CHRISTIAN MADERA v. DUNKIN DONUTS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6071-04T36071-04T3

CHRISTIAN MADERA,

Plaintiff-Appellant,

v.

DUNKIN DONUTS, located at Market

Street, Newark, New Jersey;

"CHANDRAY" (fictitiously named defendant,

proprietor/owner of defendant Dunkin

Donuts),

Defendants-Respondents,

and

"MUKESH" (fictitiously named

defendant, manager of defendant Dunkin

Donuts),

Defendant.

_________________________________

 

Submitted April 3, 2006 - Decided June 13, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6037-03.

Donald B. Liberman, attorney for appellant.

Ronca, Hanley, Nolan & Zaremba, attorneys for respondents (William J. Hanley and Stephen P. McEvily, on the brief).

PER CURIAM

Plaintiff, Christian Madera, appeals from: 1) an order of the Law Division entered on March 18, 2005, granting partial summary judgment to defendants, Dunkin' Donuts, and Chandray, dismissing all claims sounding in negligence as barred by the Workers' Compensation Act, N.J.S.A. 34:15-8; 2) an order of the Law Division entered on May 13, 2005, denying plaintiff's motion for summary judgment and granting summary judgment to the defendants Dunkin' Donuts and Chandray, dismissing all claims asserted under the doctrine of respondeat superior; and 3) an order of the Law Division entered on May 31, 2005, confirming "dismissal of plaintiff's claims against" Dunkin' Donuts and Chandray. We affirm.

Plaintiff, an employee of Dunkin' Donuts, instituted suit against the business and its manager, Chandray, for damages, claiming that he received a laceration on one of his hands after an altercation with Mukesh, a co-employee supervisor of the defendant-owner's store located on South Orange Avenue, Newark, in March 2003. The single-count complaint alleges: Mukesh had repeatedly harassed and demonstrated violent behavior towards plaintiff on prior occasions; plaintiff had advised Chandray of Mukesh's behavior; Chandray promised that he would not assign the two employees to the same work shift; on the evening in question, both co-employees were working at the same store at the same time, with Mukesh acting as supervisor; Mukesh requested that plaintiff leave the store, and in response to plaintiff's refusal, Mukesh attacked plaintiff with a knife and injured him. The complaint does not specify the causes of action asserted, but only makes a claim for damages. Defendants Dunkin' Donuts and Chandray filed an answer, but failed to address the allegations contained in paragraphs six through ten of the complaint concerning Mukesh being a supervisor and attacking the plaintiff after plaintiff refused to obey his order. Although the record discloses that defendant Mukesh never filed an answer, it is unclear whether he was ever served or default entered against him.

During discovery, Chandray answered interrogatories stating that: 1) the proper name of the owner of the business was "Super Donuts, Inc. d/b/a Dunkin['] Donuts;" 2) he was the store manager in charge of day-to-day operations of the stores located on Market Street and South Orange Avenue; 3) he left the premises prior to the time of the alleged assault by plaintiff, leaving Raj Patal, the shift manager, in charge of the store. Concerning the assault, Chandray stated that:

Mukesh was preparing a sandwich and had a bagel knife in his hand when an argument between Mukesh and the plaintiff occurred. According to Mr. Patal[,] the plaintiff approached Mukesh who was a co-employee, in anger and in the process got a slight scratch on his hand from the aforementioned knife. . . . He put a small band-aid on his hand and continued to work.

In his deposition, plaintiff stated that the incident occurred after he reported to work and found beer bottles belonging to Mukesh in the store's refrigerator. Plaintiff grabbed the bottles, and threw them out. "When [Mukesh] found out that I threw out the beer bottles, he came toward me to attack me, and the first time when he slapped me, I pushed him. After pushing him, he grabbed the knife and he came to attack me and that is when he cut my hand . . . ." As to the injury, plaintiff stated that he could not recall which hand had been cut during the incident because no residual scar remained.

Dunkin' Donuts and Chandray moved for summary judgment on the basis that plaintiff's claim was barred by the Workers' Compensation Act, pursuant to N.J.S.A. 34:15-8. On March 18, 2005, Judge Davidson granted summary judgment dismissing all claims sounding in negligence against the defendants, but allowed plaintiff to continue with his action against the defendants (collectively the employer) on the basis of respondeat superior. The judge stated, "[B]ecause the allegations in this complaint are somewhat vague, I want to be clear that the plaintiff can only proceed on grounds that the employer is responsible for the employee's assault and not based upon any claim of any action taken or inaction taken by the employer."

Defendants filed a second motion for summary judgment seeking dismissal of all claims based upon the theory of respondeat superior. Plaintiff opposed the motion and cross-moved, arguing that because defendants had failed to deny the allegations contained in Paragraphs six through ten of his complaint, they were deemed admitted and established a cause of action under respondeat superior against defendants for the intentional assault committed by Mukesh. Because of the discovery that had occurred, Judge Davidson allowed defendants to amend their answer sua sponte to include a denial of the allegations, but for the purpose of the motion, assumed that Mukesh was a co-employee and supervisor of plaintiff at time of the assault. Judge Davidson granted summary judgment concluding that Mukesh's attack had nothing to do with the work for which he had been employed.

Okay. I [am] . . . going to grant the defendant's motion for summary judgment and deny the plaintiff's submission for summary judgment relying upon Carter [v.] Reynolds, 175 [N.J.] 402 [(2003)] and Mason v[]. Sportsman's Pub, 305 [N.J. Super.] 482 [(App. Div. 1997)].

And, turning to the definition by the restatement that [is] contained in that case substantially, as stated by [defense counsel] on the record, I do not find, that . . . given the facts in the light most favorable to plaintiff[,] that anyone can conclude that Mr. Mukesh's attack . . . had anything to do with the kind of work he was employed to perform. It was [not] as though he was buttering a bagel and the knife slipped and cut the plaintiff. It was substantially within the authorized time and space limits.

There has been nothing in the record to show that it was actuated, at all, by a purpose to serve the master. And, similarly, there [has] been nothing in the record to show that the use of force was not unexpected by the master. Whatever allegations were . . . made by plaintiff, had to do with harassment by Mukesh of the plaintiff and there was nothing to indicate that he had used violence in the past and could be expected to use violence in the future.

On appeal, plaintiff argues:

POINT I.

THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT WITH PREJUDICE BECAUSE APPELLANT'S CLAIMS MET THE NEW JERSEY SUPREME COURT TEST FOR ASSERTING LIABILITY AGAINST RESPONDENTS DUNKIN' DONUTS AND CHANDRAY UNDER A RESPONDEAT SUPERIOR LIABILITY THEORY.

A. THE APPELLEES DID NOT DENY[] THAT APPELLANT'S CLAIMS ESTABISH THE REQUIRED "MASTER-SERVANT" RELATIONSHIP FOR PURPOSES OF ASSERTING LIABILITY AGAINST RESPONDENTS UNDER A RESPONDEAT SUPERIOR LIABILITY THEORY.

1. "MASTER-SERVANT" PRONG.

2. "WITHIN THE SCOPE OF EMPLOYMENT" PRONG.

3. THE TRIAL COURT ERRED BY GRANTING RESPONDENTS SUMMARY JUDGMENT AND SHOULD HAVE GRANTED APPELLANT SUMMARY JUDGMENT ON ITS CROSS- MOTION PURSUANT TO RULE 4:5-5.

POINT II.

THE TRIAL COURT ERRED IN GRANTING RESPONDENTS' MOTION FOR SUMMARY JUDGMENT AND DENYING APPELLANT'S CROSS-MOTION BECAUSE NO GENUINE ISSUE OF MATERIAL FACT EXISTED TO PRECLUDE ENTRY OF SUMMARY JUDGMENT IN APPELLANT'S FAVOR.

A trial court will grant summary judgment to the moving party "if 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." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "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).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We have considered the arguments advanced by plaintiff, in light of the record below, and find his arguments are without sufficient merit to warrant a more detailed discussion in a full, written opinion. We affirm substantially for the reasons expressed by Judge Davidson in her oral opinions of March 18, 2005, and May 13, 2005. R. 2:11-3(e)(1)(A) and (E). We add the following comment.

The motion judge applied the proper summary judgment standard giving plaintiff the benefit of all reasonable inferences, and deemed Mukesh a co-employee and immediate supervisor of plaintiff at time of the assault. In order for plaintiff to have recovered under a theory of respondeat superior, plaintiff had to establish "that a master-servant relationship existed" at the time of the incident, and that Mukesh's "act . . . occurred within the scope of that employment." Carter, supra, 175 N.J. at 409. "Proof that the employer-employee relationship exists does not, in and of itself, create an inference that a given act done by the employee was within the scope of employment." Id. at 410. In order to determine whether the conduct occurred within the scope of Mukesh's employment, we apply the standard set forth in the Restatement (Second) of Agency 228, 229 (1958). Id. at 411-12.

Based upon plaintiff's deposition testimony of what occurred, we determine that Judge Davidson correctly concluded that the argument resulting in plaintiff's injury did not fall within the scope of employment for the purpose of respondeat superior liability.

 
Affirmed.

In the caption of the complaint, plaintiff incorrectly designates the name of the defendant-employer as "Dunkin Donuts," rather than its correct name, "Super Donuts d/b/a Dunkin' Donuts." Dunkin' Donuts USA, Inc., a wholly-owned subsidiary of Dunkin' Donuts, Inc., "is the owner of the trademark, service mark, and trade name DUNKIN' DONUTS and related marks." Dunkin' Donuts Inc. v. Barr Donut, LLC, 242 F. Supp. 2d 296, 299 (S.D.N.Y. 2003). The complaint also names the proprietor or owner of the business as "Chandray," a fictitious name, and names the supervisor at the premises where the assault occurred as "Mukesh," a fictitious name. According to discovery provided in the appendix, the true names of the respective defendants are: "Chandrash Behatt" (employee and manager); and "Vinod Kumar Patel" (employee), respectively. Because the orders appealed from reference the defendants by the names designated in the complaint, we shall continue to refer to the parties by those names for purposes of this decision, except, we shall refer to the employer by its correct trade name, "Dunkin' Donuts."

The Law Division's Automated Case Management System discloses that an order was entered on June 27, 2005, dismissing the complaint as to Mukesh and other fictitious parties.

(continued)

(continued)

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A-6071-04T3

June 13, 2006