s framework. Carter, 175 N.J. at 411. The
Restatement provides a four-part test:
Conduct of a servant is within the scope of employment if, but only
if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits;
(c) it is actuated, at least in part, by a purpose to serve the
master, and
(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the master.
19
Restatement (Second) of Agency
§
228. Conversely, “[c}onduct of a servant is
not within the scope of employment if it is different in kind from that
authorized, far beyond the authorized time or space limits, or too little actuated
by a purpose to serve the master.” Id.
Under the test promulgated by the Restatement (Second) and adopted by
the New Jersey Supreme Court, there is no doubt that Victoria’s Secret did not
“employ” Scratch or Silva.° There exists no master-servant relationship and
accordingly, liability under respondeat superior will not attach.
Victoria’s Secret is a purveyor of women’s wear and beauty products. Its
business is not the DJ business. Scratch and Silva, on the other hand, engage
in the DJ business full-time. Scratch does not provide DJs exclusively for
Victoria’s Secret. Nor does Silva; in his fifteen-year DJ career, Silva has DJed
for Victoria’s Secret just three times. In the transaction that ultimately gave
rise to the December 2014 event, Scratch acted as a promoter, procuring DJs
for Victoria’s Secret on a one-time basis. Silva chose to accept a one-time gig
offered to him by Scratch. Victoria’s Secret does not pay an ongoing salary or
benefits to Scratch and Silva; it pays DJs by the appearance, which, in this
case, took place for a few hours on one evening. The informal professional
relationship and disparate business sectors indicate that Scratch and Silva
acted in the capacity of an independent contractor.’°
“Silva” here refers to both the corporate entity DJ Silva, LLC and Robert Silva in
his personal capacity. I treat them together because Silva’s formation of the LLC would
not exculpate him from liability for a negligent tort that he personally committed, even
in the course of the LLC’s business. See Kenney v. M2 Worldwide, LLC, No. 12-1059,
2013 WL3508564 (D.N.J. July 11,2013) (citing Saltiel a GSI Consultants, Inc., 170
N.J. 297, 303 (2002) (“lThe essence of the participation theon’ is that a corporate
officer can be held personally liable for a tort committed by the corporation ‘hen he or
she is sufficiently involved in the commission of the tort.”)).
Silva states that a Victoria’s Secret manager told him where to place his sound
equipment. This might be seen as a plaintiff-favorable fact in relation to the “control”
element of the master-servant-relationship test. In the context of the other factors,
however, this is insufficient to create an issue of fact as to respondeat superior. That a
staff member told a for-hire individual where to place the tools of his trade does not
convert that individual into an employee/servant. See Restatement (Second) of Agency
10
20
The evidence in the record demonstrates that neither Scratch nor Silva
was a Victoria’s Secret employee or servant, for whose acts Victoria’s Secret
would be liable under respondeat superior.”
2. Independent Contractor Exception
An issue remains as to whether Victoria’s Secret could be vicariously
liable for the acts of independent contractors Scratch and Silva
In general, “when a person engages an independent contractor to do
work that is not itself a nuisance, he is not vicariously liable for the negligent
acts of the contractor in the performance of the contract.” Puckrein v. ATI
Transp., Inc., 186 N.J. 563, 574 (2006). To that general rule of non-liability,
however, there are two relevant exceptions: (1) where the principal retains
control of the manner and means of doing the work subject to the contract; and
(2) where the principal engages an incompetent contractor. See Majestic Realty
Assocs. v. Toti Contracting Co., 30 N.J. 425, 431
(1959).12
Under the control exception, liability is imputed because where a
principal exerts an atypical level of control over the means and manner by
which an independent contractor performs a service, the principal becomes
more than a mere supervisor and takes on responsibility for those acts. See Id.
at 431. Under control test, “the [principal’sJ reservation of control over the
equipment to be used, the manner or method of doing the work, or direction of
the employees of the independent contractor may permit vicarious liability.”
Mavrjk-jdis v. PeWllo, 153 N.J. 117, 135 (1998). Where there is control, the
§ 220 & 228 (describing factors that determine master-servant relation and scope of
employment).
It also appears, by the way, that Silva is an independent contractor in relation
to Scratch. Their relationship is governed by a Talent Services Agreement which
defines Silva as an independent contractor. Silva was hired by the job, did not get paid
a salary or benefits, derived 60% of his income from non-Scratch events, paid his own
expenses, hired and paid his own assistant as necessary, carried his owm liability
insurance, and owned his own equipment.
1
A third exception, where the activity constitutes a nuisance per se, is not
invoiced here. Id.
12
21
party who hired the contractor is liable for the contractor’s negligence. This
vicarious-liability doctrine is to be distinguished from the direct liability of
Victoria’s Secret for negligent placement of the speaker, see supra; under this
exception, the person may be liable even if the control exercised and the way it
is exercised are not causally related to the hazard that led to the
Bergquist v. Pentermrni, 46 N.J. Super. 74, 85 (App. Div. 1957).
injury.
For the reasons discussed in section II.D.l., supra, Victoria’s Secret did
not retain general control over independent contractors Scratch and Silva.
Victoria’s Secret sells women’s wear and beauty products. On occasion its
stores host events that call for the services of a DJ. When that requirement
arose in December 2014 in Short Hills, the store contacted Scratch, which
acted as a kind of promoter, and in turn secured the services of Silva.
Throughout, each entity “stayed in its lane”: Victoria’s Secret hosted the event
at its store; Scratch notified Silva of the particulars of the event; and Silva
DJed the event. That a Victoria’s Secret manager told the DJ where to place the
speakers might, as noted above, contribute to a direct finding of fault-based
liability; it is not sufficient, however, to constitute such unusual “control” over
the equipment, manner, and method of the work that Victoria’s Secret could be
found vicariously liable, irrespective of fault or causation, for the negligence of
Scratch or Silva.
The second exception, for hiring of an incompetent contractor, also does
not apply. See Puckrein, 186 N.J. 563, 576 (2006) (citing Mavdkidis, 153 N.J.
at 136—37) (“[Tjo prevail against the principal for hiring an incompetent
contractor, a plaintiff must show that the contractor was, in fact, incompetent
or unskilled to perform the job for which he/she was hired, that the harm that
resulted arose out of that incompetence, and that the principal knew or should
have known of the incompetence.”); Mavñkidis, 153 N.J. 117, 136 (1998)
(alterations in original) (citations omitted) (“Under the second Majestic
exception, a principal may be held liable for injury caused by its independent
contractor where the principal hires an incompetent contractor.
22
.
rTjhe
gravamen of th[is} exception is selection of a contractor who is incompetent.
The selection of a competent contractor who negligently causes injury, does not
render a [principalj liable. No presumption as to the negligence of an employer
in hiring an independent contractor arises from the fact that, after being hired,
the contractor is negligent in the performance of his duties and injures the
person or property of another.”).
The record contains no serious complaints or evidence of incompetence,
whether on the part of Scratch or Silva. Maran relies here on just two negative
reports in Silva’s prior work history for Scratch: (1) On one occasion, Silva “was
not there in enough time for them to give him a proper run of show so they did
the first part on an ipod,” and (2) at another time, Silva “[f]orgot power cord and
then had additional technical difficulties during the wedding.” (DE 91-4 at 29).
These
two
prior incidents were minor, and would not permit a reasonable jury
to find incompetence. They are insufficient to support the incompetentcontractor exception to the general rule of non-liability for the acts of an
independent contractor.
Summary judgment is therefore granted for defendants on Count III
(Principal-agent liability).
E. Negligent Hiring (Count IV)
An employer may be liable to a third party whose injury was proximately
caused by the employer’s negligent hiring or retention of an employee who is
unfit for the job. See Di Cosala v. Kay, 91 N.J. 159, 174 (1982). The cause of
action for negligent hiring has two elements: (1) that the employer knew or had
reason to know of the “particular unfitness, incompetence or dangerous
attributes of the employee and could reasonably have foreseen that such
qualities created a risk of harm to other persons,” and (2) that through the
employer’s negligence, the employee’s “incompetence, unfitness, or dangerous
characteristics proximately caused the injury.” Id. at 516. To be foreseeable,
the injury must be within a general “zone of risk” created by the employee’s
conduct. Id. at 517.
23
New Jersey courts recognize the tort of negligent hiring “where the
employe[rj either knew or should have known that the employee was violent or
aggressive, or that the employee might engage in injurious conduct toward
third persons.” Davis v. Devereux Found., 209 N.J. 269, 292 (N.J. 2012)
(quoting Di Cosa?a, 91 N.J. at 173). The tort of negligent hiring has two
fundamental requirements:
The first involves the knowledge of the employer and foreseeability
of harm to third persons. An employer will only be held responsible
for the torts of its employees beyond the scope of the employment
where it knew or had reason to know of the particular unfitness,
incompetence or dangerous attributes of the employee and could
reasonably have foreseen that such qualities created a risk of harm
to other persons. The second required showing is that, through the
negligence of the employer in hiring the employee, the latter’s
incompetence, unfitness or dangerous characteristics proximately
caused the injury.
Di Cosala, 91 N.J. at 73 (internal citations omitted). Finally, “employee conduct
which may form the basis of the cause of action need not be within the scope of
employment. The wrong here redressed is negligence of the employer in the
hiring or retention of employees whose qualities unreasonably expose the
public to a risk of harm.” Id. at 174.
Maran alleges that Victoria’s Secret was negligent in hiring Scratch. It is
less clear that he is alleging that Victoria’s Secret somehow negligently hired
Silva or DJ Silva, LLC.
Maran has not produced evidence to support a negligent-hiring
contention. Scratch and Silva were not employees. There is no evidence that
Scratch or Silva had any dangerous propensity of which Victoria’s Secret
should have known. See pages 22—23, supra. Accordingly, Defendants’ motions
for summary judgment dismissing Count IV are GRANTED.
III.
CONCLUSION
To summarize, the motion for summary judgment of Scratch is
GRANTED in its entirety; Count II (Premises Liability) is DISMISSED as
against Silva in his personal capacity and DJ Silva, LLC; Count III (Principal
24
and Agent Liability) is DISMISSED as against all parties; and Count IV
(Negligent Hiring) is DISMISSED as against all parties. The summary judgment
motions are otherwise DENIED.
What remain are the following:
Count I (Negligence) as against Victoria’s Secret, Silva in his personal
capacity, and DJ Silva, LLC;
Count II (Premises Liability) as against Victoria’s Secret.
A separate order will issue.
Dated: October 22, 2019
HO/flMCL
United States District Jw
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?