Megan Strayer v. Wingate at Wyndham ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0787-22
MEGAN STRAYER, individually
and as administratrix ad
prosequendum and general
administratrix of the ESTATE OF
IVAN SCOTT STRAYER,
deceased,
Plaintiff,
v.
WINGATE AT WYNDHAM,
WINGATE VINELAND,
WYNDHAM WORLDWIDE,
WYNDHAM HOTELS AND
RESORTS, INC., ROTH 55
DEVELOPMENT CORP.,
WINGATE HOTEL,
EDWARD ROTH, HENRY ROTH,
LARRY PULCINE, OSMOSE
UTILITIES SERVICES, INC.,
Defendants,
and
RICHARD SPERAZZA,
Plaintiff-Appellant,
v.
WINGATE VINELAND, ROTH 55
DEVELOPMENT CORP.,
EDWARD ROTH, and
HENRY ROTH,
Defendants-Respondents.
_______________________________
Argued November 29, 2023 – Decided January 19, 2024
Before Judges Vernoia, Gummer and Walcott-
Henderson.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket Nos. L-0716-18
and L-0209-20.
Justin Lee Klein argued the cause for appellant (Law
Offices of Lorne M. Reiter, LLC, attorneys; Lorne M.
Reiter and Laura Catalina Johnson, of counsel; Justin
Lee Klein, on the briefs).
Michael J. Rossignol argued the cause for respondents
(Riker Danzig LLP, and Golden, Rothschild, Spagnola,
Lundell, Boylan, Garubo & Bell, P.C., attorneys;
Anthony J. Zarillo, Jr., Michael J. Rossignol, Youngjin
Hailey Park, and Rey O. Villanueva on the brief).
PER CURIAM
The single issue presented in this appeal is whether plaintiff Richard
Sperazza can recover on a claim for negligent infliction of emotional distress
for the emotional harm he suffered upon waking up to find the body of his
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murdered friend and co-worker in the hotel room they shared while on a work
assignment. Plaintiff appeals from a December 10, 2021 order granting the
summary judgment motion of defendants Wingate Vineland, Roth 55
Development Corp., Edward Roth, and Henry Roth (collectively the
defendants), and a January 22, 2022 order denying his motion for
reconsideration. We affirm.
The facts in this case are not in dispute. Plaintiff was employed by
Osmose Utilities Services, Inc. as a technician and worked alongside his friend
and roommate, Ivan Scott Strayer, at the time of Strayer's murder. Plaintiff,
Strayer, and other utility workers were assigned to work crews and traveled to
various locations around the country, living together in hotels while on
assignment. According to plaintiff, the crew led by Mark Knowles had worked
on five to six different sites before October 2016. Plaintiff and Strayer had been
hotel roommates on the prior ten to twelve work assignments. They also
socialized frequently outside of work. Plaintiff was the best man at Strayer's
wedding. Plaintiff considered Strayer family, knew his wife, and attended his
family functions.
Approximately one month before Strayer's murder, plaintiff and other
members of the Osmose work crew checked into the Wingate Hotel in Vineland.
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Knowles always made their hotel reservations and took the lead in making their
room assignments. The crew, consisting of five crew members, checked into
the hotel together, and included plaintiff, Strayer, Knowles, Charles Pulcine
(Chuck), and his brother Larry Pulcine (Larry), who had recently joined the
crew. Knowles spoke to the front desk clerk while the remaining crew members
provided their identification to the front desk clerk and "wrote on some
card . . . who was in which room." The crew members were assigned to three
rooms as follows: plaintiff and Strayer were assigned Room 404, the Pulcine
brothers were assigned Room 405, and Knowles was assigned Room 406.
On the evening of October 10, 2016, plaintiff had gone to Bennigan's
Restaurant, located in front of the hotel, to eat dinner and watch a baseball game.
He went alone, but Strayer eventually met him at the restaurant. Strayer left the
restaurant and returned to the hotel between 8:00 and 8:30 p.m. while plaintiff
stayed to watch the end of the baseball game. When plaintiff returned to their
hotel room around 10:00 p.m., he observed the television was on, and Strayer
appeared to be sleeping. That same evening plaintiff received a text message
from Chuck around 10:03 p.m. inviting him to hang out and drink some beers in
his room. At approximately 10:05 p.m., plaintiff went to the Pulcines' room,
although he briefly returned to his room to grab a few beers. He did not make
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any observations of Strayer at that time. He then returned to the Pulcines' room,
where he stayed until approximately 11:30 p.m.
While plaintiff was in the Pulcines' room, Larry left for approximately
thirty minutes, stating he was going to do laundry, and when he returned, Larry
was "shooting his mouth off to [plaintiff] . . . [plaintiff] wasn't in a good mood[,]
so [plaintiff] just left." When plaintiff finally returned to his room, he noticed
the television was off but did not make any observation of, or hear anything
from, Strayer at that time and "[w]ent to bed. . . . [and] didn't turn on the light
or anything . . . ."
On October 11, 2016, plaintiff woke up around 5:00 to 5:15 a.m. and
Strayer was still in bed, which was unusual because Strayer "was normally up
before [plaintiff]." Plaintiff said:
[I] looked over and . . . saw [Strayer's],
eyes were open, but he was not—nothing
really going on, you know. So I ran over,
grabbed his foot. It was ice cold. And,
then I went to—I grabbed his arm and
checked his pulse twice. I'll never forget
the noise it made. And I . . . panicked so I
ran out of the room. Went to Mark's
room . . . told him what I saw . . . And, I []
it was wild 'cause I mean, I didn't even
think [] I didn't hear anything, didn't see
any[.]
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According to plaintiff, he felt shocked at finding his friend's body and fear for
his own safety. Plaintiff later learned Strayer had been shot with a handgun.
Plaintiff did not witness the murder and did not encounter the murderer in his
hotel room. He was not physically harmed.
Larry was taken into police custody after video surveillance from the
hotel's front lobby area revealed that at approximately 10:00 p.m. on October
10, 2016, the Pulcine brothers had entered the lobby and approached the front
desk. According to the police report, the front desk clerk on duty at the time
created two keycards: one for room 404 and another for room 405 at around
10:00 p.m. and Charles took possession of the keycards from the clerk.
According to the keycard access log, the new keycard for Room 404 given to
the Pulcines was used to access Room 404 at 10:28 p.m. A responding police
detective estimated that Strayer was shot between 10:30 p.m. and 11:30 p.m.
while plaintiff was across the hall in Room 405. Larry was subsequently
arrested for, charged with, and convicted of Strayer's murder.
Strayer's wife brought a wrongful death and survivorship action under
N.J.S.A. 2A:31-2 and 2A:15-3 against defendants, while plaintiff brought a
separate action for negligent infliction of emotional distress. Both matters were
consolidated and proceeded to discovery where the parties retained liability and
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medical experts and took depositions. Strayer's wife's claims have since been
settled.
Plaintiff retained an expert on hotel management and operations and a
medical expert. His hotel management and operations expert, Kenneth Free,
opined that "the Wingate Hotel was aware of its safety obligations and deviated
from the industry standard of care that created a foreseeable risk of harm to the
hotel’s guests." Free explained Larry's criminal acts are the type of criminal
activity that adequate safety and security measures are intended to prevent and
were, therefore, foreseeable. Free concluded that the failure to identify or
properly register the Osmose crew was inconsistent with proper keycard control
and resulted in a foreseeable risk of harm to guests, and the implementation and
enforcement of a proper keycard control protocol system could have prevented
Larry's unauthorized entry into plaintiff's and Strayer’s room.
Defendants moved for summary judgment on October 7, 2021. On
December 10, 2021, the motion judge heard argument, after which he rendered
his decision from the bench. The motion judge found that plaintiff had failed to
demonstrate defendants' actions proximately caused plaintiff's emotional
injuries. He found plaintiff's injuries were "not based upon the handing of a
keycard" and that neither defendants nor their employees "cause[d] any of the
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emotional distresses being suffered by plaintiff." He acknowledged that
defendants' employee "shouldn’t have given the keycard to Mr. Pulcine" but
subsequently concluded:
you know, they were all friends. They had been in the
hotel. They were seen together and all those things.
It’s not like they gave the keycard to a stranger, but
putting that all aside, the Defendants here didn’t cause,
whether negligently, intentionally or recklessly, any of
the emotional distress caused—that Plaintiff is now
suffering from.
In his brief discussion of the law, the motion judge also relied on Falzone v.
Busch, 45 N.J. 559, 561 (1965), to support his causation determination, stating:
when you come to emotional distress types of claims
as, you know, started in this road down with Falzone
and its been kind of muddled by subsequent cases, there
still has to be the requirement that the [d]efendants are
the ones that caused the emotional distress. And I think
that’s clear -- made clear in the model jury charge under
3.30.f, that there has to -- it’s the plain -- it’s the
[d]efendants that have to be the cause of the emotional
distress. And I think that’s really what Falzone talks
about at least initially, not directly, but I mean, I think
it’s obviously inherent in it that it’s the [d]efendants
that cause it.
This appeal followed.
I.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That
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standard requires us to "determine whether 'the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
"Summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal
analysis. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018).
A. Bystander Claim for Negligent Infliction of Emotional
Distress.
On appeal, plaintiff argues the motion judge erred by ruling that, as a
matter of law, plaintiff's emotional injuries were solely caused by the actions of
Larry and that defendants' negligence did not cause his alleged injuries.
According to plaintiff, the motion judge erroneously "based [his] grant of
summary judgment entirely upon [his] determination that defendants' negligence
in giving the keycard to [plaintiff's] hotel room to an unauthorized individual,
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who used the keycard to access the room and murder [Strayer], did not
proximately cause any emotional distress to [plaintiff]."
Plaintiff continues to assert, as he did at summary judgment, that this case
is not a Portee v. Jaffee, 84 N.J. 88 (1980), bystander claim of negligent
infliction of emotional distress. Instead, he avers he is entitled to recover based
on a theory of direct negligence.
In Portee, our Supreme Court recognized a cause of action for the unique
emotional distress suffered by a mother as she watched her seven-year-old son
die an excruciating death, trapped in a malfunctioning elevator shaft. 84 N.J. at
91-92. Portee marked a pivotal development in the law, creating an exception
that allowed bystanders to recover damages for emotional injuries based on the
theory of negligent infliction of emotional distress. The Court considered the
facts that police attempted to rescue the child for four and a half hours, and the
plaintiff had to endure witnessing her son "moan, cr[y] out, and flail his arms."
Ibid. The plaintiff's son eventually died during the rescue attempt, and as a
result, the plaintiff "became severely depressed and seriously self-destructive,"
culminating in an unsuccessful attempt to take her own life, which "required
considerable physical therapy and . . . [she] received extensive counseling and
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psychotherapy to help overcome the mental and emotional problems caused by
her son's death." Ibid.Plaintiff disputes defendants' contention that the analysis set forth in
Portee is applicable. Instead, he maintains defendants owed him a direct duty
of care, the same duty of care that was owed to Strayer as a guest of the hotel,
there was a breach of the duty of care to him and Strayer, and that breach
proximately caused him severe emotional distress.
Defendants frame this issue as one that must be analyzed pursuant to
Portee. Confronted with a set of facts where a bystander suffered emotional
distress as a result of witnessing the death of her child, the Portee Court set forth
a four-factor test for bystander negligent infliction of emotional distress claims:
"(1) the death or serious physical injury of another caused by defendant's
negligence; (2) a marital or intimate, familial relationship between plaintiff and
the injured person; (3) observation of the death or injury at the scene of the
accident; and (4) resulting severe emotional distress." Id. at 101. Defendants
maintain that plaintiff cannot satisfy an essential element of a Portee claim
because plaintiff and Strayer lacked the requisite familial relationship, despite
their personal friendship and plaintiff's claim that he considered Strayer family.
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Defendants further note that our Supreme Court in McDougall v. Lamm
reaffirmed Portee's narrow application to specified relationships, namely
"marital or intimate, familial relationship[s]," when it denied the plaintiff
recovery for emotional distress suffered as result of witnessing the death of a
pet. 211 N.J. 203, 229 (2012). The Court emphasized that Portee claims have
been limited to relationships with a "plain and obvious emotional bond," such
as between a "parent, child, spouse, or an individual with whom one shares a
marital-like or intimate familial relationship[.]" Ibid. Thus, defendants aver the
relationship between the co-workers here does not rise to the level required by
Portee.
Although we recognize that the relationship between Strayer and plaintiff
may be more than that of mere co-workers, it does not rise to the level required
by Portee, and we see no basis to relax the Supreme Court's requirement of a
"marital-like or intimate familial relationship." McDougall, 211 N.J. at 229.
Thus, plaintiff did not, and cannot, establish a claim under Portee for negligent
infliction of emotional distress.
B. Direct Claim for Negligent Infliction of Emotional Distress.
Plaintiff concedes he cannot sustain his burden under Portee, but argues
the court nonetheless erred in granting defendant summary judgment because he
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has a direct claim for negligent infliction of emotional distress based on
defendants' breach of a duty it owed directly to him. The argument ignores the
limited bases supporting a negligent infliction of emotional distress claim.
The Supreme Court in Jablonowski v. Suther, held:
Generally, then, an individual can maintain an
independent tort action for negligent infliction of
emotional distress in two instances. A plaintiff can
demonstrate that the defendant's negligent conduct
placed the plaintiff in reasonable fear of immediate
personal injury, which gave rise to emotional distress
that resulted in a substantial bodily injury or sickness.
See Falzone, 45 N.J. at 569. Alternatively, a plaintiff
can state a prima facie claim for negligent infliction of
emotional distress by satisfying the four elements set
forth in Portee.
[195 N.J. 91, 104 (2008); accord Abousaid v. Mansard
Gardens Assocs., LLC, 207 N.J. 67, 76-77 (2011).]
Plaintiff contends he is entitled to recover damages based on a direct claim
of negligent infliction of emotional distress that follows traditional negligence
analysis, which he claims "can be 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." Russo v. Nagel, 358 N.J. Super. 254, 269-70
(App. Div. 2003) (quoting Decker v. Princeton Packet, 116 N.J. 418, 429
(1989)).
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Here, plaintiff relies on Falzone, 45 N.J. 559, Strachan v. John F. Kennedy
Memorial Hospital, 109 N.J. 523 (1988), and Lascurian v. City of Newark, 349
N.J. Super. 251, 277 (App. Div. 2002). He distinguishes these cases from the
Portee line of cases, arguing that defendants owed a duty directly to him—as a
guest in their hotel—that included not giving keycard access to his room to any
other person. Plaintiff argues that defendants, through their negligent
distribution of the keycard, breached a duty owed directly to him, and are
therefore liable for his emotional distress damages. Ibid.Defendants argue that under Falzone's "zone of danger" test, 45 N.J. at
569, plaintiff cannot show he was in imminent fear of harm. In Falzone, the
defendant-motorist's car struck the plaintiff's husband, who was standing in a
field as the plaintiff sat in her car, which was parked nearby. 45 N.J. at 561.
The plaintiff observed the oncoming car, although she was not physically struck
or injured. The plaintiff's husband suffered serious injuries as a result of the
collision. The plaintiff filed suit, alleging negligent infliction of emotional
distress for having witnessed her husband's injuries and because she was also in
fear of her own bodily injury as she witnessed the accident. The trial court
granted the defendant summary judgment.
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However, the Court reversed the trial court's grant of summary judgment
to the defendant and held a plaintiff could recover for bodily injury or sickness
resulting from fear for her own safety caused by a negligent defendant where
she was placed in danger by such negligence, although there was no physical
impact. Id. at 569.
By eschewing the "prior inflexible requirement of physical impact,"
Falzone expanded the potential reach of liability for claims for emotional
distress "where negligence causes fright from a reasonable fear of immediate
personal injury." Ibid.; see also Portee, 84 N.J. at 934. Plaintiff relies on the
Court's reasoning and holding in Falzone for the proposition that, like the
plaintiff in Falzone, who the Court recognized had been equally "fearful of
immediate injury" because of her proximity to her husband when he was struck
by the defendant's vehicle, he was in the zone of danger by virtue of sharing the
same hotel room and awaking to find the body of his murdered friend and co-
worker.
Plaintiff also maintains that the Court's reasoning in Falzone is equally
applicable here because although not physically injured, he suffered emotional
harm by virtue of being fearful of immediate injury when he realized his
roommate and friend was dead in the bed next to him. He, therefore, seeks
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reversal of the order granting summary judgment to defendants, arguing that
under Falzone, witnesses to harm suffered by others can establish liability on
the contention that they were "fearful of immediate injury."
The problem with plaintiff's argument is that Falzone, as the Court
recognized in Portee, 84 N.J. at 93, Jablonowska, 195 N.J. at 104, and Abousaid,
207 N.J. at 77, requires a plaintiff to demonstrate "a reasonable fear of
immediate personal injury," Falzone, 45 N.J. at 569, and plaintiff has failed to
make that showing. Plaintiff understandably may have felt shock and even fear
when he discovered his roommate's dead body, but the evidence in the record
does not establish he had a "reasonable fear of immediate personal injury." Ibid.To the contrary, plaintiff testified he "didn't even think . . . didn't hear anything,
didn't see any[thing]" in the moments after he found Strayer's dead body in the
hotel room.
As the record shows, plaintiff was not present when Strayer was murdered,
plaintiff did not encounter the murderer in his hotel room, Strayer's body was
"ice cold" when plaintiff touched it, and plaintiff was not even aware that Strayer
had been murdered until he was so advised by investigating officers later in the
day. According to plaintiff's deposition testimony, when he returned to his room
the night of the murder, all the lights were off, and he "used [his] phone light to
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guide [him] to [his] bed so as to not disturb Strayer," whom he believed was
sleeping. He then "put [his] phone on the . . . nightstand and [he] crawl[ed] into
bed" to go to sleep. It was only when he awoke early the next morning that he
saw Strayer was still in bed and eventually realized that something was wrong.
He then "ran up to him, grabbed his foot, leg" and "pushed his chest and checked
his pulse twice." And, once he realized Strayer was unresponsive, he testified,
"obviously, I didn't know what to do" and "didn't know what was [going] on"
and "just—ran out." Plaintiff also testified that it was his understanding when
he discovered Strayer's body that "he had passed away[, but he] didn't know that
he was shot." A police officer called to the scene later told plaintiff, who was
then sitting in the hallway, that Strayer had been shot with a handgun. On these
facts, plaintiff has not demonstrated that he had a reasonable fear of any personal
injury, never mind the requisite "reasonable fear of immediate personal injury."
Ibid. see also Jablonowski, 195 N.J. at 104.
Based upon these undisputed facts, we cannot conclude that the principles
of liability addressed in Falzone support plaintiff's cause of action. We also
consider that based upon plaintiff's own testimony, for all he knew at the time,
Stayer could have died from natural causes. He was understandably distraught,
confused, and in shock, but those facts do not establish that he was in the zone
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of danger or reasonably fearful of immediate harm, under the principles
explained in Falzone.1
Plaintiff concedes that he does not have a claim or cause of action under
Portee, and we otherwise conclude he cannot sustain his burden of proving a
Portee claim. We also find he cannot otherwise sustain the asserted negligent
infliction of emotional distress claim because he failed to present any evidence
he suffered a reasonable fear of immediate personal injury under Falzone. See
Friedman v. Martinez, 242 N.J. 449, 472 (2020) ("Summary judgment should be
granted . . . 'against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that party
will bear the burden of proof at trial.'") (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986)).
Affirmed.
1
Plaintiff's reliance on Strachan, 109 N.J. 523, and Lascurian, 349 N.J. Super. 251,
is also misplaced. Those cases address issues not present in this case such as "the
duty of health-care providers to turn over to the next of kin a family member's dead
body," Strachan, 109 N.J. at 525, the negligent handling of a dead body, id. at 533,
and "the mishandling or misuse of a burial plot," Lascurian, 349 N.J. Super. at 276.
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