OPINION
Plаintiff Rohan Brijall initiated this action against Defendants Harrah’s Atlantic City (“Harrah’s”) and Mamadi Camara, a security guard at Harrah’s, alleging that he was injured in a fight with Camara.
I.
On July 18, 2010, Plaintiff was a patron at Harrah’s casino in Atlantic City. (Defi’s 56.1 Stat. ¶ 15, July 16, 2012.)
Plaintiff initiated the instant litigation by filing his Complaint on December 28, 2010. Plaintiff named Harrah’s and Camara as defendants, but Camara did not file an answer in this case and no attorney has made an appearance on his behalf. (Id. at ¶4.) Pending before the Court is Defendant Harrah’s Motion for Summary Judgment.
II.
“[SJummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Celotex Corp. v. Catrett,
The moving party bears the burden of establishing that no genuine issue of material fact remains. “ With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving pаrty’s ease.’ ” Conoshenti v. Public Serv. Elec. & Gas,
A fаct is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson,
III.
A. Negligent Hiring
Plaintiffs Complaint alleges that Harrah’s was negligent in its hiring of Camara. (Compl. ¶ 19.) Specifically, Plaintiff alleges that Harrah’s was negligent in the “hiring and continued employment” of Camara, in “failing to properly interview” Camara, in “failing to conduct proper background checks” of Camara, and in “hiring individuals with a propensity for violence.” {Id.)
New Jersey courts “recognize the tort of negligent hiring, where the employer either knew or should have known that the employee was violent or aggressive, or that the employee might engage in injurious conduct toward third persons.” Davis v. Devereux Found.,
Harrah’s argues that Plaintiff has produced no evidence from which a reasonable jury could cоnclude Harrah’s either knew or should have known of Camara’s unfitness, incompetence or dangerous attributes. (Def.’s Br. 5, July 16, 2012)
B. Negligent Supervision
The tort of negligent supervision recognizes that “[ejmployers have a duty to supervise employees, and liability may be imposed if an employer fails to perform that duty.” See Sullivan v. Marina Dist. Dev. Co., No. 10-4204,
In this case, Plaintiff has put forth no evidence showing that Harrah’s reasonably should have foreseen that Camara would injure a customer while performing his duties. In fact, in conceding that he does not have enough evidence to support his negligent hiring claim, Plaintiff admits that Camara had a “lack of criminal history and a fairly uneventful work history.” (Pl.’s Letter Opp’n.) However, Plaintiff does not concede his negligent supervision claim because he argues that the jury can watch surveillance footage of the incident to determine whether or not Camara’s actions are those of someone who was reasonably supervised. (PL’s Letter Opp’n.) However, absent any evidence that the actions of Camara which аre shown in the video were foreseeable, the footage alone does not create a genuine issue of material fact. See Sullivan,
C. Negligent Training
The tort of negligent training has four elements in New Jersey. See Stroby v. Egg Harbor Twp.,
Plaintiff in this case has not put forth sufficient evidence of breach from which a reasonable jury could conclude that Harrah’s was negligent in its training of Camara. Plaintiff has not provided any details about Harrah’s training policy, or pointed to any aspects he finds deficient; Plaintiff has not deposed any witnesses to gather information about how security guards at Harrah’s are trained in practice; and Plaintiff has not put forth any expert testimony as to how security guards should properly be trained. As with the negligent supervision claim, Plaintiffs sole evidence of negligent training is surveillance footage from which he argues a jury can determine if Camara was properly trained. (PL’s Letter Opp’n.) However, absent any evidence as to what Harrah’s training policies were and how they failed to consider the type of injury that occurred in this case, the video evidence is purely an example of hindsight being used as the standard to measure Harrah’s duty of care. See Hill,
D. Assault and Battery
Lastly, Plaintiffs Complaint alleges that Harrah’s is liable for Camara’s assault
Generally, intentional torts do not fall within the scope of employment. See Davis,
The facts of these cases fit a common pattern. In each, the employee’s responsibilities include enforcement of the employer’s rules. The employee’s attempt to compel compliance with those rules was met with resistance and provoked a physical altercation. The courts attribute the conduct, in whole or in part, to the starting point of each incident: the employee’s attempt to serve the employer. Accordingly, the employer was potentially liable under principles of respondeat superior.
Id. at 305,
For example, in Schisano v. Brickseal Refractory Co., an employee was responsible for keeping unauthorized cars out of his employer’s private parking lot.
In the instant case, Harrah’s argues that Camara was not acting within the scope of his employment because Camara’s job as a security guard only authorized him to use physical force defensively. (Def.’s Br. 10.) Harrah’s further argues that Camara only struck Plaintiff after
Regardless of which version of the facts the Court accepts as true, a genuine issue of material fact remains as to whether Camara was acting within the scope of his employment when he struck Plaintiff. The facts of this case are nearly identical to the fact pattern outlined in Davis. Camara’s responsibilities as a security guard include enforcement of Harrah’s rules. His attempt to compel compliance with these rules by asking Plaintiff to stop smoking provoked a physical altercation, and the starting pоint of the physical altercation was Camara’s attempt to serve the employer by asking Plaintiff to stop smoking. Therefore, as in Schisano, the fight “was certainly related to” Camara’s employment and a jury question is presented as to whether the act was within the scope of Camarа’s employment. See
IV.
For the foregoing reasons, Defendant’s Motion for Summary Judgment is hereby granted in part and denied in part. An appropriate Order will accompany this Opinion.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Dkt. No. 17)
This matter having appeared before the Court upon Defendant Harrah’s Motion for Summary Judgment (Dkt. No. 17), the Court having considered the submissions of the parties, and for good cause appearing;
IT IS on this 20th day of November, 2012, ORDERED THAT:
(1) Defendant Harrah’s Motion for Summary Judgment (Dkt. No. 17) is hereby GRANTED as tо Plaintiffs negligent hiring, negligent supervision and negligent training claims.
(2) Defendant Harrah’s Motion for Summary Judgment (Dkt. No. 17) is hereby DENIED as to Plaintiffs respondeat superior claim.
Notes
. Subject matter jurisdiction is based on diversity of citizenship. See 28 U.S.C. § 1332(a) and (c). This case was originally filed in New York Supreme Court, Bronx County and removed to the United States District Court for the Southern District of New York by Harrah’s. The Southern District of New York transferred the case to this Court.
. References to "Harrah's 56.1 Stat.” are to Harrah's statement of undisputed material facts submitted in support of their Motion.
. References to "Pl.’s Resp.” are to Plaintiff’s Certification of Jeff Sheppаrd, which accompanied Plaintiff’s letter brief opposing Harrah’s Motion for Summary Judgment and serves as Plaintiff's response to Harrah's Statement of Undisputed Facts.
. Citations in this form refer to Harrah’s Brief in Support of Defendant Harrah’s Motion for Summary Judgment.
. Citations in this form refer to Plaintiff's letter brief in opposition to Harrah’s motion for summary judgment.