JUDY DOE VS. SAKER SHOPRITES, INC.  (L-1761-10, MERCER COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4583-13T4
JUDY DOE, by and through
her mother, MOTHER DOE and
MOTHER DOE,
Plaintiffs-Appellants,
v.
SAKER SHOPRITES, INC.,
SAKER HOLDINGS CORP.,
J.S. FAMILY LIMITED
PARTNERSHIP, L.P.
WAKEFERN FOOD CORPORATION,
JOHN ROE and T.S.,
Defendants-Respondents,
and
J.B. and A.Z.,
Defendants.
________________________________________________________________
Argued June 21, 2016 – Decided June 16, 2017
Before Judges Espinosa and Kennedy.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-1761-10.
George B. Forbes argued the cause for
appellants (Forbes Law Offices, LLC,
attorneys; Mr. Forbes, of counsel and on the
brief).
Robert Francis Gold argued the cause for
respondents (Gold, Albanese & Barletti,
L.L.C., attorneys; Judy T. Albanese, of
counsel and on the brief).
PER CURIAM
Judy Doe,1 by and through her mother, Mother Doe, filed a
complaint against Saker ShopRites, Inc. (ShopRite) and Wakefern
Food Corporation2, (Wakefern) (collectively, defendants), based
upon an incident that occurred at the East Windsor ShopRite
supermarket (the ShopRite store) on July 15, 2008. J.B. and A.Z.
were also named as defendants but have never filed an answer.
Plaintiff3 appeals from an order that granted summary judgment to
defendants, dismissing the complaint. We affirm.
I.
The facts, viewed in the light most favorable to plaintiff,
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995);
R. 4:46-2(c), can be summarized as follows.
1
Fictitious names and initials are used to protect the privacy
of the child.
2
Saker Holdings Corp., J.S. Family Limited Partnership, L.P.,
John Roe and T.S. were also named as defendants. The claims
against them were voluntarily dismissed.
3
Because all claims by Mother Doe were voluntarily dismissed,
plaintiff refers to Judy Doe throughout.
2 A-4583-13T4
At approximately 10:21 p.m. on July 15, 2008, Judy and her
mother entered ShopRite's store in East Windsor. Judy, six years
old, was wearing a short skirt and a t-shirt.
Approximately fifteen minutes later, Judy walked down aisle
number 16 toward the front of the store. A store employee, J.B.,
looked at Judy as he walked past the aisle. A minute later, he
repeated this action and, a few seconds later, he again walked
past aisle 16, again looking at Judy. After about one minute, he
stared at Judy from the front of the aisle for forty-four seconds
and then stopped at the display at the end of aisle 16, where he
watched Judy's movements.
After Judy joined her mother in the meat section, J.B.
approached them, nearly bumping into Judy. While her mother was
in the meat section, Judy picked up a broom in aisle 14. Her
mother told her to return the broom after they walked together to
aisle 15.
When Judy was alone in aisle 14, J.B. approached her, told
her to "come over" and knelt down to take photographs with his
cellphone of her bare legs. Then J.B. said, "good girl," lifted
Judy's t-shirt to expose her stomach, took a picture, and said,
3 A-4583-13T4
"really good girl."4 Judy screamed for her mother and J.B. took
off.
The encounter lasted approximately two minutes and occurred
before J.B.'s shift began.
Judy's mother found her, shaking, crying and barely able to
speak. She went through the store, asking Judy to point out the
man who had touched and photographed her. They found J.B. in the
warehouse, hiding behind pallets. He volunteered, "I didn't take
any photo[s]," and handed Mother Doe a phone as proof. Judy noted
that J.B. had a different color phone when he photographed her and
her mother asked to speak to a manager.
Before Judy and her mother found him, J.B. had left the store
and met with A.Z., who now responded as the manager.5 He attempted
to persuade her there were no photos on the phone, again using the
phone J.B. had presented to her. A.Z. also said that J.B. was
"mentally slow," would not do it again and would be punished.
There was no record that A.Z. filed a report regarding this
incident thereafter.
4
Although it was alleged that J.B. touched Judy in her
chest/breast area at this time, Judy testified that, other than
her shirt, J.B. did not touch any part of her body.
5
Although A.Z. was J.B.'s direct supervisor, A.Z. was not a
manager; they were both union employees.
4 A-4583-13T4
As Judy and her mother walked away, another employee told
them A.Z. was a friend of J.B. and directed them to Keith Hayslett,
the night manager. Hayslett filled out a Customer Incident Report.
He testified he did not call the police because Mother Doe told
him not to do so. He also prepared an Employer's Warning Notice
Corrective Review, dated July 15, 2008, detailing the incident,
that included the following:
This is against company policy and a violation
of harassment in the workplace. For your
alledged [sic] actions, you will be
disciplined. You have been warned earlier
about taking pictures of customers.
The details of the discussion and plan of action stated: "For your
alledged [sic] actions [J.B.] is suspended pending union
review/termination. You are not to work until the union has
cleared you to work." J.B. refused to sign the form.
At his deposition, Hayslett testified that Henry Lemus, the
maintenance manager, told him there had been a prior incident of
J.B. taking pictures of customers. Hayslett did not know who had
warned J.B. about taking pictures or the nature of the pictures
taken, other than that the customer was an adult female. When
deposed, Lemus did not recall telling Hayslett that J.B. had
received a warning or being told that J.B. was taking pictures of
women in the store.
5 A-4583-13T4
ShopRite's Loss Prevention Detective, Dale Scott, interviewed
and took audio statements from Hayslett, Lemus, A.Z., and J.B.
Hayslett told Scott he had required the assistance of Lemus to
translate Mother Doe's statements to him. According to Scott's
report, Lemus stated that, when he spoke to her, "she was quite
passive about the entire incident and stated that she doesn't want
to get anyone in trouble, she just wants to know what happened to
her daughter." Lemus's description of Judy's account comports
with the allegations in the complaint. A.Z. contended J.B. did
not take any photos of Judy. J.B. denied the allegations, claiming
he approached Judy out of concern she was alone in the store at a
late hour, asked her where her mother was and intended to help her
find her mother when she ran off crying. He maintained he had no
physical contact with her. Scott concluded there was no evidence
to substantiate the allegation against J.B. and told him he could
return to work as soon as possible.
At Lemus's request, Michael McDonald, the store manager,
reviewed video surveillance tapes and, based on that review,
contacted the East Windsor police. A search warrant was obtained
for J.B.'s home, resulting in the recovery of pornographic material
and two cell phones. One was a black flip phone that J.B. and
A.Z. had shown to Mother Doe. The other was a gray phone that
contained photos of Judy and other young females. The
6 A-4583-13T4
investigation also revealed that J.B. sent the photos of Judy to
A.Z.'s cell phone.
J.B. began working at the ShopRite store in 1997 as a part-
time grocery clerk and was later assigned to the night crew in a
full-time position. He had no prior arrests before this incident.
J.B. was charged with luring, N.J.S.A. 2C:13-6, and engaging in
sexual conduct that would impair or debauch the morals of a child,
N.J.S.A. 2C:24-4(a). In a psychological evaluation conducted at
the request of his public defender for his defense in the criminal
charges filed after this incident, J.B. acknowledged behavioral
issues.
A.Z. had worked at the ShopRite store previously, left to
start a business and later returned, working as the night crew
chief as of 2008. No additional review of his application was
conducted at the time he was rehired because his superiors knew
his reason for leaving and what his work performance was before
he left. A.Z. was charged with engaging in sexual conduct that
would impair or debauch the morals of a child, N.J.S.A. 2C:14-
9(a), based upon his receipt of photos from J.B.
A psychologist evaluated Judy approximately four years after
the incident at ShopRite. Judy was reported to have academic
difficulties, impulsive behavior, nightmares and trouble sleeping.
The psychologist found "positive symptoms for Posttraumatic Stress
7 A-4583-13T4
Disorder (PTSD), suffered as a direct result of the traumatic
incident at" the ShopRite store. She also opined that "Attention-
Deficit/Hyperactivity Disorder (ADHD) of the Inattentive Type or
the Hyperactive-Impulsive Type should be ruled out."
The complaint alleged intentional tort and violation of New
Jersey's Child Sexual Assault Act, N.J.S.A. 2A:61B-1 (count one),
abduction and false imprisonment (count two), assault and battery
(count three), negligent hiring, retention, training and
supervision (count four), intentional infliction of emotional
distress (count five), and negligent infliction of emotional
distress (count six).
Defendants filed a motion for summary judgment. Mother Doe's
claims were voluntarily dismissed. Plaintiffs did not oppose
dismissal of the counts alleging assault and intentional
infliction of emotional distress as to Judy, and, at oral argument,
announced the dismissal of counts against all defendants except
Wakefern and ShopRite.
After additional briefing, the trial judge heard oral
argument on whether ShopRite could be liable, under a theory of
vicarious liability, for the intentional acts of J.B. and A.Z.
Plaintiffs' counsel argued that the statement in the Employer's
Warning Notice Corrective Review, "You have been warned earlier
about taking pictures of customers," presented an issue of fact
8 A-4583-13T4
that should preclude summary judgment as to ShopRite.6 He
contended further that the reference to the warning was "bolstered"
by the discovery of photographs of other females on J.B.'s cell
phone by the police.
Noting that extensive discovery had been conducted, the trial
judge found the reference to a prior warning was insufficient to
present a material issue of fact to warrant the imposition of
vicarious liability on ShopRite, even considering the photos found
on J.B.'s cell phone. She observed that the prior warning only
referred generally to "pictures of customers," without any
additional information as to the age of the customers or whether
the pictures were otherwise inappropriate in any way. She stated
the jury should not be allowed to speculate "that J.B. was taking
pictures of little kids or adults going . . . up their skirts
or . . . telling them to pick up their shirts, if you're talking
about little kids, or anything inappropriate." And, she concluded,
it would be mere speculation for the jury to find that the warning
proved J.B. had taken such photos and ShopRite knew about it.
Accordingly, she granted summary judgment to defendants.
6
Plaintiffs' counsel argued that Wakefern should be denied
summary judgment on a different theory, but conceded that if
ShopRite was dismissed, there would be no basis for Wakefern to
be denied summary judgment.
9 A-4583-13T4
II.
On appeal, plaintiff argues the trial judge applied an
erroneous standard to the summary judgment motion. She argues she
sustained her intentional tort claim against J.B. and, therefore,
ShopRite is vicariously liable because its retention of J.B. was
reckless or negligent. She contends there was adequate evidence
to support her claim of negligent retention because ShopRite had
previously issued a warning to J.B. Finally, plaintiff argues
that, even if J.B. were off-duty at the time of the incident, it
was foreseeable that his known behavior would lead to customer
harm. We are unpersuaded by any of these arguments.
In reviewing a summary judgment decision, we consider the
evidence "in a light most favorable to the non-moving party," Rowe
v. Mazel Thirty, LLC, 209 N.J. 35, 38 (2012) (citing R. 4:46-2(c),
"to determine if there is a genuine issue as to any material fact
or whether the moving party is entitled to judgment as a matter
of law," id. at 41 (citing Brill, supra, 142 N.J. at 529). "An
issue of fact is genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring
the non-moving party, would require submission of the issue to the
trier of fact." R. 4:46-2(c).
10 A-4583-13T4
Plaintiff cites Section 219 of the Restatement (Second) of
Agency (1957) (Restatement), as legal support for her claim against
ShopRite. Restatement, supra, § 219 states, in pertinent part:
(1) A master is subject to liability for the
torts of his servants committed while acting
in the scope of their employment.
(2) A master is not subject to liability for
the torts of his servants acting outside the
scope of their employment, unless:
. . . .
(b) the master was negligent or
reckless . . . .
No credible argument can be made that J.B. was acting within
the scope of his employment when he subjected Judy to photographing
her and raising her shirt. The question then, is whether plaintiff
has presented evidence that creates a material issue of fact as
to whether ShopRite was negligent or reckless.
Plaintiff argues "ShopRite was reckless in its retention of
J.B. because it had prior knowledge that he was following and
taking pictures of customers." To establish such knowledge,
plaintiff relies upon the sentence in the Employer's Warning Notice
Corrective Review, "You have been warned earlier about taking
pictures of customers."
This sentence exists, untethered to any evidence that informs
what the warning was, who gave it to J.B. and, most notably, what
11 A-4583-13T4
meaning should be given to "taking pictures of customers." The
ages of the customers and the nature of the pictures are not
specified in this statement. Certainly, there is no reference to
J.B. touching a child's or any customer's clothing to expose their
torso. As the trial judge astutely observed, speculation is
required to interpret these general words as proving ShopRite had
knowledge that J.B. engaged in similar behavior before.
Plaintiff argues that her characterization of the warning is
confirmed by the photographs found on J.B.'s cellphone. The
investigating detective described them in his deposition as
"several pictures of other juvenile females." Plaintiff has not
identified any other evidence in the record that expands the
description of these photos. It is, therefore, unknown how young
these females were, where or when the photographs were taken,
whether the females were customers of ShopRite, or whether the
photographs show that J.B. manipulated the clothing of any juvenile
female to expose her skin. Most important, there is no evidence
in the record that ShopRite had knowledge of the photos on J.B.'s
phone before July 15, 2008.
Although the non-moving party is entitled to all favorable
inferences, "it is evidence that must be relied upon to establish
a genuine issue of fact." Cortez v. Gindhart, 435 N.J. Super.
589, 605 (App. Div. 2014), certif. denied, 220 N.J. 269 (2015).
12 A-4583-13T4
"Competent opposition requires 'competent evidential material'
beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v.
AsSeenOnTv.com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)
(citation omitted).
The evidence relied upon by plaintiff is probative of J.B.'s
guilt of the offense for which he was convicted. It does not,
however, offer any competent proof that ShopRite had knowledge of
any behavior by him prior to July 15, 2008 that would have rendered
them reckless or negligent in keeping him employed as a member of
their night crew.
To the extent that we have not addressed any arguments
presented by plaintiff, it is because we deem those arguments lack
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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