DAVID DIXON, JR., and CHADRICK GARRIS v. CEC ENTERTAINMENT, INC d/b/a CHUCK E. CHEESE v. DAMION BOGLE Third-Party

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2010-06T12010-06T1

DAVID DIXON, JR., and

CHADRICK GARRIS,

Plaintiffs-Appellants/

Cross-Respondents,

v.

CEC ENTERTAINMENT, INC.

d/b/a CHUCK E. CHEESE,

Defendant-Respondent/

Cross-Appellant/Third-Party

Plaintiff,

v.

DAMION BOGLE,

Third-Party Defendant.

__________________________________________________________

 

Argued April 7, 2008 - Decided

Before Judges Graves, Sabatino and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No.
L-4087-04.

Glenn D. Goldberg argued the cause for

appellants/cross-respondents (Alpert Goldberg

Butler Norton & Weiss, P.C., attorneys; Mr.

Goldberg, of counsel; Mr. Goldberg, David N.

Butler, and Clark E. Alpert, on the briefs).

Lawrence M. Berkeley argued the cause for

respondent/cross-appellant (Stein, McGuire,

Pantages & Gigl, LLP, attorneys; Mr. Berkeley,

of counsel; Gerald J. Gunning, on the brief).

PER CURIAM

On Sunday, October 5, 2003, plaintiffs, David Dixon, Jr. (Dixon) and Chadrick Garris (Garris) were at a Chuck E. Cheese restaurant (the restaurant, or defendant's restaurant) at the Bergen Mall in Paramus celebrating a birthday party for one of their young daughters when they were assaulted by a restaurant employee. This personal injury action ensued. Following a trial, a jury returned a verdict in favor of each plaintiff and awarded damages of $10,000 to Dixon and $5,000 to Garris. Plaintiffs appeal from "the damages portion of [the] jury verdict," and they also appeal from the court's decision to exclude certain evidence from the jury.

In a cross-appeal, defendant CEC Entertainment, Inc., the operator of the restaurant, contends the trial court erred: (1) in denying its pretrial motion for summary judgment and its subsequent motion for a directed verdict at the close of plaintiff's case, (2) in awarding damages from stipulated medical expenses, and (3) in failing to apportion liability against its former employee, Damon Bogle (Bogle), the person who assaulted plaintiffs. After reviewing the record and the applicable law in light of the arguments presented, we affirm.

We summarize the following facts from the evidence adduced at trial. Dixon and Garris were good friends since childhood. On October 5, 2003, they were at defendant's restaurant for a birthday party, because Dixon's daughter turned two the next day. The restaurant catered to children between the ages of two and twelve. Defendant referred to its employees as "cast members." Company policy prohibited male employees from having visible body tattoos or wearing earrings. Defendant also had emergency procedures for dealing with violence on the restaurant's premises.

When third-party defendant Bogle applied for a kitchen position at the restaurant, he indicated on the employment application form that he was "old enough to work all kitchen equipment" (eighteen or older), he was a high school graduate, and he had never been convicted of a felony or misdemeanor. But he did not provide his social security number or fill in the information about experience and prior employment. At some point, he provided two different social security numbers which police later determined did not belong to him. Defendant hired Bogle as an hourly "food & beverage laborer" on January 3, 2000. He worked in the kitchen where he made and cut pizza, and made sandwiches. His job uniform consisted of a short-sleeve red shirt, blue pants, white sneakers, a belt, and hat.

Naida Carrasquillo (Carrasquillo) was one of defendant's assistant managers, and Bogle reported to her when they worked the same shifts. She described Bogle as "[p]olite, always on time, willing to work always" and "[a] very nice employee. Very nice person." To her knowledge, Bogle had never exhibited any violent behavior or threatened any customer or employee, and she never had a problem with him.

Steve Tacabo (Tacabo), a general manager at the restaurant, described Bogle as a "very good" employee. On February 23, 2003, however, he gave Bogle a written warning after verbally counseling him "numerous times" for being late.

In May or June 2003, Bogle got a tattoo on his right forearm with the words "FEAR ME" in upper case. Carrasquillo advised him to remove the tattoo or leave the job. Bogle told her that he would need time to get the money to remove it. When Carrasquillo told Tacabo about the situation, he suggested that Bogle cover the tattoo so it would not be visible.

According to Tacabo, he objected to the tattoo, ordered Bogle to remove it and, until then, to cover it. Despite three deadlines imposed by Tacabo, Bogle never removed the tattoo. Instead, he concealed it with "something like a tennis band." Tacabo did not fire him, however, because Bogle worked in the kitchen, had no contact with the customers, was an excellent employee, and hid the tattoo. Carrasquillo confirmed that Bogle always covered the tattoo when he worked with her. Bogle also usually wore a large diamond earring in each ear, but removed them at work.

Between 5:00 and 6:00 p.m. on Sunday, October 5, 2003, Dixon arrived at the restaurant to celebrate his daughter's second birthday. Garris also arrived with his fiancé and one-year-old daughter. Among the other attendees were Natalia Frasier (Natalia), the mother of Dixon's daughter; Melissa Dixon (Melissa), Dixon's mother; and Lacretia Dixon (Lacretia), Dixon's sister.

While waiting for the party to begin, plaintiffs went to the restroom after which they met Natalia and Lacretia in the hallway. Dixon noticed two employees walking down the hall, each carrying four or five empty pizza boxes. As a "joke," Dixon tapped the boxes carried by the man in front who later was identified as Bogle. According to Dixon, the boxes did not tip or fall, and he and Bogle "laughed it off" as did Lacretia and Natalia. Bogle then continued to walk past them down the hallway.

Within seconds, as plaintiffs started to walk towards the party area, they heard two people arguing. Both men turned around and walked back down the hall where Dixon saw Bogle and his sister, Lacretia, "having a shouting match." Garris heard Bogle tell Lacretia to "[s]uck my dick, bitch." Lacretia also testified that Bogle called her a bitch, but she thought she "might have said something to him first."

Garris told Lacretia to stop arguing and asked Bogle to leave them alone, saying: "Just go ahead, get away from me," and "We're not going to fight you in your place of work." According to Garris, Bogle responded by saying that he would not fight him, but would "fucking stab" him.

After an employee told her about the argument, the manager-in-training, Jamie Portillo (Portillo), went into the hall, told Bogle and the customers to calm down, and pulled Bogle into the kitchen. Plaintiffs and the two women proceeded to the showroom with Dixon in the lead. The birthday party still had not started. Neither plaintiff reported the incident.

Portillo and Tyesha Wilson (Wilson), who worked as a hostess at the restaurant, saw Bogle pick up a knife from a cutting table in the kitchen and walk towards the party area. The "bone knife" was about ten inches long with a black handle and thin silver blade of the type used to cut sandwiches. As Dixon was walking back to the party, he saw Bogle walking towards Garris with his hand behind his back. Dixon believed that Bogle left the kitchen within "[m]aybe one minute" of the incident in the hallway. Garris also believed that the sequence of events happened "pretty quickly."

Garris and Bogle began to argue. When Bogle raised his right hand from behind his back, Garris saw the knife and punched Bogle causing him to stumble. As Bogle recovered, Dixon tried to restrain him, but Bogle reached over Dixon's shoulder and stabbed him in the back left shoulder. At that point, Dixon "backed off of him" and walked over to his sister, Lacretia, who called the police on her cell phone.

After the stabbing, Garris tried to get the knife which had fallen onto the floor, but Bogle had already retrieved it. Garris testified he threw a chair at Bogle, who dropped the knife, and Bogle "picked up a chair and he threw it at [Garris's] face." The chair struck Garris in his right elbow and ribs. Bogle then ran into the kitchen.

When Dixon's mother walked over to the kitchen area to find the manager, she told Bogle that he had stabbed her son. Bogle then raised the pizza cutter up at her and said: "[D]o you want some, too"? Dixon's mother "realized he wasn't playing," so she walked outside. After getting his jacket, bag and boots, Bogle left the restaurant through the rear door.

Carrasquillo, who was on duty that night, testified she was taking care of customers in the game room when Portillo told her about the stabbing. Carrasquillo called the police and Tacabo. She asked Myeesha Nicole Meeks (Meeks), who worked as a cashier, to get the knife on the showroom floor so no children would get hurt. After Meeks recovered the knife, she took it to the kitchen, and put it into a garbage can. At that point, Wilson went into the kitchen and asked about the knife. After Meeks told her where it was, Wilson retrieved it, washed it off, and threw it into the garbage can next to the showroom in an effort to hide it. Wilson then left the restaurant.

As Garris held Dixon's shirt on the stab wound to stop the bleeding, a patrolman arrived at the restaurant, and plaintiffs were transported by ambulance to a hospital for x-rays. A doctor closed Dixon's incision with six or seven stitches. Dixon received a prescription for pain medicine, and he recalled the doctor telling him he was lucky that the knife did not puncture a vital organ. The x-rays of Garris's elbow and ribs showed no fractures. Both men left the hospital around 5:30 or 6:00 a.m. the next morning.

Dixon stayed in bed for a day with "very, very sharp pain," and he missed "one or two days from work." He returned to his landscaping job because he could not afford to stay home. About two weeks later, a doctor removed the stitches. Dixon continued to perform light-duty work for about a month until his wound healed.

Garris also stayed home for a day after the incident. Although he had extreme pain in his ribs and difficulty breathing, Garris returned to his plumbing job because, like Dixon, he needed the money.

Detective Devine, the detective assigned to the case, interviewed several of the restaurant's employees including Meeks, Wilson, Portillo, and Carrasquillo, and they were fully cooperative. He also spoke to Romero, a manager who was not present at the time of the incident, who provided a description of Bogle. Devine interviewed Dixon and Garris as well. The police never recovered the knife used in the attack.

On October 13, 2003, Devine arrested Bogle. After being advised of his Miranda rights, Bogle gave his version of the incident in a statement which Devine read into the record. Bogle did not deny the stabbing, but explained that: (1) he put the "bread knife" which he was using to make sandwiches into his pocket before he took the pizza boxes to the garbage; (2) he went into the showroom to talk with plaintiffs so he would not lose his job; (3) he did not intend to kill or hurt anyone he "just reacted," and (4) when asked why he stabbed the victim, Bogle replied: "To defend myself."

According to Devine, after Bogle was arrested, he either pled guilty or was convicted of assault a disorderly persons offense. In addition, Detective Devine's testimony included the following:

Q. And you indicated you had a . . . criminal history search on Mr. [Bogle]. Correct?

A. Correct.

Q. What did that conclude?

A. No history.

Q. Never been arrested?

A. Correct.

Q. How about during the cour[se] of your investigation of Mr. [Bogle] with the Chuck E. Cheese managers and employees? Where you able to ascertain whether he had additional trouble there as an employee, violence, anything of that nature?

A. No, he didn't have a history.

Q. No history of what?

A. Of . . . violence or anything.

At trial, Dixon testified he still got sore at times in certain weather or when performing strenuous work. He felt the incident made him overprotective and defensive, and he testified he continued to have trouble dealing with the fact that he could have died on his daughter's birthday. He preferred to stay home after work and take care of his daughter. For a few months after the attack, Dixon had nightmares and difficulty sleeping. He saw a psychiatrist but did not return because he felt uncomfortable and did not want to take the medication the doctor suggested to help him sleep.

His father, Daniel Dixon, testified his son lived at home in the basement until about a month before the trial. He cleaned his son's wound, changed the bandages, and checked on him at night when Dixon woke up screaming. He confirmed that his son and Garris did not play basketball anymore or go out together with their daughters. Dixon's mother testified that her son still "breaks down" and cries when he talks about the stabbing or hears other people talking about it.

On May 20, 2005, at his attorney's request, Dixon saw Lee Hindin, M.D., a clinical psychiatrist. Dixon told Dr. Hindin the stabbing made him "[j]umpy, less likely to trust people" and more likely to protect himself at work. At trial, Dr. Hindin described Dixon's demeanor during the interview as spontaneous and genuine. He believed Dixon had suffered from acute posttraumatic stress disorder during the first three months after the stabbing, with symptoms such as "[r]ecurring intrusive thoughts of the events . . . heightened startle response," sleep difficulty, and persistent anxiety. While some of these symptoms had persisted, Dr. Hindin testified they had gotten less intense over time. According to Dr. Hindin, the stabbing is

something that happened that's a part of him. What will make it come out at some point in the future, we can't tell. Certain circumstances might be more likely to bring back those memories and feelings. They might never come out again, and they might come out more frequently at certain times during certain stressful periods in his life in the future, and there's no real way to know.

Garris also testified he felt depressed after the incident and did not see Dixon as much. Like Dixon, he preferred to stay at home and take care of his daughter when he was not at school or work. He felt guilty that Dixon got hurt defending him. Garris said his pain persisted for approximately two weeks after the attack.

In points one and two of their appellate brief, plaintiffs contend the court erred in dismissing their claims for punitive damages. They argue there was sufficient evidence for the jury to find defendant's actions were wanton and willful based on its reckless disregard of a known risk and its ratification of the concealment of evidence.

They also contend that punitive damages were justified based on their prima facie tort claim, and the presence of "exceptional circumstances" arising from defendant's "egregious breach of duty to plaintiffs as business invitees--claiming safety while creating and rewarding danger."

Finally, plaintiffs contend defendant should be held jointly liable for the intentional assault by Bogle and that defendant through the actions of Meeks and Wilson assisted Bogle in "one continuous criminal transaction." Thus, they argue that the court misapplied the standard for involuntary dismissal as set forth in Rule 4:37-2(b) because the evidence could sustain a judgment in their favor. We do not agree.

The court dismissed plaintiffs' punitive damages claims arising from the alleged wanton and willful conduct, including counts four (wanton and willful disregard), seven (reckless infliction of physical harm and emotional distress) and eight (prima facie tort). It also dismissed count six, ruling there was no separate cause of action for ratification.

A. Wanton and Willful Disregard

Plaintiffs contend there was ample evidence for the jury to consider their claims of punitive damages because defendant's actions were wanton and willful in two respects: (1) it knew that Bogle was a hazard to its patrons but did not take reasonable steps to protect them; and (2) it knew that certain employees concealed evidence but rewarded them.

After giving plaintiffs an opportunity to make their proofs, the court ruled there was no evidence from which a reasonable finder of fact could conclude defendant's behavior was wanton and willful. It rejected plaintiffs' arguments that Bogle was "an employee [who] could not be controlled, [and who] was going to do whatever he wanted, despite whatever the general manager, his boss, said." Instead, the court found that Bogle was defiant only "[o]n one subject." It explained:

There's no testimony that this person [Bogle] was unruly or defiant in any way, other than getting a tattoo that was against the rules and failing to remove it or maybe even failing to cover it up. So if you want to argue that he was defiant in someway, with regard to that he was, arguably.

The court also rejected plaintiffs' argument that the actions of Meeks and Wilson after the stabbing were a reflection of defendant's attitude. Instead, it found that the employees' actions were based on their feelings for the perpetrator, and were clearly not within the scope of their employment or done at defendant's behest. The court further found the employees' behavior did not reflect in any way on defendant's attitudes when it hired or retained Bogle, and was irrelevant to the remaining causes of action.

At the close of a plaintiff's case, a defendant "may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-2(b). The standard of review of a trial court's decision on a motion for involuntary dismissal at the close of a plaintiff's case is the same evidential standard which governs a motion for judgment at the close of all the evidence, Rule 4:40-1, and a motion for judgment notwithstanding the verdict, Rule 4:40-2(b). Verdicchio v. Ricca, 179 N.J. 1, 30 (2004). The test is "whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in

. . . favor' of the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (quoting R. 4:37-2(b)) (alteration in original); see also Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 211 (App. Div. 1996).

The motion must be denied "if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ." Dolson, supra, 55 N.J. at 5. The court's concern is not "the worth, nature or extent . . . of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6.

The Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17 (the Act), provides that punitive damages may be awarded to a plaintiff only if he or she "proves, by clear and convincing evidence, that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed." N.J.S.A. 2A:15-5.12(a). To determine whether punitive damages should be awarded, the Act requires the court to consider all relevant evidence, including: "(1) The likelihood . . . that serious harm would arise from the defendant's conduct; (2) The defendant's awareness of . . . the serious harm at issue . . . ; (3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) The duration of the conduct or any concealment of it by the defendant." N.J.S.A. 2A:15-5.12(b)(1)-(4). Under the Act, "'[a]ctual malice' means an intentional wrongdoing in the sense of an evil-minded act." N.J.S.A. 2A:15-5.10. "'Wanton and willful disregard' means a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission." Ibid.

Punitive damages are limited to "'exceptional cases . . . as a punishment of the defendant and as a deterrent to others.'" Pavlova v. Mint Mgmt. Corp., 375 N.J. Super. 397, 404 (App. Div.) (quoting Di Giovanni v. Pessel, 55 N.J. 188, 190 (1970)) (alteration in original), certif. denied, 184 N.J. 211 (2005). They are awarded when the wrongdoer's conduct is particularly egregious, and at the discretion of the fact-finder. Maul v. Kirkman, 270 N.J. Super. 596, 619-20 (App. Div. 1994). To warrant the imposition of punitive damages, there must have been an intentional wrongdoing in the sense of an "'evil-minded act,'" or the defendant's conduct must have been "'accompanied by a wanton and willful disregard of the rights of another.'" Smith v. Whitaker, 160 N.J. 221, 241 (1999) (quoting Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984)). An award of punitive damages, however, "'must bear some reasonable relation to the injury inflicted and the cause of the injury.'" Lockley v. Dep't of Corr., 177 N.J. 413, 427 (2003) (quoting Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 338 (1993)).

Plaintiffs first contend they satisfied the Act with evidence defendant: (1) ignored Bogle's "FEAR ME" tattoo; (2) continued to retain him in its family restaurant knowing his presence posed a risk to its patrons; (3) recklessly disregarded the risk by instructing Bogle to cover up the tattoo; and (4) ignored his refusal to comply with repeated instructions to remove the tattoo. They also contend defendant hired Bogle without references and with multiple false social security numbers. The record, however, does not contain any evidence to suggest defendant acted with the degree of "actual malice" or "wanton and willful disregard" required under the Act.

To the contrary, the assistant and general managers described Bogle as a "very nice," "very good" and "excellent" employee. When asked to remove the tattoo, Bogle did not object but asked for time to raise the money to pay for its removal. In the meantime, at his manager's request, Bogle concealed the tattoo with "something like a tennis band" so it would not be visible. According to Tacabo, Bogle "was religious in putting a band to cover it, and that sufficed for me." The other managers knew about the tattoo and enforced the no-visibility requirement. Carrasquillo confirmed that Bogle covered the tattoo when he worked with her. Although Bogle did not meet the three deadlines for its removal, there is nothing in the record to suggest he refused on principle to do so. There also is no evidence to contradict Tacabo's testimony that Bogle "worked in the kitchen. He had no contact with any guests. . . . in the dining rooms." Additionally, there was no evidence Bogle ever exhibited any violent behavior or threatened any customer or employee prior to the incident with plaintiffs. Nor did he have any criminal history of violence.

Moreover, there is insufficient evidence in the record to demonstrate defendant acted in reckless disregard of risks to its patrons when it hired Bogle without references and a social security number. Although the application requested the names of two references, employment was not contingent on this information. The application also expressly stated the furnishing of a social security number was voluntary. While it appears undisputed that Bogle subsequently submitted two fraudulent social security numbers, the record is devoid of any testimony as to when, why and to whom these numbers were submitted.

Second, plaintiffs contend they satisfied the Act because of defendant's acts of concealment. N.J.S.A. 2A:15-5.12(b)(4). They argue defendant (1) concealed the violent nature of its restaurant while promoting a "safe family environment," (2) instructed Bogle to conceal his tattoo, and (3) rewarded its employees who concealed evidence of the attack.

Nevertheless, there was no evidence that defendant's conduct involved acts of deception or concealment. Rather, defendant obtained handwritten statements from Meeks and Wilson about the incident, immediately suspended Wilson pending further investigation, and cooperated with the police. Indeed, Detective Devine testified that Tacabo, Romero, Carrasquillo, and Portillo were fully cooperative and did not hinder his investigation in any way. Plaintiffs, therefore, failed to show that defendant acted with wanton and willful disregard of their safety. N.J.S.A. 2A:15-5.10.

Plaintiffs rely on La Bruno v. Lawrence, 64 N.J. Super. 570, 577 (App. Div. 1960), certif. denied, 34 N.J. 323 (1961), to argue that defendant "compounded the felony" by continuing to pay Meeks and Wilson as a reward for their cover-up of evidence. In La Bruno, the court found that the defendant-surveyor's initial act of trespass by misplacing property-line stakes did not justify a punitive damages award. Id. at 576-77. However, it found his conduct afterwards including "his stubborn refusal to examine his own prior survey and to correct his alleged error" demonstrated a "willful and wanton" disregard of the plaintiffs' property rights, and the jury justifiably awarded punitive damages against him. Id. at 577. However, unlike the facts in La Bruno, there is nothing in the record below to suggest defendant's overall conduct and attitude after the incident provided a proper basis for a similar award.

Plaintiffs also argue they are entitled to punitive damages because count four of their complaint encompassed the intentional tort of recklessness. Recognizing that courts in New Jersey have not "squarely addressed" the viability of "recklessness" or "willful and wanton misconduct" as a cause of action, plaintiffs rely on the recognition of this tort in other jurisdictions. For example, plaintiffs cite Advanced Fin. Servs., Inc. v. Associated Appraisal Servs., Inc., 830 A.2d 240 (Conn. App. Ct. 2003), to support their position that: (1) the tort of recklessness was a valid cause of action; (2) the alleged harm was beyond negligence or gross negligence; and (3) the tort was a basis to award damages under New Jersey law. In Advanced Fin. Servs., however, the appeals court awarded punitive damages to the plaintiff for violation of a Connecticut statute where the evidence revealed a "reckless indifference to the rights of others or an intentional and wanton violation of those rights." Id. at 250 (internal quotations omitted). That case, therefore, is factually distinguishable. Here, the evidence did not support plaintiffs' claim that defendant was recklessly indifferent to the possibility that plaintiffs might be the victims of violence, and the court did not err in dismissing plaintiffs' claims for wanton and willful disregard of a known risk and acts of concealments.

B. Ratification

The trial court concluded there was no cause of action for ratification because there was nothing in the testimony which indicated Bogle, Meeks, or Wilson were acting in the course of their employment with regard to the stabbing or the actions taken afterwards to conceal the knife. On appeal, plaintiffs contend punitive damages were justified based on defendant's ratification of the destruction of evidence. They argue defendant "impliedly adopted . . . Bogle's actions by approving of its employees' concealment and destruction of evidence against Bogle (and not even firing Bogle on the basis of his violence)."

"Ratification arises when one party, claiming that the other had no authority to act on his behalf, is found to have known of and assented to the allegedly unauthorized actions of the other." Erlich v. First Nat'l Bank of Princeton, 208 N.J. Super. 264, 303 (Law Div. 1984) (holding ratification was not a defense to a malpractice claim). Here, there is no basis in the record on which a jury reasonably could find that Bogle, Meeks or Wilson acted within the scope of their employment either before or after the stabbing, or that defendant ratified their actions by allowing them to return to work. See Zullo v. Cent. R.R. Co. of N.J., 9 N.J. Super. 49, 50 (App. Div. 1950) (holding court erred in instructing jury to consider punitive damages where there was no evidence that the employer participated, expressly or impliedly, in the assault and battery by its employee, either before or after it was committed).

Plaintiffs rely on Gindin v. Baron, 16 N.J. Super. 1, 5-7 (App. Div. 1951), where the jury found that the defendant-employer ratified an assault by its employee by having stated the assault was a "'good thing'" that would keep the competitor away from its customers. Plaintiffs, however, neglect to mention the court in Gindin concluded the proofs justified the finding that the assault was committed by an employee in furtherance of his master's business and within the scope and limits of his employment, and the employer expressly or impliedly authorized or ratified the wrong. Id. at 7. That was not the case here.

Because there are no facts in the record to establish defendant knew of, and assented to, the actions of Bogle's co-employees, plaintiffs' ratification claim is unpersuasive.

C. Prima Facie Tort

Plaintiffs also contend the court erred in granting defendant's motion to dismiss their prima facie tort claim. They argue the court's determination was erroneous factually and as a matter of law. The court dismissed the prima facie tort claim on the basis that it dealt with the unsupported allegation of "wanton and willful" behavior. We agree.

In Taylor v. Metzger, 152 N.J. 490, 523 (1998) (internal quotations omitted), the Court recognized that a prima facie tort cause of action encompassed "intentional, willful and malicious harms" that fell within gaps of the law. However, it warned against invoking a prima facie tort "when essential elements of an established and relevant cause of action are missing." Ibid. (rejecting use of prima facie tort claim to overcome deficiencies in allegations of racial harassment to state a claim under the Law Against Discrimination or a claim of intentional infliction of emotional distress). Thus, a "[p]rima facie tort should not become a 'catch-all' alternative for every cause of action which cannot stand on its legs." Ibid. (internal quotations omitted).

In the present matter, plaintiffs had other causes of action which targeted their allegations of wanton and willful conduct. Plaintiffs acknowledge this fact in their brief, stating they set forth defendant's willful and wanton misconduct in great detail elsewhere and "if no other cause of action applied to the willful misconduct, then prima facie tort did." Thus, the trial court did not err in dismissing plaintiffs' prima facie tort claim because it was not a gap-filler. As our Court recently stated: "[T]he availability of the prima facie tort doctrine is limited exclusively to those instances of intentional and culpable conduct unjustified under the circumstances that, as a threshold matter, do not fall within a traditional tort cause of action." Pulaski Constr. Co. v. Air Frame Hangars, Inc. ___ N.J. ___ (2008) (slip op. at 2).

D. Exceptional Circumstances

Plaintiffs also contend that punitive damages were appropriate due to defendant's egregious breach of duty owed to them as business invitees by claiming the restaurant was a safe family environment. Specifically, they argue defendant exposed its customers including families with small children to a "defiant employee whose known tattoo was proof of his dangerous nature," and its reckless disregard for their safety constituted exceptional circumstances justifying a punitive damages award. We do not agree.

Plaintiffs rely on Sandler v. Lawn-A-Mat Chem. & Equip. Corp., 141 N.J. Super. 437, 449 (App. Div.), certif. denied, 71 N.J. 503 (1976), to argue that punitive damages may be awarded in "exceptional circumstances dictated by the nature of the relationship between the parties or the duty imposed upon the wrongdoer." The full quote, however, reads: "In the absence of exceptional circumstances . . . the concept of punitive damages has not been permitted in litigation involving breach of a commercial contract." Ibid. The Sandler court also stated: "Where the essence of a cause of action is limited to a breach of such a contract, punitive damages are not appropriate regardless of the nature of the conduct constituting the breach." Ibid. That case involved a commercial transaction where the plaintiffs' grievance was founded on "the breach of contract between the parties a contract which create[d] no special relationship or duty beyond that arising out of any commercial transaction." Id. at 451. The court determined that the litigation was a result of a series of disputes with each party seeking to advance its own interests, and concluded such facts did not warrant a finding of malicious wrongful conduct. Id. at 451-52. Thus, we do not find plaintiffs' argument persuasive.

Plaintiffs also contend the court erred by dismissing their claims of negligent hiring, premises liability, respondeat superior, and negligent supervision. Once again, we disagree.

A. Negligent Hiring

Plaintiffs argue the court erred by dismissing their cause of action for negligent hiring because there was sufficient evidence to require submission of this claim to the jury. They point to the facts that defendant: (1) hired Bogle as an employee based on a "sketchy" application form which did not ask for any personal references and had virtually no "blanks" completed; (2) failed to perform a proper investigation, including a criminal background check which, at the very least, would have revealed that Bogle had submitted two different social security numbers; (3) took no action to discover the false numbers, which would have constituted grounds for Bogle's termination; and (4) knew or should have known of Bogle's dangerous propensities. Thus, plaintiffs argue that defendant's failure to follow its own hiring procedures was a proximate cause of their injuries.

Based on plaintiffs' proofs, the court found there was sufficient evidence to support a finding that defendant had been negligent in the hiring process. It based its finding on facts showing defendant did not follow its own hiring procedures with respect to Bogle. However, the court found even if defendant was negligent in hiring Bogle, there was no evidence to suggest its negligence was a proximate cause of plaintiffs' injuries. Other than the fact Bogle did not have a valid social security number, the court did not find anything in the record which would allow a jury to connect the negligence to the occurrence of the injuries. It rejected plaintiffs' argument that the absence of character and employee references were "red flags," stating that such a view would require employers only to hire people with prior work experience. The court also rejected plaintiffs' argument that the incident would not have taken place if defendant had discovered Bogle lied about his social security number and refused to hire him. The court, therefore, ruled as a matter of law that a reasonable trier of fact could not connect the negligent hiring with the occurrence of plaintiffs' injuries.

The New Jersey Supreme Court has expressly recognized that an employer who negligently hired or retained an incompetent, unfit, or dangerous employee might be liable to a third party whose injury was proximately caused by the employer's failure to exercise due care. Mavrikidis v. Petullo, 153 N.J. 117, 133 (1998); Di Cosala v. Kay, 91 N.J. 159, 174 (1982). The tort "addresses the risk created by exposing members of the public to a potentially dangerous individual." Di Cosala, supra, 91 N.J. at 172. The employee conduct, however, does not need to be within the scope of employment. Id. at 174. Instead, "the duty owed is properly to be determined by whether the risk of harm from the dangerous employee to a person such as the plaintiff was reasonably foreseeable as a result of the employment." Ibid.

To hold an employer liable for negligent hiring, the plaintiff must prove: (1) the employer knew or had reason to know of the employee's dangerous characteristics and could reasonably have foreseen that such qualities created a risk of harm to other persons; and (2) through the employer's negligence in hiring the employee, the employee's incompetence, unfitness or dangerous characteristics proximately caused the injury. Id. at 173-74, 177 (recognizing that employer, who hired employee who possessed and used guns, had duty to protect the public and the injured minor from foreseeable physical danger presented by firearms kept at employee's living quarters). See also Lo Bosco v. Kure Eng'g Ltd., 891 F. Supp. 1020, 1034 (D.N.J. 1995) (dismissing tort of negligent hiring based on alleged misrepresentations where the plaintiff did not present evidence that the defendants knew of employee's propensity to commit fraud or that the allegedly fraudulent acts were foreseeable); Johnson v. Usdin Louis Co., 248 N.J. Super. 525, 529 (App. Div.) (holding no duty owed by employer to protect public or specific victims because there was no evidence that the employer knew the employee "possessed dangerous characteristics" and would use nitric acid taken from job site to assault family members), certif. denied, 126 N.J. 386 (1991).

In Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 29, 30-31 (App. Div. 1997), a case cited by plaintiffs, the court reversed the dismissal of a negligent hiring claim, finding that a reasonable fact-finder could have concluded from the evidence that the defendants failed to exercise due care in hiring a live-in companion and that their alleged negligence proximately caused harm to the person who was the focus of the care-providing agreement. In that case, the plaintiff-wife hired "Live-In Companions" to provide a caregiver for her disabled husband when she went on a trip. Id. at 25. While she was away, the companion stole from the family and abandoned the husband. Ibid. The family asserted a claim for negligent hiring, alleging the nursing company did not make an adequate inquiry into the caregiver's background before hiring him. Id. at 29-30.

The court acknowledged that at the time of hiring, the companion's criminal record was not accessible to the general public. Id. at 31. It also questioned whether the defendants could have obtained information about the companion's drug convictions from the Division of Motor Vehicles, noting there was no evidence whether or not those records contained such information. Id. at 32. The court, however, concluded an employer's liability was not predicated solely on failure to investigate an applicant's criminal history, but on the totality of circumstances. Ibid. Based on the critical nature of the work performed by the companion, the court held that a trier of fact could have found the application form was insufficient to yield adequate information about the applicant's background, criminal history and experience, and a proper investigation would have disclosed the companion's propensity to violate the law and his general lack of fitness to perform his duties. Id. at 33.

Unlike Lingar, there is no proof in the record before us that defendant knew or should have known of Bogle's dangerous propensities with the sole exception of his "FEAR ME" tattoo. Specifically, there was no evidence of any prior work history of an invalid nature, any prior criminal history, any pending charges, or bad references. There also was no evidence of any violent tendencies after Bogle got the tattoo. Thus, there was nothing in the record to suggest to the jury that Bogle had a propensity for violence or lacked fitness to perform his job. Accordingly, even if the jury found defendant had a duty to the general public to follow its own hiring procedures and failed to do so, there are no facts to suggest that through defendant's negligence, Bogle's incompetence, unfitness or dangerous characteristics was the proximate cause of plaintiffs' injuries. Therefore, we affirm the trial court's decision to dismiss the claim of negligent hiring.

B. Premises Liability

Plaintiffs next contend the court erred by dismissing their claim of premises liability. They argue defendant breached its general duty to them as business invitees to provide a reasonably safe place to have a children's party. Again, we do not agree.

The court dismissed the premises liability claim on two grounds: (1) there was no expert testimony to support its admissibility; and (2) even if an expert was not necessary, the evidence did not support the cause of action. The court defined premises liability to include the property's physical condition as well as security issues on the day of the incident. For example, "[p]remises security has to do with who you have for a security guard, do they make rounds, do they make inquiries, do they have a presence? Those kinds of things." The court found no evidence that defendant did anything wrong or failed to do something that it should have done with regard to security.

Under the common law, a landowner owes an increasing duty of care depending on whether a visitor is a trespasser, licensee, social guest, or business invitee. Parks v. Rogers, 176 N.J. 491, 497 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34 (1993). In New Jersey, whether a landowner owes a duty of reasonable care to a person injured on the premises and the extent of that duty are based on several factors, including "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise reasonable care, and the public interest in the proposed solution." Hopkins, supra, 132 N.J. at 439. The determination of whether a person owes a duty of reasonable care to another is "very fact-specific" and is the responsibility of the courts. Ibid. The determination of whether a business owner has breached that duty is a jury question. Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 534 (App. Div.), certif. denied, 151 N.J. 77 (1997).

A store owner or proprietor of a business who invites the public owes a duty to those who enter the premises of reasonable care "to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982). "If [a] reasonably prudent person would foresee danger resulting from another's voluntary criminal acts, the fact another's actions are beyond [a] defendant's control does not preclude liability." Id. at 276. The crucial factor is the foreseeability of the risk that criminal acts of others would cause harm. Ibid.

Commercial shopkeepers, like landlords, must exercise due care under all the circumstances to provide adequate security to protect their customers against foreseeable criminal conduct. Ibid.; see Trentacost v. Brussel, 82 N.J. 214, 222-23 (1980) (holding criminal assault on tenant in apartment hallway was foreseeable result of landlord's negligence in failing to install a lock on the front entrance).

In Butler, supra, 89 N.J. at 274, a customer sued the defendant-store owner for personal injuries and lost wages sustained in a criminal attack in the store's parking lot. In response to seven prior muggings the preceding year, the store hired off-duty police officers. Ibid. At the time of the attack on the plaintiff, however, the lone security guard was inside the store. Id. at 274-75. The jury found the store owner did not exercise reasonable care, but the trial court subsequently granted the defendant's motion for judgment notwithstanding the verdict. Id. at 275. The appellate court reversed, holding the defendant owed a duty to protect its customers from foreseeable criminal acts. Ibid. The Supreme Court agreed, holding it was reasonable for the jury to determine that the store provided "an insufficient response in light of the known, repeated history of attacks on the premises." Id. at 280. The Court concluded the business invitor was in the best position to provide warnings or adequate protection for its patrons, and public interest required a reasonably safe place to shop. Id. at 284. It reasoned:

The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation. The measure of that care has been described as "due care under all the circumstances."

[Id. at 275-76 (quoting Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964)) (citations omitted).]

However, to guard against making a shopkeeper liable for all crimes on its premises, the Butler Court adopted the Restatement (Second) of Torts 344 comment (f) (1965), which stated:

Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows and has reasons to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

In Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507 (1997), the Court applied the totality of the circumstances standard to decide when criminal conduct was "'likely to be done.'" (Quoting Restatement (Second) of Torts 344(b) (1965)). That standard required a court to consider "all prior criminal incidents occurring on the landowner's premises and adjacent properties, whether similar or not, as well as other types of evidence such as the nature, location, condition, and the architectural design of the landowner's property." Id. at 509. In that case, a customer was abducted from the defendant's shopping center parking lot and murdered. Id. at 500. The Court held that the criminal act was foreseeable given the occurrence of prior criminal acts of lesser degree in and around the lot even through there had never been a prior abduction. Id. at 500, 503, 516-17.

The evidence persuaded the Court that the defendant owed the plaintiff a legal duty of care to provide some degree of security in the parking lot, and it was reasonably foreseeable that the plaintiff could suffer some injury in the unsecured lot. Id. at 519-20. The duty to provide security could include a security guard, security system or warnings depending on the circumstances. Id. at 520; see Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 19-20 (App. Div. 2001) (holding, after balancing and weighing various factors, that the defendant owed the same duty to the plaintiff-employee as it owed to patrons to provide security for the area around its facility based on the nature of the defendant's business and its recognition of the risk); Morris, supra, 300 N.J. Super. at 535-36 (applying totality of circumstances, including expert testimony about the inherent risk of violent crime in the convenience store business and police reports documenting prior robberies at similar stores in other central New Jersey towns, to find substantial evidence as to foreseeability of a criminal incident); Gaita v. Laurel Grove Cemetery Co., 323 N.J. Super. 89, 96 (Law Div. 1998) (applying totality of the circumstances test to find cemetery owed duty to plaintiff-visitor as business invitee to provide some security, and that the attack by a third party in a remote area was foreseeable).

Here, under the totality of the circumstances, plaintiffs contend the violence against them was foreseeable. Specifically, they claim: (1) there were more than 100 prior incidents at the restaurant "including at least five assaults, five (other) fights, and ten disputes"; (2) "Bogle failed to qualify for employment"; and (3) management was aware of his tattoo. Despite the risks, plaintiffs allege that defendant did not employ a security guard at the restaurant, did not post any warnings, and did not prevent Bogle from using knives or interacting with the public. Instead, defendant "lulled patrons into a false sense of security by holding itself out as an environment safe enough for a child." Plaintiffs also argue the court erred by dismissing their premises liability claim based on its mistaken belief that expert testimony was necessary.

We agree with plaintiffs that expert testimony was not necessary. "There is no general rule or policy requiring expert testimony as to the standard of care." Butler, supra, 89 N.J. at 283. The test is whether the matter was "so esoteric that jurors of common judgment and experience [could not] form a valid judgment as to whether the conduct of the party was reasonable." Ibid. Thus, although expert testimony may have assisted the jury, its absence was not fatal. See, e.g., Scully v. Fitzgerald, 179 N.J. 114, 127 (2004) (holding landlord's duty of reasonable care was not of an esoteric nature because jury did not need a fire expert to explain the dangers of throwing lit cigarettes into a pile of papers); Vargo v. Nat'l Exch. Carriers Ass'n, Inc., 376 N.J. Super. 364, 380-81 (App. Div. 2005) (holding expert testimony was necessary to show that laboratory's actions breached the standard of care).

Nevertheless, we also agree with the court below that the evidence did not support a claim for premises liability. Under the totality of the circumstances, there was nothing in the record to suggest defendant's business a family restaurant was inherently at risk for violent crimes or posed a significant risk to plaintiffs. Nor did defendant have a duty to hire a security guard or post warnings in its restaurant. Indeed, the evidence supports the conclusion that Bogle's attack was intentional and that it was not negligent or reckless. Bogle was not the type of predatory third party envisioned in Clohesy, supra, 149 N.J. at 520, and, in fact, had no history of violence from the time of his hiring on January 3, 2000, until the assault on plaintiffs on October 5, 2003. Moreover, when asked to remove the tattoo, the testimony indicates that Bogle agreed to do so as soon as he could raise the money, that he kept the tattoo covered, and that he never displayed any behavior to suggest that he intended to intimidate co-workers or patrons.

As noted in plaintiffs' brief, the police records of "more than 100 incidents" at the restaurant were not introduced into evidence. The court ruled that these records were inadmissible under Rule 4:17-7 because they were submitted out of time and were not accompanied by a certification that the information sought was not "reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." R. 4:17-7. Thus, the court correctly found these documents inadmissible, and there was no competent evidence to support plaintiffs' argument that the assault was foreseeable based on prior criminal activities at the premises. Accordingly, we affirm the trial court's decision to dismiss the premises liability claim.

C. Respondeat Superior

Plaintiffs also contend the court erred by dismissing their claims of respondeat superior. Quoting the Restatement (Second) of Agency 229 (1958), they argue the court should have considered such factors as "time, place, and . . . instrumentality" to find that the actions of Bogle, Meeks and Wilson were within the scope of their employment. Because the stabbing took place on defendant's premises during business hours by an employee wearing his employer's uniform and using one of the "tools" of his trade, plaintiffs argue the imposition of respondeat superior liability was proper under New Jersey law.

The court dismissed the respondeat superior claims based on its finding that there was nothing in the testimony to indicate any of the employees were acting in the course of their employment or in furtherance of their jobs. Because defendant was not responsible for intentional torts or crimes committed by its employees, the court ruled the issue would not go to the jury.

Under the doctrine of respondeat superior, an employer will be held liable to a third party for the torts of an employee if the employee was acting within the scope of his or her employment. Carter v. Reynolds, 175 N.J. 402, 408-09 (2003); Di Cosala, supra, 91 N.J. at 168-69; Hill v. N.J. Dep't of Corr. Comm'r, 342 N.J. Super. 273, 305 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Conduct by an employee is usually within the scope of employment if the conduct is of the kind the employee was hired to perform, "'it occurs substantially within the authorized time and space limits; [and] it is actuated, at least in part, to serve the [employer].'" Di Cosala, supra, 91 N.J. at 169 (quoting Restatement (Second) of Agency 228 (1957)) (first alteration in original). Other factors include:

whether the conduct is of the same general nature as that authorized, or incidental to the conduct authorized; whether the master has reason to expect that such an act will be done; the similarity in quality of the act done to the act authorized; and the extent of departure from the normal method of accomplishing an authorized result.

[Hill, supra, 342 N.J. Super. at 306 (citing Restatement (Second) of Agency 229 (1957).]

Thus, New Jersey courts consider "'the nature of the employment, the duties of the employee, [and] whether the accident occurred in the course of fulfilling some job-related function.'" Carter, supra, 175 N.J. at 411 (quoting Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 A.L.R.5th 174, 174 (1995)). Conversely, if an employee deviates from his or her employer's business and commits a tort while in pursuit of his or her own ends, the employer is not liable. Roth v. First Nat'l State Bank of N.J., 169 N.J. Super. 280, 286 (App. Div.), certif. denied, 81 N.J. 338 (1979).

In determining whether an employer is vicariously liable for the acts of it employees, we have said: "[T]he fact that the tort is negligent or intentional is of no real consequence." Hill, supra, 342 N.J. Super. at 305. An act may fall within the scope of employment although consciously criminal or tortious. Gilborges v. Wallace, 78 N.J. 342, 351 (1978) (holding master liable for conduct not within the scope of employment only if the servant's action advanced "'the employer's business or interests, as distinguished from the private affairs of the servant"' (quoting Restatement (Second) of Agency, 238 (1957))); Gindin v. Baron, 11 N.J. Super. 215, 220 (App. Div. 1951) (reversing judgment dismissing respondeat superior claim because jury might have inferred that the employee's sole motive for assaulting the plaintiff was to serve the welfare of his employer's business). Whether the plaintiff names the actual employee tortfeasors as the defendants in a suit against their employer "is legally irrelevant to [the employer's] liability for their conduct under the doctrine of respondeat superior." Zukowitz v. Halperin, 360 N.J. Super. 69, 74 (App. Div. 2003).

An employer, therefore, may be held liable for its employee's intentional torts when they are "reasonably connected with the employment and so within its scope." Hill, supra, 342 N.J. Super. at 306 (internal quotations omitted); Mason v. Sportsman's Pub, 305 N.J. Super. 482, 497-500 (App. Div. 1997) (holding pub vicariously liable for employee-bouncer's battery of patron because bouncer was acting within scope of employment, battery took place during hours he was employed and within space limits of employment, and ejection of patron served employer's purpose of maintaining orderly establishment). Intentional torts, however, rarely fall within the scope of employment. Schultz v. Roman Catholic Archdiocese, 95 N.J. 530, 535 n.1 (1984).

Plaintiffs cite to Hill, supra, 342 N.J. Super. at 306, to support their argument that the court should not have dismissed their respondeat superior claims. In that case, the plaintiffs argued the court erred in granting summary judgment based on its conclusion that the defendants could not be vicariously liable for the acts of their agents in connection with alleged sexual activities at a juvenile facility. Id. at 305. We reversed and remanded for a new trial after finding a genuine issue of material fact as to whether the defendants were acting within the scope of their employment. Id. at 307. Thus, the court in Hill did not hold the employer liable for the torts of its employees under the circumstances. Id. at 306-07.

Here, there are no facts suggesting that Bogle's actions were within the scope of his employment. Although Bogle committed the assault at defendant's restaurant during the hours he was employed there, the assault was not the kind of activity he was hired to perform. Bogle was employed to work in the kitchen and his intentional use of defendant's cutlery to stab a restaurant patron was unexpected, unauthorized, and unrelated to his job duties. His acts served no purpose of his employer and, in fact, risked the "welfare" of his employer's business. Thus, Bogle's unlawful conduct was not in any sense related to his employer's interests or needs.

Likewise, the post-incident actions of Meeks and Wilson were not performed within the scope of their employment, but rather were undertaken because they were afraid and wanted to protect Bogle. Their actions also did not further defendant's interest. While Meeks picked the knife off the floor to protect the children at the restaurant, she acted without any authorization when she discarded it in the garbage. Similarly, Wilson's actions in taking the knife out of the garbage, cleaning it, and discarding it were not the kinds of activities that she was hired to perform or that served defendant's best interests. We therefore conclude plaintiffs failed to offer sufficient evidence to show that Bogle, Meeks, and Wilson were acting within the scope of their employment, and we affirm the court's decision to dismiss plaintiffs' respondeat superior claims.

D. Negligent Training and Supervision

Plaintiffs further contend the court erred in dismissing their claim against defendant for negligent training and supervision. They argue that defendant failed to use reasonable care in training and supervising its employees, and that the evidence presented a jury question. In plaintiffs' view, defendant failed (1) to adequately train its employees on the prevention and handling of a crisis, and (2) to closely monitor and control Bogle, whom they describe as a dangerous employee who had "unfettered access" to commercial knives. They further argue expert testimony is not required in a case involving a private employer's liability for violence. Plaintiffs assert they "paid the price" for defendant's negligent supervision. We cannot agree.

The court granted defendant's motion to dismiss the cause of action for negligent training and supervision on two grounds: (1) the lack of expert testimony to establish the standards by which the person would have to be judged; and (2) the lack of evidence to suggest Bogle was inadequately supervised. Instead, the court found defendant's alleged failure to follow-up on certain personnel actions in response to Bogle's lack of cooperation was part of plaintiffs' argument for negligent retention.

Liability may be imposed on an employer who fails to perform its duty to train and supervise employees. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994). "[A] claim based on negligent hiring or negligent supervision is separate from a claim based on respondeat superior." Hoag v. Brown, 397 N.J. Super. 34, 54 (App. Div. 2007). Unlike respondeat superior, this negligence claim "covers acts committed outside the scope of employment." Ibid. An employer, however, is liable for negligent supervision only if all the requirements of an action of tort for negligence exists. Restatement (Second) of Agency, 213(c) comment a (1957). Thus, a person conducting an activity through agents is subject to liability for harm resulting from the agents' conduct if the person is negligent or reckless "in the supervision of the activity." Id. at 213(c).

Because negligence involves a breach of duty of care that causes injury, the issue here is whether defendant's alleged failure to properly supervise and train its employees was a breach of its duty of care owed to plaintiffs which, in turn, was a proximate cause of their damages. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). As noted previously, there is no general rule or policy requiring expert testimony on the standard of care in tort actions. Butler, supra, 89 N.J. at 283. A trial judge has discretion to determine the necessity for expert testimony to enhance the knowledge and understanding of jurors. State v. Griffin, 120 N.J. Super. 13, 20 (App. Div.), certif. denied, 62 N.J. 73 (1972). See e.g., Hoag, supra, 397 N.J. Super. at 56 (holding there was sufficient evidence to create jury question on negligent supervision claim based on employee's extensive disciplinary record and expert opinion that employee would have been terminated if the Department of Corrections had followed accepted agency personnel practices). Here, in our view, the matter at issue was not so esoteric that the jurors could not form a valid judgment without an expert. Butler, supra, 89 N.J. at 283.

In any event, the trial court correctly concluded there was insufficient evidence to support a jury finding of negligent supervision. Bogle worked in the kitchen at defendant's restaurant for more than three years, and plaintiffs offered no evidence that Bogle ever left the kitchen to work in other areas of the restaurant such as the showroom. There also is no evidence of any prior incidence of violence at the restaurant involving Bogle.

Moreover, the record is devoid of any facts to support plaintiffs' contention that defendant was negligent for failing to train its employees in such areas as anger management or incident control. The record, however, does include a document entitled "general security" in which defendant outlined its emergency procedures for dealing with violence on the restaurant's premises. Among other things, the document required employees to "[r]eport all threats of violence, both direct and indirect" to the general manager or manager on duty as soon as possible, and if unavailable, to the regional manager or department head. It also expressly advised employees not to put themselves in danger or try to resolve violent situations. Instead, defendant advised employees to call 911 and "[t]ry to avoid a physical confrontation if possible, but defend yourself or [g]uests if there is an imminent threat of physical harm". Defendant further required employees to "[c]ooperate fully with security, law enforcement, and medical personnel that respond to a call for help or investigate any incident."

Based on the testimonial evidence, these procedures were followed. For example, Dixon and Garris testified that one of defendant's employees attempted to pull Bogle into the kitchen after the initial verbal altercation. While it is true other employees saw Bogle take the knife from the kitchen, there also is evidence that several employees followed him into the showroom and one female employee apparently attempted to get between him and Garris. Moreover, the entire incident happened "pretty quickly"; Dixon thought it took place within the span of "[m]aybe a minute." Because there is no evidence to support a claim of negligent training or supervision, the court below properly dismissed this cause of action.

In its cross-appeal, defendant contends the court erred by denying its motion to dismiss the negligent retention claim based on the totality of the evidence. Essentially, defendant argues Bogle's act of getting a tattoo with the words "FEAR ME" was insufficient by itself to establish that defendant knew or had reason to know of his "unfitness, incompetence or dangerous attributes" or make it foreseeable that he would get involved in an altercation with a customer. Instead, defendant argues the record showed Bogle was an "excellent" worker who never exhibited any violent, threatening or hostile behavior during his three years at the restaurant. Defendant further argues it would create "enormous public policy implications" if any tattoo with "similar statements of bravado" was indicative of a person's violent tendencies, making such person unemployable.

The court found there was ample evidence in the record to support a jury finding for negligent retention. It based its ruling on plaintiffs' arguments that (1) defendant should not have retained Bogle because he was "unruly or defiant" by getting a tattoo that was against the rules and by failing to remove it or completely cover it up, and (2) defendant took certain personnel actions in response to Bogle's "bad attitude" but did not follow up on them.

A court may grant a motion for involuntary dismissal at the close of a plaintiff's case only when the defendant shows the plaintiff has no right to relief based on the facts and the law. R. 4:37-2(b). The test is "whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor' of the party opposing the motion." Dolson, supra, 55 N.J. at 5 (quoting R. 4:37-2(b)) (alteration in original).

In a case alleging negligent retention, the question is whether the employer should have foreseen that the conduct of its employee "unreasonably enhanced a hazard that would be injurious to those coming within [its] range." Johnson, supra, 248 N.J. Super. at 529. In Johnson, an employee used nitric acid taken from his place of employment to assault family members at home. Id. at 527-28. The issue was whether the employer breached a duty owed to the employee's family members. Id. at 527. Among other things, the plaintiff alleged the employer negligently retained the employee "when it knew or should have known of his dangerousness." Id. at 528. The employer appealed from the trial court's refusal to dismiss the complaint, and we reversed, finding there was no basis to impose a legal duty upon the employer because "it was not aware that [the employee] possessed dangerous characteristics." Id. at 529. Thus, the court held that the employer owed no legal
duty even though it had no procedure in place to prevent employees from taking nitric acid home because ordinary human experience and the totality of the circumstances dictated that the employer could not reasonably foresee that one of its employees would take nitric acid from the premises and throw it at someone. Id. at 530.

In contrast, the record below presented sufficient facts and inferences to provide a basis for liability against defendant on the claim of negligent retention. The evidence established that defendant through its employees was aware of Bogle's tattoo and its message, had asked him to remove it, and had failed to take any action when Bogle failed to comply. Thus, it was reasonable for the jury to conclude that, under the totality of the circumstances, defendant should have foreseen its retention of Bogle could result in an unreasonably enhanced hazard to its patrons, including plaintiffs.

While defendant argues Bogle's supervising managers described him as an "excellent" worker, it is clear Bogle's supervisors were aware that he had gotten a tattoo with the words "FEAR ME" on his right forearm approximately three months before the assault. Defendant had a policy against visible tattoos and his supervisors asked him several times to remove it. Thus, there was sufficient evidence for the court to present this question to the jury, and for the jury to conclude defendant's negligent retention of Bogle was a proximate cause of plaintiffs' injuries. Accordingly, the court did not err in denying defendant's motion to dismiss the negligent retention claims.

Defendant also argues the court erred by awarding plaintiffs their medical expenses without consideration of collateral source payments. While it stipulated at trial as to the amount of plaintiffs' medical expenses, defendant contends it never agreed these expenses "were a recoverable element of damages." Because plaintiffs had health insurance at the time of the incident, defendant argues the award gave them a financial "windfall." Specifically, it argues that documentation forwarded by plaintiffs' counsel indicated that Garris's insurance carrier paid all of his medical expenses except for his $25 co-pay, and that Dixon had outstanding bills, which he inexplicably never submitted for payment. Defendant claims it was entitled to a hearing on this issue and that the portion of the order of judgment, which awards "stipulated medical expenses" of $4251 to Dixon and $1605 to Garris must be vacated as a matter of law. Defendant's argument has no merit.

Plaintiffs agree they are not entitled to a windfall despite a transcription error that inadvertently read otherwise. They acknowledge Garris's insurance company paid all of his medical bills except for his co-pay, and the amount of these payments will be credited to the judgment. However, because Dixon had no insurance coverage, plaintiffs acknowledge in their reply brief that his "medical bills will be paid from the judgment proceeds."

Moreover, defendant is not entitled to a hearing on the issue of plaintiffs' medical expenses. After the jury returned a verdict, the court asked defendant's counsel how to resolve the collateral source issue. Defendant's counsel responded that plaintiffs needed to submit documentary proof and that a hearing was not necessary unless there was some contradiction. Defendant did not further object below. Applying the doctrine of invited error, defendant may not argue on appeal that a position it advocated below and that the trial judge adopted at trial was the product of error. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996); Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 296 (App. Div. 2001). The trial court's decision to include the stipulated medical expenses in the order of judgment is therefore affirmed.

Next, defendant contends the court improperly denied its "request for an apportionment of responsibility against third
[-]party defendant, Bogle." It essentially argues that N.J.S.A. 2A:15-5.2 of the Comparative Negligence Act and case law require an apportionment of fault between negligent and intentional tortfeasors. Because Bogle was the principal actor in the intentional tort against plaintiffs, defendant argues that the jury should have been required to assign his percentage of comparative fault as a matter of law.

The court denied defendant's request to direct the jury to assess some percentage of fault against Bogle, concluding the jury could not compare intentional conduct and negligence under these facts. Citing Blazovic v. Andrich, 124 N.J. 90 (1991), the court recognized that New Jersey was a minority jurisdiction which required juries to make these comparisons in most cases. Nevertheless, the court ruled that Blazovic carved out a narrow exception, and it concluded the exception applied. The court explained:

[T]here is an exception, and it seems to me the facts here fit it. This is not something that [defendant] could have prevented once it started. That's not the allegation against you.

You shouldn't have retained this person in your employment, the plaintiff says, because this person had violent tendencies. You should have seen that. He did have violent tendencies. He was a violent person. He committed violence on the plaintiff[s], and that is something that your obligation, as an employer, encompasses, not to hire people who are going to present a danger to the patrons. I think that's the -- that's the way I read the exception, and I agree with you. I haven't had -- found a case that applies the exception either.

"New Jersey law favors the apportionment of fault among responsible parties." Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (the Act), requires the apportionment of fault where "the question of liability is in dispute." N.J.S.A. 2A:15-5.2(a); Boryszewski, supra, 380 N.J. Super. at 374-75. The apportionment of responsibility for a plaintiff's injury is based on "each party's relative degree of fault, including the fault attributable to an intentional tortfeasor." Blazovic, supra, 124 N.J. at 107.

In Blazovic, the plaintiff-patron was injured in a confrontation with other patrons in the parking lot of a restaurant and lounge, and filed a negligence action for physical injuries and economic loss. Id. at 93-94. After the individual defendants settled with the plaintiff, a jury found the plaintiff was negligent for provoking the assault, the restaurant was negligent for failing to provide adequate lighting and security in the parking lot, and the settling defendants had committed intentional assault and battery. Id. at 94. Because the court believed negligent and intentional conduct could not be compared, it instructed the jury to compare only the relative fault of the two negligent parties. Ibid. The Appellate Division modified the judgment with a majority holding the jury verdict was incomplete because it did not apportion a percentage of fault to the intentional tortfeasors. Id. at 95.

The issue before the Supreme Court was whether the Act required the jury to apportion fault among the negligent plaintiff, the negligent restaurant, and the settling defendants whose fault was based on intentional conduct. Id. at 92-93. After reviewing the Act and case law, the Court held "responsibility for a plaintiff's claimed injury is to be apportioned according to each party's relative degree of fault, including the fault attributable to an intentional tortfeasor." Id. at 107. Thus, it held the Act applied to conduct characterized as intentional, and directed the jury to determine the relative percentages of fault between the intentional and negligent tortfeasors. Id. at 111-12. The Legislature apparently accepted Blazovic as correctly interpreting the Act by inserting "negligence or fault" into the 1995 amendments, thereby "'clarifying that the fact-finder must apportion all fault attributable to each party.'" Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 286 (App. Div. 2001) (quoting Steele v. Kerrigan, 148 N.J. 1, 11 n.2 (1997)).

The Blazovic Court, however, recognized a line of cases which precluded the apportionment of fault when the duty of one tortfeasor encompassed the obligation to prevent the specific misconduct of the other. Blazovic, supra, 124 N.J. at 111. Thus, a defendant responsible for security would be precluded from relying on apportionment from the intentional tortfeasor. Ibid. The Court, however, declined to apply the exception in that particular case based on its view that the incident was not sufficiently foreseeable and did not bear an adequate causal relationship to the restaurant's alleged fault to justify imposing the entire liability on the restaurant. Id. at 112.

In Martin, supra, 345 N.J. Super. at 280, the court addressed the "proper interpretation" of Blazovic regarding the apportionment of fault between negligent and intentional tortfeasors. In that case, the plaintiff was sexually assaulted in the defendant's hotel room by another guest who had lived there for four months, during which time he had not shown any indication that he might prove to be dangerous. Id. at 280, 291. In determining whether Blazovic excused the apportionment of fault, the court stated "the overall focus is on whether plaintiff's injury was so foreseeable to the supervising defendant that a failure to act or an inadequate response that causes the plaintiff to suffer the foreseeable injury warrants imposition of the entire fault upon that defendant." Id. at 292-93. The Martin court held that, just as in Blazovic, the sexual assault "was neither sufficiently foreseeable nor sufficiently related to [the hotel's] alleged fault to justify imposing responsibility on [the hotel] for all of [the plaintiff's] injuries." Id. at 292; see Steele, supra, 148 N.J. at 14 (reaffirming Blazovic holding that the jury ordinarily should apportion fault between the negligent supervisor and the intentional tortfeasor, provided there was sufficient foreseeability and causation); Waldron v. Johnson, 368 N.J. Super. 348, 352 (App. Div.) (holding Monmouth Mall's duty did not encompass obligation to prevent the plaintiff's injury at an ATM, where the attack "was not so foreseeable nor did it bear such a close causal connection to the Mall's slow response to the melee that it should justify imposing upon the Mall the entire responsibility for plaintiff's injuries"), certif. denied, 182 N.J. 139 (2004).

In the present matter, there were sufficient facts in the record for the jury to find that plaintiffs suffered foreseeable injuries as a result of defendant's negligent retention of Bogle. Therefore, the court did not err in applying the Blazovic non-apportionment exception.

Any other arguments advanced by either the plaintiffs or defendant, which we have not specifically addressed, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The appeal and cross-appeal are affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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August 6, 2008