Rose v. Burger

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Rose Fonrose Louis andFritzner

Louis,

Plaintiffs-Appellants,

vs.

Burger King Corporation, individually

and t/a Burger King at Monmouth Mall,

and Hany S. Salib,

Defendants,

and

Quick Quality Restaurants, Inc.,

individually and t/a Burger King

at Monmouth Mall, and Emad Ghaitey,

Defendants-Respondents.

_______________________________________

December 4, 2015

Submitted October 7, 2015 Decided

Before Judges Kennedy and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4250-10.

Ansell Grimm & Aaron, PC, attorneys for appellants (Edward J. Ahearn, on the brief).

Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for respondents (Kenneth I. Nowak, of counsel; Flavio L. Komuves, on the brief).

PER CURIAM

Plaintiffs Rose Fonrose Louis and Fritzner Louis, a wife and husband, appeal an order granting summary judgment and dismissing their complaint against the wife's employer, QQR, LLC (QQR)1, and an employer-supervisor, Emad Ghaitey. Plaintiffs asserted common-law claims based on theories of negligence and vicarious liability for injuries sustained when the wife was sexually assaulted by a co-worker. Specifically, plaintiffs made claims of assault and battery (Count I), sexual harassment (Count II), intentional infliction of emotional distress (Count III), negligence and negligent hiring (Count IV and Count VI), tortious failure to intervene (Count V), and loss of consortium (Count VII). Plaintiffs' proofs do not fall within any exception to the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -142, and, therefore, are barred as a matter of law. N.J.S.A. 34:15-8; Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449, 458-59 (2012). We, therefore, affirm.

I.

In reviewing a grant of summary judgment, we apply the same standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Manhattan Trailer Park Homeowners Ass'n v. Manhattan Trailer Court & Trailer Sales, Inc., 438 N.J. Super. 185, 193 (App. Div. 2014).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide whether the motion judge's application of the law was correct. DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). In doing so, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. Ibid.

What follows are the facts appearing in the record, viewed most favorably to plaintiffs. Rose Fonrose Louis (Louis) worked at a Burger King restaurant in the Monmouth Mall in Eatontown. Emad Ghaitey is the manager of that restaurant, which is owned by QQR. On August 29, 2008, Louis was sexually assaulted at work by an assistant manager, Hany Salib, who followed her into a walk-in freezer and touched her breasts and buttocks through her clothes, kissed her neck, and attempted to insert his tongue into her mouth. While she was in the freezer, Ghaitey, opened the freezer door, looked at Louis and Salib, and then left.

Louis testified that as soon as Ghaitey opened the door to the freezer, Salib stopped assaulting her, and she did not say anything to Ghaitey. Later that same day, Salib again touched and kissed Louis in the freezer. Louis did not report either of these incidents to anyone at Burger King that day.

The following day, Louis' husband called Ghaitey to complain about the treatment of his wife. Two days later, the husband came to the Burger King, met with Ghaitey, and provided him with more details of the alleged assault. At the time of the incidents, Burger King had a written policy prohibiting work-place harassments, and that policy had been issued to all employees. Consistent with the procedures in that policy, Ghaitey reported Louis' allegations to his district manager and the district manager initiated an investigation. Within days, Salib was suspended, then transferred, and eventually terminated when he did not report to his new position. Louis ceased her employment at Burger King approximately two weeks after the alleged assault.

On September 10, 2008, Louis reported the incidents to the Eatontown police. Salib was arrested and charged with fourth-degree criminal sexual contact. Salib eventually pled guilty in municipal court to a down-graded charge of violating an ordinance. Salib was fined and ordered to have no contact with Louis.

In March 2009, Louis, represented by counsel, filed a workers' compensation claim against QQR alleging work-place injuries at Burger King from the sexual assault. While that workers' compensation action was pending, Louis and her husband filed this action in the Law Division, asserting claims against Salib, Burger King Corporation, QQR and Ghaitey. The claims against Burger King Corporation were dismissed by stipulation. The claims against Salib were settled and dismissed.

On March 1, 2011, Louis settled the workers' compensation claim for $7500, and signed a release in favor of QQR that provided

This is a lump sum settlement between the parties in the amount of $7500.00 pursuant to N.J.S.A. 34:15-20 which has the effect of a dismissal with prejudice, being final as to all rights and benefits of the petitioner and is a complete and absolute surrender and release of all rights arising out of this/these claim petition(s).

In May 2013, following the completion of discovery, QQR and Ghaitey moved for summary judgment. The motion judge, after hearing oral argument, granted summary judgment, and set forth his findings of fact and conclusions of law on the record on September 5, 2013. The motion judge held that all of plaintiffs' claims were barred by the exclusivity bar of the Act. This appeal followed.

II.

On appeal, plaintiffs argue (1) Ghaitey and QQR are vicariously liable for the tortious conduct of Salib; and (2) the Workers' Compensation bar does not preclude their civil claims.

Generally, when an employee's claimed injuries fall within the coverage of the Act, the employee is barred from seeking further legal redress from an employer or co-employee. N.J.S.A. 34:15-8; Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449 (2012). The policy reasons for that exclusive remedy have been explained by our Supreme Court: "the New Jersey Workers' Compensation Act accomplished a 'historic trade-off whereby employees relinquish their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffer injuries by accident arising out of and in the course of employment.'" Van Dunk, supra, 210 N.J. at 458 (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)).

The Act's exclusivity can be overcome if the case satisfies the statutory exception for an intentional wrong. N.J.S.A. 34:15-8 provides that

[i]f an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

In a series of cases beginning with Millison, the Court has explained the intentional-wrong exception to the Act's exclusive-remedy provision. Most recently, the Court has stated that "Millison remains the landmark case on the meaning of intentional wrong." Van Dunk, supra, 210 N.J. at 461.

In Millison, the Court established a "substantial certainty" standard and a two-step analysis to evaluate if an intentional wrong can be shown. Millison, supra, 101 N.J. at 178. First, a court considers the "'conduct prong' examining the employer's conduct in the setting of the particular case," and second, a court analyzes the "context prong" considering the resulting injury. Van Dunk, supra, 210 N.J. at 461 (citing Millison, supra, 101 N.J. at 178-79). The Court has explained that for an employer to lose "the cloak of immunity" provided by the Act

(1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize.

[Van Dunk, supra, 210 N.J. at 462 (quoting Laidlow v. Hariton Machinery Co., 170 N.J. 602, 617 (2002)).]

At oral argument before the trial court, counsel for plaintiff confirmed that the plaintiffs were not asserting a claim under any statute, including the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD). Moreover, plaintiffs'complaint doesnot allegeany violationof afederal or New Jersey employment or civil rights statute, such as Title VII ofthe CivilRights Act of 1964,42 U.S.C.A. 2000e to 2000e-17.

Instead, plaintiffs' claims against QQR and Ghaitey are based on theories of negligence and vicarious liability related to Salib's alleged sexual assault on Louis. Viewing plaintiffs' allegations in their most favorable light, at best, those allegations seek to assert common-law claims related to a work-place injury. Here, there is no dispute that Louis' injuries were covered by the Act. Louis brought such a workers' compensation claim, settled that claim, and received compensation for the very injuries she now seeks to assert in this action.

The claims plaintiffs seek to assert, moreover, do not vault the exclusivity bar of the Act. There are no facts in the record that would satisfy the substantial certainty standard needed to prove an intentional wrong by QQR or Ghaitey.

Plaintiffs allege that QQR should be vicariously liable for the intentional actions of Salib. The record is undisputed, however, that there was no prior complaint about Salib, QQR had an employment policy prohibiting such conduct, and QQR acted consistently with that policy once Louis' husband brought the allegations to QQR's attention. Accordingly, QQR engaged in no conduct that could be shown to be an intentional wrong.

Plaintiffs allege that Ghaitey was negligent when he walked into the freezer, looked at Louis and Salib, took no action, and walked out of the freezer. Plaintiffs further allege that had Ghaitey acted, Salib would not have been able to assault Louis a second time. At her deposition, however, Louis acknowledged that she could not be sure that Ghaitey saw any part of the assault. She testified that Salib ceased assaulting her as soon as Ghaitey started to open the freezer door. Louis also acknowledged that she did not call out to or ask for help from Ghaitey. Finally, after Salib left her, Louis acknowledged that she did not report the assault to anyone, including Ghaitey. In his deposition, Ghaitey testified that he did not see Louis and Salib when he walked into the freezer and he did not know that anything inappropriate was going on.

Viewing these allegations in the light most favorable to plaintiffs, at best, Ghaitey acted negligently; that is, he allegedly should have asked what was going on when he walked in to the freezer. That type of negligence, however, is not an intentional wrong under the Act. The Court has recently reaffirmed the principle that negligence is not an intentional wrong under the Act. In Van Dunk, the Supreme Court quoted Millison's standard, which explained

[T]he mere knowledge and appreciation of a risk - - something short of substantial certainty - - is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.

[Van Dunk, supra, 210 N.J. at 460 (alteration in original)(quoting Millison, supra, 101 N.J. at 177).]

Plaintiffs argue that the actions or inactions of QQR and Ghaitey are intentional wrongs within the meaning of the Act. In support of that position, plaintiffs cite and rely on the case of Cremen v. Harrah's Marina Hotel Casino, 680 F. Supp. 150 (D.N.J. 1988). The facts of Cremen, however, are distinguishable from the facts in this case. In Cremen, the employee lodged a verbal complaint against a supervisor employee who sexually assaulted her. Id. at 152. She was assured by a Harrah's employee in charge of investigating such allegations that the supervisor would be promptly dealt with. Ibid. Harrah's failed, however, to address the matter and the harassment continued. Ibid. When Harrah's moved for summary judgment arguing that the Act barred the employee's common-law claims, the district court denied summary judgment because Harrah's was put on notice and failed to take action. Ibid. As already pointed out, there are no facts showing that QQR or Ghaitey had any prior notice of Salib's intentional actions, and when the complaint was brought to QQR's attention, prompt action was taken and no further harassment occurred.

Having concluded that the Act bars plaintiffs' common-law claims, we need not address whether the evidence in this record, when viewed in the light most favorable to plaintiffs, established a common-law cause of action against an employer or supervisor for the intentional actions of a co-worker.

Affirmed.

1 QQR is the successor to the named defendant Quick Quality Restaurants, Inc.