Zepf v. Hilton Hotel & Casino

• Decision Date: 20 December 2001
• Citation: 346 N.J. Super. 6,786 A.2d 154
• Court: New Jersey Superior Court
• Parties: Linnea ZEPF, Plaintiff-Respondent/Cross-Appellant, v. HILTON HOTEL & CASINO, Defendant-Appellant/Cross-Respondent.

786 A.2d 154

346 N.J. Super. 6

Linnea ZEPF, Plaintiff-Respondent/Cross-Appellant, v. HILTON HOTEL & CASINO, Defendant-Appellant/Cross-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued November 5, 2001.

Decided December 20, 2001.

James M. Hirschhorn, Newark, argued the cause for respondent (Sills Cummis Radin Tischman Epstein & Gross, attorneys; Mr. Hirschhorn, of counsel and on the brief).

Robert A. Porter, Cherry Hill, argued the cause for appellant (Friedman, Bafundo, Porter & Borbi, attorneys; Mr. Porter, on the brief).

Before Judges HAVEY, BRAITHWAITE and COBURN. The opinion of the court was delivered by BRAITHWAITE, J.A.D

Defendant Hilton Hotel & Casino appeals from a judgment entered on a molded jury verdict awarding plaintiff Linnea Zepf, defendant's employee, $150,000 in damages for injuries she suffered when she was assaulted by a robber on the sidewalk adjacent to defendant's property as she left work to go home in the early morning hours of March 10, 1997. On appeal, defendant contends that it owed no duty to provide surveillance and security patrols on a public sidewalk it does not own or control and that if it owed such a duty, it satisfied that duty by providing a shuttle bus to a secure parking lot. Plaintiff cross-appeals from the trial judge's submission of the issue of plaintiff's comparative negligence to the jury. We reject the contentions raised on both the appeal and the cross-appeal and affirm.

The facts the jury could have found from the evidence may be summarized as follows. Plaintiff, a casino dealer, was a resident of Ventnor, working for defendant on March 10, 1997. Plaintiff left work at approximately 1:30 a.m. following the end of her normal shift. Defendant's building, actually housing the casino, is located between the boardwalk and Pacific Avenue and Providence and Boston Avenues in Atlantic City.

Attached to the casino building is a skywalk across Pacific Avenue that links the casino with another building known as the Dream Deck, a multi-story customer parking garage, owned by defendant. On the upper levels of the Dream Deck is customer parking and on the ground floor is a transportation center for casino buses that bring patrons to the casino and some casino executive offices. In addition, the Dream Deck is the location for a shuttle bus that transports employees to a remote parking lot where some employees choose to park their cars while working. The remote employee lot is a guarded and fenced lot that employees are taken to and from by defendant's shuttle bus, which leaves from the Dream Deck every fifteen minutes. The Dream Deck also has an employee entrance and exit that can take an employee to Providence Avenue, the street where plaintiff was assaulted.

Located right next to the Dream Deck on Providence Avenue is the Holiday parking lot, a private lot, not connected to defendant's business. Plaintiff parked her car in the Holiday lot, although she was aware of the remote employee lot and the shuttle service. In fact, plaintiff never used the remote lot and shuttle service because it added forty minutes to her trip to and from work. Further, the remote parking area was often flooded, as was the street on which it was located. In addition, "street people" hung around the area of the Dream Deck where the shuttle departed. For all these reasons, plaintiff declined to use the shuttle service and remote employee parking lot.

Some employees used the employee lot, while others used the Holiday lot. A defense witness conceded that defendant's employees were not required to use the shuttle bus and employee lot. Moreover, plaintiff was never told that she had to use that lot and the shuttle bus. Defendant never directed or recommended that plaintiff use the Holiday lot. However, she was never told by defendant of any risks of using the sidewalk to get to the Holiday lot or that using that lot was not safe. She believed that walking along Providence Avenue from the employee exit in the Dream Deck to the Holiday lot, a distance of 153 feet, was safe.

Prior to the attack, plaintiff left the employee's exit in the Dream Deck and proceeded toward the Holiday lot. As she crossed the driveway from which casino buses leave the Dream Deck, she heard footsteps behind her. She then felt a tug on her handbag, but the assailant was unable to pry the bag away from plaintiff. He dragged her down the street, knocked her to the ground and took her bag. When plaintiff struck the ground, she suffered a fractured hip. Plaintiff's assault occurred on the sidewalk adjacent to the casino executive offices located in the Dream Deck. Two good Samaritans saw the incident, caught the assailant and retrieved plaintiff's bag. The police then arrived and plaintiff was taken to Atlantic City Medical Center. She had to be transferred to another hospital where surgery was performed on her hip.

Plaintiff was in the hospital for five days and spent four weeks at a rehabilitation hospital. She continued with outpatient rehabilitation therapy after leaving the hospital. She suffers from severe pain and depression, and takes several medications as a result. Plaintiff was out of work for approximately four weeks. The parties stipulated that she lost approximately $8,000 in income and had medical expenses of $25,807.

Defendant's security manual provided that the security department was to "periodically check [the property's] perimeters." Defendant's security department patrolled Boston Avenue between the Dream Deck and a surface parking lot it operated on the other side of the street from the Dream Deck. That area was also under closed circuit television ("CCTV") surveillance. That security was designed to protect defendant's patrons and its property. In addition, security personnel routinely patrolled the Dream Deck and bus terminal, as well as two surface parking lots it operated. These areas were also covered by CCTV surveillance in order to protect patrons, employees and property. CCTV also covered the Boardwalk at Providence Avenue, where a loading dock to defendant's building was located.

Although there was CCTV on the Providence Avenue side of the Dream Deck, it was focused on the Dream Deck, rather than on the street. In fact, there was no security at all, in the form of roving patrols or CCTV coverage, on Providence Avenue adjacent to the casino and the Dream Deck. Similarly, there was no security on the Boardwalk in front of the casino, except for the loading dock, as noted above. Defendant's witness testified that no security was in these areas because it believed public sidewalks were not its responsibility; rather, the Atlantic City Police Department was responsible for security on public streets. As a result, defendant did not obtain any crime statistics regarding the level or types of criminal activity which occurred around its property. In sum, defendant provided security only in the hotel casino, Dream Deck, and in its outside parking areas.

Ira Somerson testified for plaintiff as an expert in security and security management. He evaluated the security in place at the Hilton in March 1997. He first concluded that there was a foreseeable risk of crime being committed on people on the public streets in the area adjacent to defendant's property, given the nature of the casino business, i.e., a lot of visitors with large amounts of cash, and the history of criminal activity in the area surrounding defendant's property. Somerson obtained statistics from the Atlantic City Police Department on crime in the vicinity of defendant's property. Given the absence of any security along Providence Avenue between the Boardwalk and Atlantic Avenue, he opined that plaintiff was more at risk walking to the Holiday lot than in other areas around defendant's property.

Moreover, Somerson noted that defendant failed to comply with its own security manual, in that all of the property's perimeters were not routinely checked. Further, the availability of the shuttle bus did not alter his analysis, because it was not mandatory that all employees use it.

In short, Somerson opined that defendant owed a duty to provide security in all areas adjacent to its property, including Providence Avenue from the Boardwalk to the Holiday lot. The fact that plaintiff was an employee was irrelevant. Somerson testified that defendant owed the same duty to an Atlantic City visitor walking along Providence Avenue to the beach. Therefore, according to Somerson, defendant should have provided at least one individual to patrol Providence Avenue and the remaining perimeter of the building every thirty minutes.

In addition to the above, there was sufficient evidence for the jury to infer that defendant was aware or should have been aware that some of its employees did not use the shuttle bus and remote employee parking lot, but instead used the Holiday lot, located 153 feet away from the employee exit and entrance in the Dream Deck. There was plaintiff's testimony that the people who parked at Holiday were employees; a video tape of the route of the shuttle bus showing very few employees using the service; and defendant's employee, the entertainment supervisor in charge of audio visual, who took the video, did not use defendant's remote parking lot. Further, given that employees were not required to use the remote parking lot, it is reasonable to infer that employees would use the Holiday lot located so close to defendant's property. Moreover, there was testimony that the shuttle service to the remote parking lot was not provided for security or safety reasons, but to alleviate traffic congestion in the vicinity of the casino.

I

Prior to trial, defendant moved for summary judgment contending that it did not owe a duty to provide security on Providence Avenue. Its motion was denied.

After discussing the relevant facts and reviewing related case law, the motion judge applied a "totality of the circumstances...