Lingar v. Live-In Companions, Inc., LIVE-IN

• Court: New Jersey Superior Court – Appellate Division
• Citation: 300 N.J.Super. 22,692 A.2d 61
• Docket Number: LIVE-IN
• Parties: , 12 IER Cases 1462 Commander Ailon B. LINGAR and Maria Lingar, his wife, Plaintiffs-Appellants, v.COMPANIONS, INC., Bonnie Parsons Oechsle and Joseph S. Oechsle, Sr., Defendants-Respondents.
• Decision Date: 17 April 1997

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300 N.J.Super. 22 692 A.2d 61, 12 IER Cases 1462 Commander Ailon B. LINGAR and Maria Lingar, his wife,
Plaintiffs-Appellants,
v.
LIVE-IN COMPANIONS, INC., Bonnie Parsons Oechsle and Joseph
S. Oechsle, Sr., Defendants-Respondents. Superior Court of New Jersey,
Appellate Division. Argued March 26, 1997.
Decided April 17, 1997.

[692 A.2d

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62] Dennis J. Crawford, Philadelphia, PA, for appellants (Duffy & Quinn, attorneys; Mr. Crawford, of counsel; Eric J. Riso, on the brief).

Bradley Wilson, West Orange, for respondents (Sachs, Maitlin, Fleming, Greene & Wilson, attorneys; Allan Maitlin, on the brief).

Before Judges BAIME, PAUL G. LEVY, and BRAITHWAITE.

BAIME, J.A.D.

Maria Lingar retained Live-In Companions, Inc. to care for her disabled husband, Naval Commander Ailon Lingar, while she went on a trip. Live-In Companions assigned Kenneth Mack to attend to Ailon in Maria's absence. While Maria was away, Mack abandoned Ailon and stole several items from her home. Plaintiffs brought this action against Live-In Companions, its owner and director, Bonnie Oechsle, and her husband, Joseph Oechsle, seeking compensatory and punitive damages. The trial court granted defendants' motion for partial summary judgment and dismissed plaintiffs' [692 A.2d 63] claims for negligent and intentional infliction of emotional distress, conversion and invasion of privacy. At the close of plaintiffs' case, the trial court dismissed all of Ailon's claims and all of the claims against Joseph Oechsle. The trial court also dismissed Maria's claim for breach of contract and her demand for punitive damages. At the close of all the evidence, the trial court dismissed Maria's remaining claims for negligent hiring and consumer fraud. Judgment was entered accordingly. Plaintiffs appeal. We affirm in part and reverse in part.

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I.

Plaintiffs were married in 1947. Early in the marriage, Ailon suffered a ruptured cerebral aneurysm, leaving him totally disabled and in need of "around-the-clock" care.

In September 1993, Maria retained Live-In Companions to care for Ailon during her absence while on a trip. In her discussions with Bonnie Oechsle, Maria emphasized the nature and extent of Ailon's needs. Maria stressed that she was looking for someone who was "very reliable" to feed, bathe and attend to the personal needs of her husband and to administer the appropriate medication for his heart and for preventing seizures. Bonnie responded that Maria could "depend" on Live-In Companions because of the high quality of its employees. Maria also had received a brochure from Live-In Companions which represented that its "reliable employees" would "assist with washing, dressing and helping individuals as needed" and would "provide friendship [and] someone to talk to and be there" when the primary care-giver could not. The brochure also contained the representation that "[a]ll employees [were] supervised and a close relationship [was] maintained between [the] employees, clients, client's families, and [Live-In Companion's] administration."

On the day of Maria's trip, Live-In Companions assigned Kenneth Mack to care for Ailon. Bonnie had hired Mack in May 1993, based upon the recommendation of one of Live-In Companion's trusted employees. Although Mack had represented on his application for employment that he had not been convicted of a "felony" in the last seven years, he had a formidable record of criminal and disorderly persons convictions for offenses ranging from possession and distribution of cocaine to shoplifting, trespassing, and receiving stolen property. In response to questions propounded in the application, Mack had indicated that he did not have a driver's license. It was Bonnie's practice to "pre-screen" applicants by conversing with them on the telephone and to conduct pre-hiring interviews. No further investigation was generally

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undertaken. Bonnie stressed that she would not have hired Mack had she known of his checkered history.

While Maria was away, Mack abandoned Ailon and stole various items, including Maria's automobile. Fortunately, family members quickly discovered the problem, but both Maria and Ailon claimed that they were emotionally traumatized by the incident.

On appeal, plaintiffs advance a plethora of arguments attacking the Law Division's pretrial and trial decisions. For the purpose of clarity, we do not treat these claims chronologically. Instead, we first address plaintiffs' argument that the trial court erred by dismissing their claims for consumer fraud and negligent hiring. We find merit in these contentions and reverse and remand for a new trial on these counts. We reject the remainder of plaintiffs' arguments.

II.

Initially, we consider plaintiffs' argument that the trial court erroneously dismissed their claim of consumer fraud. The trial court granted an involuntary dismissal because it viewed Bonnie's statements and the representations made in the Live-In Companion brochure as mere "puffery." We disagree with this conclusion and reinstate plaintiffs' claim.

We begin our analysis with the operative language of the Consumer Fraud Act ( N.J.S.A. 56:8-8 to -48). N.J.S.A. 56:8-2 provides:

The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or [692 A.2d 64] omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid ... is declared to be an unlawful practice;....

Under the Act, the word "merchandise" includes "services ... offered, directly or indirectly to the public for sale." N.J.S.A. 56:8-1(c).

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The statutory language is to be liberally construed in favor of consumers. Cox v. Sears Roebuck & Co., 138 N.J. 2, 15, 647 A.2d 454 (1994); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 69, 494 A.2d 804 (1985); Levin v. Lewis, 179 N.J.Super. 193, 200, 431 A.2d 157 (App.Div.1981); State v. Hudson Furniture Co., 165 N.J.Super. 516, 520, 398 A.2d 900 (App.Div.1979). The legislative objective was to protect the public from sharp practices and dealings in the marketing of real estate, goods, and services. Gennari v. Weichert Co. Realtors, 288 N.J.Super. 504, 533, 672 A.2d 1190 (App.Div.), leave to appeal granted, 146 N.J. 64, 679 A.2d 652 (1996). Toward that end, the Act was broadly designed to protect the consumer, even when the merchant acts in good faith. D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J.Super. 11, 23, 501 A.2d 990 (App.Div.1985); Skeer v. E.M.K. Motors, Inc., 187 N.J.Super. 465, 470, 455 A.2d 508 (App.Div.1982).

The necessary predicate to application of the Act is the commission of "any unconscionable commercial practice." N.J.S.A. 56:8-2; see also Gennari v. Weichert Co. Realtors, 288 N.J.Super. at 533, 672 A.2d 1190. Unconscionable practices "fall into two general categories under N.J.S.A. 56:8-2, affirmative acts and knowing omissions." Id. at 534, 672 A.2d 1190. Where, as here, the representation is affirmative, the Act permits recovery of the consumer's loss and imposition of treble damages and attorney's fees, N.J.S.A. 56:8-1(a), "without any showing of an intent to deceive or even negligence" on the part of the defendant. Ibid.; see also Strawn v. Canuso, 140 N.J. 43, 60, 657 A.2d 420 (1995); Cox v. Sears Roebuck & Co., 138 N.J. at 17-18, 647 A.2d 454; Chattin v. Cape May Greene, Inc., 124 N.J. 520, 522, 591 A.2d 943 (1991) (Stein, J. concurring).

We do not regard the statements contained in the brochure or those made by Bonnie as "exaggerated claim[s] of quality," Miller v. American Family Publishers, 284 N.J.Super. 67, 81, 663 A.2d 643 (Ch.Div.1995), or as "unactionable [declarations] of opinion," Byrne v. Weichert Realtors, 290 N.J.Super. 126, 136, 675 A.2d 235 (App.Div.), certif. denied, 147 N.J. 259, 686 A.2d 761 (1996), or as

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"nothing more than puffery," Rodio v. Smith, 123 N.J. 345, 352, 587 A.2d 621 (1991). The statements made were "susceptible of personal knowledge," Joseph J. Murphy Realty, Inc. v. Shervan, 159 N.J.Super. 546, 551, 388 A.2d 990 (App.Div.1978), certif. denied, 79 N.J. 487, 401 A.2d 242 (1979), and were represented in such a way "that the consumer could reasonably treat [them] as [declarations] of fact." Borcherding v. Anderson Remodeling Co., 253 Ill.App.3d 655, 191 Ill.Dec. 699, 702-04, 624 N.E.2d 887, 890-92 (1993), appeal denied, 155 Ill.2d 561, 198 Ill.Dec. 540, 633 N.E.2d 2 (1994); see also Totz v. Continental Du Page Acura, 236 Ill.App.3d 891, 177 Ill.Dec. 202, 211, 602 N.E.2d 1374, 1383 (1992). In reaching this conclusion, we point to Maria's statements to Bonnie in which she explicated Ailon's substantial needs, and Bonnie's strong assurances that such needs would be met. Viewed as a whole and taken in context, the statements respecting the reliability of Live-In Companion's employees and the quality of services to be provided could reasonably have been perceived as declarations of fact. See R. 4:37-2(b). The trial court erred by granting defendants' motion for a dismissal.

III.

Viewing the evidence in a light most favorable to plaintiffs, see Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969), we also find that the trial court erred by dismissing the claim for negligent hiring. An employer who negligently hires or retains in his employ an individual who is incompetent or unfit for the job "may be liable to a third party whose injury was proximately caused by the employer's" failure to exercise due care. Di Cosala v. Kay, 91 N.J. 159, 170, 450 [692 A.2d 65] A.2d 508 (1982). "The reasoning that has impelled the recognition of this cause of action ... follows from tort principles of negligence and foreseeability as well as from firmly established [rules] of agency and...