Opinion
Civil Action 03-6809.
July 5, 2004
ORDER
AND NOW, this day of July, 2004, upon consideration of Defendant Resorts International Hotel, Inc.'s ("Resorts") Motion for Summary Judgment(Doc. 4), Plaintiff's response, and Defendant Resorts' reply brief, it is hereby ORDERED that said Motion is GRANTED. Summary Judgment is hereby ENTERED in favor of Defendant Resorts and against the Plaintiff on Counts Four and Five of Plaintiff's Complaint. The reasons for the Court's decision are stated below.
This case arises out of the alleged assault and battery of Plaintiff by Defendant Branca during a massage at the Resorts Hotel and Casino in Atlantic City, New Jersey. During the massage Branca allegedly touched Plaintiff inappropriately including massaging her breasts, pubic region, and in between her buttocks. At the end of the massage, Defendant Branca allegedly hugged Plaintiff while pressing his fully erect penis against her.
Plaintiff has brought suit against Resorts claiming that the hotel is liable under a theory of vicarious liability and for negligently hiring Defendant Branca. Resorts argues for summary judgment on the vicarious liability count because Branca was an independent contractor and not an employee, or, in the alternative, the alleged assault and battery was outside of the scope of any employment relationship. Because the Court finds that Resorts may not be held liable for the intentional torts claimed against Defendant Branca, this count will be dismissed without addressing the independent contractor issue. Resorts argues for summary judgment on the negligent hiring claim because there are no facts in the record showing that Resorts should have known that Defendant Branca possessed dangerous attributes which could foreseeably create a risk of harm to other people. The Plaintiff did not oppose this argument in her response to Resorts Motion, accordingly, the negligent hiring claim must be dismissed. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence to show a genuine issue for trial).
An employer is only vicariously liable for the tortious acts of an employee that take place within the scope of employment. The "scope of employment" encompasses those acts "which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." W. Prosser, LAW OF TORTS, 460-61 (4th ed. 1971) (quoted in Dicosala v. KKY, 91 N.J. 159, 169 (1982)). New Jersey follows the restatement approach to determine whether an act is within the scope of employment. Dicosala, 91 N.J. at 169. The restatement provides that an act is within the scope of employment if, "it is of the kind [that the servant] is employed to perform; occurs within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to serve the master." Restatement (Second) of Agency § 228(1957).
Applying the above test, Defendant Branca's alleged assault and battery was outside the scope of employment. No reasonable jury could conclude that the unwanted touching of Plaintiff was motivated by a desire to benefit Resorts. It is abundantly clear that the alleged touching of Plaintiff's private areas, if it occurred, was done for purely personal reasons. See Caldwell v. KFC Corp., 958 F. Supp. 962 (D.N.J. 1997) (dismissing complaint against employer for vicarious liability based on employee's touching of another employee's buttocks, because "nothing in the record suggest[ed] that [the employee]'s conduct was anything other than an individual wrong motivated by personal reasons.")
The instant case is distinguishable from GNOC Corp. v. Aboud, 715 F. Supp. 644 (D.N.J. 1989), on which Plaintiff relies. In GNOC Corp. the District Court denied a casino's motion for summary judgment which sought dismissal of fraud claims based on its employees' encouragement of a patron to gamble while they knew he was intoxicated. Id. at 649. The court found that there was a jury question as to whether the employees' actions were within the scope of their employment, because their actions were at least in part aimed at benefitting the defendant employer. Id. at 650. While the court recognized that there may have been personal motivations for the employees, the distinction between GNOC Corp. and the instant case is that there was a material issue of fact as to whether they were at least partially motivated by a desire to aid the employer's business. No such issue exists with regard to Defendant Branca's motivation. Accordingly, summary judgment is granted in favor of Defendant Resorts.
AND IT IS SO ORDERED.