OKANE v. TROPICANA ENTERTAINMENT, INC. et al
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 1/3/2013. 1/4/2013 ENTERED AND COPIES MAILED TO PRO SE AND UNREP.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARGARET OKANE
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:
:
:
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v.
TROPICANA ENTERTAINMENT, INC.
CIVIL ACTION
NO. 12-6707
MEMORANDUM
SÁNCHEZ, J.
JANUARY 3, 2013
In her amended complaint, plaintiff Margaret Okane asserts
claims of negligent and intentional infliction of emotional
distress against Tropicana Entertainment, Inc. (“Tropicana”),
which owns and operates the Tropicana Casino in Atlantic City,
New Jersey, based on Tropicana’s refusal to remove a security
record from its files.
For the following reasons, the Court will
dismiss the amended complaint pursuant to 28 U.S.C. §
1915(e)(2)(B).
I.
FACTS1
On February 16, 1999, while plaintiff was at the Tropicana
Casino in Atlantic City, New Jersey, she removed two gaming chips
worth a total of $5.00 from a roulette table, apparently as a
result of her paranoid schizophrenia.
Plaintiff was ejected from
the casino, but no criminal charges were filed.
In accordance
with its normal course of operations, Tropicana’s Security
Department made an “ejection report” for Tropicana’s files.
(Am.
Compl. Ex. 1.)
1
The following facts are taken from the amended complaint
and attachments to the amended complaint.
1
In a December 12, 2003 letter, Tropicana informed plaintiff
that it was restoring her gaming privileges at the casino.
The
letter also informed plaintiff that the ejection report was part
of Tropicana’s “very extensive security record system” and that
Tropicana would not destroy the record “at the request of a
patron.”
(Am. Compl. Ex. 1.)
Plaintiff alleges that, since
receiving that letter, she has suffered from considerable
emotional distress.
She further alleges that the record of the
1999 incident remains in Tropicana’s files despite her efforts
“through the course of many years and many pleadings” to remove
it.
(Am. Compl. ¶ 7.)
In August or September of 2012, plaintiff
made a “final plea” to Tropicana through an intermediary, but
Tropicana again refused to remove the record.
(Id. ¶ 8.)
Plaintiff apparently believes that the record should be
removed because the incident occurred over 13 years ago, and
because it resulted from her schizophrenia, which is now under
control.
She contends that the “ongoing existence of [the]
security record at the Tropicana Casino” is causing her “severe
emotional distress,” and alleges that she is suffering from
diverticulitis in connection with that distress.
9.)
(Am. Compl. ¶
She asserts claims for negligent and intentional infliction
of emotional distress, and seeks $1 million in damages.
2
II.
STANDARD OF REVIEW2
As plaintiff has been granted leave to proceed in forma
pauperis, 28 U.S.C. § 1915(e)(2)(B) applies.
That provision
requires the Court to dismiss the amended complaint if it is
frivolous or malicious, fails to state a claim, or seeks monetary
relief from a defendant who is immune.
Whether an amended
complaint fails to state a claim under § 1915(e) is governed by
the same standard applicable to motions to dismiss under Federal
Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the pleading contains “sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotations omitted).
Additionally, the Court may consider
documents attached to or submitted with the amended complaint.
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
Furthermore, if an affirmative defense is obvious from the face of
the amended complaint, and if no development of the record is
necessary, the Court may dismiss any facially invalid claims sua
sponte.
See Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002).
2
The Court has jurisdiction pursuant to 28 U.S.C. § 1332,
because the allegations of the complaint establish that diversity
of citizenship exists among the parties and that the amount in
controversy exceeds $75,000 exclusive of interest and costs.
3
III. DISCUSSION3
A.
Plaintiff’s Claims Are Time-Barred
“Under Pennsylvania law, the statute of limitations for
both negligent and intentional infliction of emotional distress
is two years from the date of accrual.”
Vaughan v. Pathmark
Stores, Inc., Civ. A. No. 99-0018, 1999 WL 299576, at *3 (E.D.
Pa. May 10, 1999); see also 42 Pa. Cons. Stat. § 5524(2) & (7).
New Jersey also imposes a two-year statute of limitations on
claims for negligent and intentional infliction of emotional
distress.
Campanello v. Port Auth. of N.Y. & N.J., 590 F.
Supp. 2d 694, 699 (D.N.J. 2008); see also N.J. Stat. Ann. §
2A:14-2.
In general, a statute of limitations begins to run
when the plaintiff “is aware, or reasonably should be aware, of
facts indicating that she has been injured through the fault of
another.”
Baird v. Am. Med. Optics, 713 A.2d 1019, 1026 (N.J.
1998); see also Pocono Int’l Raceway, Inc. v. Pocono Produce,
Inc., 468 A.2d 468, 471 (Pa. 1983) (explaining that “the
statute of limitations begins to run as soon as the right to
institute and maintain a suit arises” because “a party
asserting a cause of action is under a duty to use all
reasonable diligence to be properly informed of the facts and
circumstances upon which a potential right of recovery is
3
Plaintiff is a citizen of Pennsylvania, but her injury is
based on a record of an event that occurred in New Jersey, which
is apparently maintained in New Jersey. As plaintiff’s claims
fail under both Pennsylvania and New Jersey law, the Court need
not determine which State’s law applies.
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based”).
It is apparent from plaintiff’s amended complaint and the
attachments thereto that, in a December 12, 2003 letter,
Tropicana informed plaintiff that it would not remove the
ejection report from its security files at her request.
Additionally, plaintiff alleges that she has been suffering
from inordinate emotional distress “since that time,” and that
she and the defendant have been communicating about the
situation for “many years.”
(Am. Compl. ¶ 7; see also id. ¶ 14
(“Defendant has had sufficient notice, for many years now, of
either [its] intentional or reckless conduct . . . .”).)
Accordingly, it is evident that plaintiff was aware of the
facts giving rise to her claims in December 2003.
However, she
did not file suit until approximately nine years later, well
beyond the statute of limitations.
time-barred.4
Her claims are therefore
In any event, plaintiff’s claims fail on their
merits, as discussed below.
B.
Negligent Infliction of Emotional Distress (“NIED”)
In Pennsylvania, “the cause of action for negligent
infliction of emotional distress is restricted to four factual
scenarios: (1) situations where the defendant had a contractual
4
That the security record continues to exist, and that the
defendants have consistently refused to remove it, do not
constitute continuing violations that would render plaintiff’s
claims timely. Cf. Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d
Cir. 2001) (continued existence of municipal liens and township’s
refusal to remove liens did not amount to continuing violations);
Adamski v. Allstate Ins. Co., 738 A.2d 1033, 1041-42 (Pa. Super.
Ct. 1999) (continuing violation theory does not apply when
insurer repeatedly refuses to defend or indemnify plaintiffs).
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or fiduciary duty toward the plaintiff; (2) the plaintiff was
subjected to a physical impact; (3) the plaintiff was in a zone
of danger, thereby reasonably experiencing a fear of impending
physical injury; or (4) the plaintiff observed a tortious
injury to a close relative.”
Toney v. Chester Cnty. Hosp., 961
A.2d 192, 197-98 (Pa. Super. Ct. 2008), order aff’d by equally
divided court, 36 A.3d 83 (Pa. 2011).
Recently, the Superior
Court indicated that the reach of the first type of NIED claim,
the only type relevant here, is limited “‘to preexisting
relationships involving duties that obviously and objectively
hold the potential of deep emotional harm in the event of
breach.’”
Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202,
218 (Pa. Super. Ct. 2012) (quoting Toney v. Chester Cnty.
Hosp., 36 A.3d at 95 (opinion in support of affirmance)).5
In
other words, there must exist special relationship between the
plaintiff and defendant that “‘encompass[es] an implied duty to
care for the plaintiff’s emotional well-being.’” Id. (quoting
Toney v. Chester Cnty. Hosp., 36 A.3d at 95).
In New Jersey, “[t]he direct tort of NIED, as opposed to
one based on bystander liability, is ‘understood as negligent
conduct that is the proximate cause of emotional distress in a
person to whom the actor owes a legal duty to exercise
reasonable care.’”
Green v. Corzine, Civ. A. No. 09-1600, 2011
5
The Justices of the Pennsylvania Supreme Court were equally
divided in Toney. Accordingly, the opinion in support of
affirmance does not have precedential value. Weiley, 51 A.3d at
217 n.16. Nevertheless, the Weiley Court found it to be
persuasive.
6
WL 735719, at *8 (D.N.J. Feb. 22, 2011) (quoting Decker v.
Princeton Packet, Inc., 561 A.2d 1122, 1128 (N.J. 1989)).
A
plaintiff must establish that the defendant owed her a duty of
care, that the defendant was negligent, and that the negligence
proximately caused plaintiff’s injuries.
Williamson v.
Waldman, 696 A.2d 14, 17 (N.J. 1997). “[R]ecovery for negligent
infliction of emotional harm requires that it must be
reasonably foreseeable that the tortious conduct will cause
genuine and substantial emotional distress or mental harm to
average persons.”
Decker, 561 A.2d at 1128; see also
Williamson, 696 A.2d at 23 (“Emotional-distress damages must be
based on the fears experienced by a reasonable and
well-informed person.”).
Whether a defendant owes a plaintiff
a duty of care is a question for the court.
See Carter
Lincoln-Mercury, Inc., Leasing Div. v. EMAR Grp., Inc., 638
A.2d 1288, 1294 (N.J. 1994).
Nothing in the complaint suggests that plaintiff had a
contractual or fiduciary relationship with the defendants that
would give rise to duty to care for plaintiff’s emotional wellbeing.
Nor do general principles of tort law suggest that
defendants owed plaintiff a duty under the circumstances of
this case.
It is simply not foreseeable that a reasonable
person would experience severe emotional damage from the
maintenance of an internal security record of an event that, in
fact, occurred.
See Carter Lincoln-Mercury, Inc., Leasing
Div., 638 A.2d at 1294 (forseeability of a plaintiff’s injury
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“is a crucial element in determining whether imposition of a
duty on an alleged tortfeasor is appropriate”); Toney, 961 A.2d
at 199 (“The test for negligence is one of ‘reasonable
foreseeability.’”) (quoting Armstrong v. Paoli Mem. Hosp., 633
A.2d 605, 608 (Pa. Super. Ct. 1993)).
That the defendants owed
plaintiff a duty of care while she was physically on the
premises of their casino in 1999, as plaintiff alleges in her
amended complaint, is irrelevant to this case, which is
premised on the theory that the defendant breached a duty to
plaintiff by maintaining a record in its files.
See Taveras v.
Resorts Int’l Hotel, Inc., Civ. A. No. 07-4555, 2008 WL
4372791, at *4 & n.3 (D.N.J. Sept. 19, 2008) (that defendant
casino was required to maintain safe premises did not equate to
the conclusion that the casino owed compulsive gamblers a duty
to protect them from their own gambling behavior).
In sum, the
Court will dismiss plaintiff’s NIED claim because she cannot
prevail under either Pennsylvania or New Jersey law.
C.
Intentional Infliction of Emotional Distress (“IIED”)
To state a claim for intentional infliction of emotional
distress under either Pennsylvania or New Jersey law, a
plaintiff must allege conduct that is “so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized society.”
Hoy v.
Angelone, 720 A.2d 745, 754 (Pa. 1998) (quotations omitted);
see also Buckley v. Trenton Saving Fund Soc’y, 544 A.2d 857,
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863 (N.J. 1988); Restatement (Second) of Torts § 46.6
“[L]iability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities.”
Restatement (Second) of Torts § 46 cmt. d.
“It
is for the court to determine, in the first instance, whether
the defendant’s conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery[] . . . .” Id.
cmt. h; see also Buckley, 544 A.2d at 864; Swisher v. Pitz, 868
A.2d 1228, 1231 (Pa. Super. Ct. 2005).
Here, the conduct alleged by plaintiff is insufficiently
outrageous as a matter of law to sustain a claim for
intentional infliction of emotional distress.
The basis for
plaintiff’s claim is that the defendants are refusing to
destroy a record of an incident during which plaintiff stole
property from their casino as a result of her paranoid
schizophrenia – an incident that plaintiff acknowledges
occurred.
In other words, the defendants are maintaining an
internal record of the incident for security purposes.
That
conduct is not outrageous, even though the incident was minor
and took place over a decade ago, and even though plaintiff’s
6
The Pennsylvania Supreme Court has not expressly adopted
the tort of intentional infliction of emotional distress. See
Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 216 n.12 (Pa.
Super. Ct. 2012). However, the Pennsylvania Supreme Court has
acknowledged the tort and analyzed it in accordance with the
Restatement (Second) of Torts § 46. See Taylor v. Albert
Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000). Additionally,
the Third Circuit has predicted that Restatement’s formulation of
intentional infliction of emotional distress will eventually be
adopted by Pennsylvania’s highest court. See Pavlik v. Lane
Ltd./Tobacco Exporters Int’l, 135 F.3d 876, 890 (3d Cir. 1998).
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schizophrenia is currently under control.
Cf. Fanelle v.
LoJack Corp., 79 F. Supp. 2d 558, 565 (E.D. Pa. 2000) (“[U]nder
no set of facts could the reprinting of a truthful,
non-defamatory newspaper article, without more, be considered
utterly intolerable and beyond all bounds of decency.”);
Goodson v. Cigna Ins. Co., Civ. A. No. 85-0476, 1988 WL 52086,
at *17 (E.D. Pa. May 20, 1988) (“Posting an employee’s
photograph at security stations in a commercial building does
not amount to ‘extreme and outrageous conduct.’”).
Indeed, the
defendants’ conduct pales in comparison to the type of conduct
that courts have found to sustain an IIED claim.
See, e.g.,
Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1274 (3d
Cir.1979) (defendant’s team physician released to press
information that plaintiff was suffering from fatal disease,
when physician knew such information was false); 49 Prospect
St. Tenants Ass’n v. Sheva Gardens, Inc., 547 A.2d 1134, 114748 (N.J. Super. Ct. App. Div. 1988) (landlord failed to provide
central heating, running water and reasonable security in an
effort to get tenants to vacate); Banyas v. Lower Bucks Hosp.,
437 A.2d 1236, 1237-38 (Pa. Super. Ct. 1981) (defendants
intentionally fabricated records to suggest that plaintiff had
killed a third party which led to plaintiff being indicted for
homicide).
Accordingly, plaintiff has failed to state a claim
for intentional infliction of emotional distress under either
Pennsylvania or New Jersey law.
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IV.
CONCLUSION
For the foregoing reasons, the amended complaint is
dismissed.
The Court concludes that it would be futile to
provide plaintiff with an opportunity to amend her complaint
because it is apparent that her claims are time-barred and that
she is seeking to recover damages based on conduct that simply
is not actionable.
An appropriate order follows.
BY THE COURT:
/s/ Juan R. Sánchez
JUAN R. SÁNCHEZ, J.
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