MARLA CARLEEN v. THE TJX COMPANIES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5784-07T25784-07T2

MARLA CARLEEN and

DONALD CARLEEN,

Plaintiffs-Appellants/

Cross-Respondents,

v.

THE TJX COMPANIES, INC.

d/b/a TJ MAXX,

Defendant-Respondent/

Cross-Appellant,

and

EDUARDO MENDEZ,

Defendant.

_________________________________________________

 
Argued telephonically September 11, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Docket No.

L-2029-06.

Marla Carleen argued the cause pro se for appellants/cross-respondents.

Alan G. White argued the cause for

respondent/cross-appellant (Bonner Kiernan

Trebach & Crociata, LLP, attorneys; Mr.

White, on the brief).

PER CURIAM

Plaintiff, Marla Carleen, and her husband, Donald Carleen, suing per quod, appeal from the dismissal of the their suit against defendant The TJX Companies, Inc., d/b/a T.J. Maxx (hereafter, T.J. Maxx), at the conclusion of the evidence, as the result of the trial judge's determination that plaintiffs had offered insufficient proof of damages. T.J. Maxx has cross-appealed from the trial judge's finding, at the conclusion of plaintiffs' case, that they had presented prima facie evidence of liability on the part of T.J. Maxx.

The evidence at trial disclosed that, on June 3, 2004, while trying on a bathing suit in a dressing room at a T.J. Maxx store located in Gillette, New Jersey, a store employee, Eduardo Mendez, photographed or attempted to photograph Marla Carleen's nude body, by placing his cell phone under the door of her dressing room. When Carleen realized what was occurring, she dressed and informed the acting store manager, Ronald Newman, of the incident and described the employee who had been stationed at the security desk when she entered the area of the women's dressing rooms. Newman identified Mendez as the person described by Carleen, but Mendez denied doing the acts that Carleen described. Newman also called his district manager and the company's loss prevention manager to inform them of what had occurred. He declined to call the police, and as a result, on Donald Carleen's advice, Marla Carleen contacted them. Following a further investigation by the police and an examination of Mendez's cell phone, which disclosed a picture of another nude woman apparently in a T.J. Maxx dressing room, but not a picture of Carleen, on June 21, 2004, Mendez confessed to having tried to photograph Carleen. His employment was promptly terminated.

At the time of the incident, the store was equipped with male and female dressing rooms, separated by an area containing a security desk. A sales associate was assigned to staff the security desk for the purpose of counting items taken in and out of the dressing rooms so as to guard against shoplifting. Usually, the sales associate was female, but the store had no policy against assigning males to that duty. On the day in question, a sales associate named Claudia was on duty. Just prior to the incident, she was called away by Newman to assist in determining "markdown capture rates." When Claudia reported to Newman, she stated that she had obtained coverage for the security desk, without specifying who was providing that coverage. Newman testified that he accepted Claudia's statement, regarding her to be a responsible employee with good judgment. In fact, Claudia had enlisted Mendez, a person who was employed as a backroom coordinator, not a sales associate. Mendez happened to be in the area at the time because he was delivering sensors for handbags to Claudia. There was no testimony that Claudia knew that the security position could only be filled by a sales associate. There was also no testimony that Mendez was incompetent to fill the duties of the security position, although it was not within his job description. The only job evaluation of Mendez that was disclosed at trial revealed no disciplinary proceedings against him of any sort.

Prior to trial of the matter, T.J. Maxx sought summary judgment on all claims against it. Its motion was partially granted, and on November 2, 2007, an order of summary judgment was entered "as to claims related to negligent hiring and retention (Count 5) and respondeat superior." Plaintiffs' counsel characterized the remaining claim against T.J. Maxx at trial solely as its negligent failure to provide reasonably safe premises for the use of shoppers such as Carleen.

Nonetheless, the trial judge likened the claim to one of negligent infliction of emotional distress and, relying principally on the case of Williamson v. Waldman, 150 N.J. 232 (1997), a claim for negligent infliction of emotional distress by a cleaning woman who received a puncture wound from a lancet while cleaning a medical office, held that although the emotional distress suffered by Carleen was "genuine," its intensity and duration were insufficient to sustain a damage award in her favor.

Following our review of the plaintiffs' complaint in this matter, together with the trial transcript, arguments of counsel, and applicable precedent, we have concluded that the trial judge was mistaken in her characterization of plaintiffs' cause of action and her application of damage principles recognized in the context of claims for intentional or negligent infliction of emotional distress. In such cases, the Supreme Court has held that, to avoid specious claims, recovery is permitted only where the emotional distress experienced by the plaintiff is "severe." See, e.g., Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 368 (1988). As the Court stated in that decision, the mental distress must be "so severe that no reasonable man could be expected to endure it." Ibid.

We have been offered no legal support for the argument that such a heightened standard is applicable in a case premised upon emotional injuries sustained from criminal or tortious invasion of privacy allegedly occurring as the result of the defendant's failure to maintain a safe premises. Indeed, it would be illogical to conclude that the emotional distress arising from an invasion of privacy was noncompensable, when injury of that type is the most likely result of circumstances, such as these, in which the defendant's conduct "struck directly at the personhood of plaintiff." Rumbauskas v. Cantor, 138 N.J. 173, 182 (1994) (citing Canessa v. J.I. Kislak, Inc., 97 N.J. Super. 327, 351 (Law Div. 1967)). Indeed, it has been held that "[i]n such suits, some of the major elements of damages are humiliation, embarrassment, mental suffering and wounded sensibilities." Rumbauskas, supra, 138 N.J. at 179 (citing Canessa, supra, 97 N.J. Super. at 353). See also Restatement (Second) of Torts 652H (1965) (recognizing as damages from invasion of privacy a plaintiff's mental distress, if it is of a kind that normally results from such an invasion). We thus find that judgment in favor of T.J. Maxx was improperly granted on the ground of insufficient proof of damages. While the emotional distress sustained by Carleen may not have met Buckley's standard of severity, that distress was unquestionably genuine and reasonably foreseeable under applicable tort standards.

We next turn to the cross-appeal of T.J. Maxx, in which it argues that the plaintiffs failed to establish negligence on its part. It is clearly established that:

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." "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." If the reasonably prudent person would foresee danger resulting from another's voluntary criminal acts, the fact that another's actions are beyond defendant's control does not preclude liability. Foreseeability of the risk that criminal acts of others would cause harm is the crucial factor.

[Butler v. Acme Markets, Inc., 89 N.J. 270, 276 (1982) (citations omitted).]

See also Restatement (Second) of Torts 344, which provides:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

In Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975), the Court applied these principles to affirm a judgment of liability imposed on a landlord for a tenant's property loss occasioned by robbery when the landlord had failed to provide an adequate lock on the tenant's apartment door. In Trentacost v. Brussel, 82 N.J. 214 (1980), the Court affirmed a jury's finding of liability on the part of a landlord for personal injuries to a tenant sustained in an assault in her apartment building when the landlord had failed to provide a lock on the front door of the building, and there was ample evidence of other criminal activity affecting the building. In Butler, the Court found Acme Markets liable for injury to a customer as the result of a purse snatching in the store's parking lot, when seven muggings had occurred in the lot, five of which had occurred within the four months before the attack on the plaintiff, no signs warned of the danger, and the only security officer was inside the store when the attack occurred.

Similarly, in Clohesy v. Food Circus Supermarkets, 149 N.J. 496 (1997), the Court found, after a consideration of the totality of the circumstances, that the store owed a duty to the plaintiff, who was abducted from the store's parking lot and murdered, to provide security in its parking lot when there was a significant and escalating history of criminal conduct on its premises, albeit of a different nature; the store was located next to a gas station and liquor store where loitering occurred; and a security expert testified that, by failing to provide security, the store deviated from industry standards of care. In support of this conclusion, the expert cited the store's poor architectural design, which precluded a direct view from inside the store of the area in which the abduction occurred, and the two factors previously cited. Id. at 503-04.

In discussing the concept of foreseeability as it related to duty, the Court stated:

Foreseeability as a determinant of a business owner's duty of care to its customers is to be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury. Foreseeability as it impacts duty determinations refers to

"the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care."

[Hill v. Yaskin, 75 N.J. 139, 144 (1977) (quoting 57 Am.Jur 2d Negligence 58 (1970))].

Whether a duty exists is a matter of law for the court to decide, as is the scope of that duty. Clohesy, supra, 149 N.J. at 502.

Application of the foregoing principles to the present matter satisfies us that plaintiffs failed to demonstrate a breach by T.J. Maxx of its duty to provide a safe premises in this case. Our conclusion is supported by several factors. First, no prior incident of a similar nature had ever been reported. Indeed, in the period commencing on December 12, 2002, there had been only one incident of criminal conduct on the part of a store employee, which consisted of the fraudulent use of a customer's credit card. All five additional criminal incidents involved claims of shoplifting by customers. Thus, the invasion of Carleen's privacy had no known precedent, and employee criminal misconduct was rare, having occurred on only one occasion in the one and one-half years before the attempted photographing of Carleen occurred.

Second, while a risk of an invasion of privacy arguably could have been foreseen in a clothing store equipped with dressing rooms, the store had taken steps that had the effect, if not the explicit goal, of precluding the conduct that occurred. The store maintained a policy that no employee could carry a cell phone while on duty. Employees were required to acknowledge that policy in writing, and verbal reinforcement of the policy occurred at store meetings. There was no evidence that any supervisory employee had reason to believe that Mendez had previously violated the store's policy or that any employee knew that he was violating it when the incident took place.

Third, unlike the plaintiff in Clohesy, in this case plaintiffs offered no expert testimony demonstrating inadequacies in the security provided by T.J. Maxx. There was no evidence that it was improper to staff the security desk serving both the male and female dressing rooms with a male, rather than a female. There was no evidence that security cameras should have been installed in a fashion that would permit detection of conduct such as that which took place. There was no evidence that the duties of the dressing room attendant should have encompassed more than inventorying the items taken into and out of the dressing room areas.

Fourth, as previously stated, staffing of the security desk by Mendez was not within his job description. However, there was no evidence that Claudia was aware of that fact. Further, there was no evidence that Newman breached a duty of reasonable care when he accepted Claudia's statement that the security desk was staffed without questioning her further as to who was the staffer.

In sum, we find plaintiffs' evidence of liability as it pertains to T.J. Maxx to have been insufficient as a matter of law. In reaching this conclusion, we do not suggest that the incident was not a serious one or that Carleen's response to it was unreasonable. Our conclusion arises solely from our evaluation of the evidence presented at trial. We thus affirm dismissal of plaintiffs' complaint, albeit on a ground different from that employed by the trial judge.

Affirmed.

 

Count 5 alleged negligent hiring and supervision. We assume that summary judgment was granted on the negligent supervision claim, and that use of the word "retention" was an error. The transcript of the motion hearing was not provided as part of the record on appeal. Indeed, plaintiffs avoided reference to the motion and its result in their initial brief on appeal, framing their arguments as if partial summary judgment had not been granted.

Although plaintiffs are proceeding pro se on appeal, both are attorneys.

See N.J.S.A. 2C:14-9b, Invasion of Privacy, which makes the photographing of another person whose intimate parts are exposed, without that person's consent, a third-degree crime.

See, e.g., Rumbauskas v. Cantor, 138 N.J. 173, 180 (1994), defining the tort of invasion of privacy as encompassing intrusion on plaintiff's physical solitude or seclusion. See also Restatement (Second) of Torts 652B (1965).

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A-5784-07T2

September 17, 2009