BONANNI v. THOMPSON, 1:14-cv-04745

On July 12, 2012, plaintiff (then 16) was at The Morey Organization’s (TMO) Wildwood pier when game operator Otis R. Thompson refused him a free shot; an altercation followed and Thompson pushed plaintiff, who alleges he fell and was injured.
Thompson left his booth holding a broom, attempted to detain plaintiff until security arrived, and pushed against plaintiff; Thompson says he felt threatened by plaintiff’s size and age.
Plaintiff sued Thompson and TMO asserting respondeat superior liability, negligent training/supervision, and seeking punitive damages.
TMO moved for summary judgment on all claims; Thompson partially opposed only as to respondeat superior; the Court held oral argument.
The Magistrate Judge denied summary judgment on respondeat superior and negligent training/supervision (fact issues for a jury), but granted summary judgment for TMO (and Thompson) on punitive damages.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Respondeat superior — was Thompson acting within scope of employment?	Thompson’s push was at least partly motivated to serve TMO (protect patrons/cash), so employer is liable.	Thompson acted outside scope, violated training and had no authority to use force; conduct unforeseeable.	Denied as to employer liability: factual disputes exist under Restatement §228 factors (a),(c),(d). Jury must decide.
Foreseeability of force (scope factor for intentional force)	Force was a foreseeable response to an intimidating, large minor; nondispositive absence of prior incidents.	No prior similar incidents and exemplary employee; use of force was unexpected.	Denied: foreseeability is a jury question given circumstances (age/size/threat, lack of communications in booth).
Negligent training and supervision	TMO failed to train employees on handling argumentative/minor patrons or threats; inadequate supervision caused injury.	Training existed and prohibited force; expert testimony required to challenge adequacy.	Denied: jury question whether training/supervision was adequate; expert not required because issue is within lay jurors’ common experience.
Punitive damages against TMO (and Thompson)	Conduct was reckless/wanton given risk to patrons.	No intentional/malicious or wanton conduct; isolated incident by exemplary employee.	Granted for punitive damages: record lacks clear-and-convincing evidence of malice or wanton/reckless indifference.

Davis v. Devereux, 209 N.J. 269 (2012) (adopts Restatement (Second) of Agency §228(1) scope-of-employment factors)
Gibson v. Kennedy, 23 N.J. 150 (1957) (assault by employee during job-related dispute can present a jury question on scope)
Schisano v. Brickseal Refractory Co., 62 N.J. Super. 269 (App. Div.) (1960) (employee’s use of force while enforcing employer’s property rules may be within scope)
Pavlova v. Mint Management Corp., 375 N.J. Super. 397 (App. Div.) (2005) (punitive damages require wanton/reckless or malicious conduct)
Berg v. Reaction Motors Div., 37 N.J. 396 (1962) (punitive damages standard requires deliberate act with knowledge of high probability of harm)
McLaughlin v. Rova Farms, Inc., 56 N.J. 288 (1970) (defendant’s awareness of dangerous character of conduct relevant to punitive damages)
Brijall v. Harrah’s Atlantic City, 905 F. Supp. 2d 617 (D.N.J.) (2012) (distinguishes need for expert testimony in evaluating professional security conduct)