NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3345-21
SIRA TRAORE and ALASSANE DIANE, her husband,
Plaintiffs-Appellants,
v.
FAIRVIEW HOMES PRESERVATION, L.P., RELATED MANAGEMENT COMPANY, L.P., and RICARDO MENDOZA,
Defendants-Respondents,
and
BERNARD FREUND,
Defendant. ______________________________
Argued May 24, 2023 – Decided November 22, 2023
Before Judges Accurso, Vernoia, and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7364-20. Philip B. Vinick argued the cause for appellants.
Robert H. Bernstein argued the cause for respondents Fairview Homes Preservation, L.P., and Related Management Company, L.P. (Greenberg Traurig, LLP, attorneys; Robert H. Bernstein, on the brief).
The opinion of the court was delivered by
FIRKO, J.A.D.
Plaintiffs Sira Traore and her husband Alassane Diane appeal from an
order dismissing their second amended complaint with prejudice against
defendants Fairview Homes Preservation, L.P. (Fairview), Bernard Freund,1
Related Management Company, L.P. (Related), and Related's former employee,
Ricardo Mendoza, for failure to state a claim on which relief may be granted.
We affirm in part, reverse in part, and remand for further proceedings.
I.
Because this appeal comes to us on a Rule 4:6-2(e) motion to dismiss, we
accept the facts alleged in the second amended complaint as true, granting
plaintiffs "every reasonable inference of fact." Green v. Morgan Props., 215
N.J. 431, 452 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,
1 Freund is the alleged "owner, alter ego and other self of Fairview." He was never served with a summons and complaint and did not participate in the matter. A-3345-21 2 116 N.J. 739, 746 (1989) (internal quotation marks omitted)). Thus, we begin
with a summary of the facts pled by plaintiffs in their second amended
complaint.
Traore went to Fairview's leasing office in Newark seeking to lease a
residential apartment and obtain financial assistance for herself and her family.
Traore contends she met with Mendoza, Related's former traveling community
manager, who was responsible for the management and procurement of leases
for Fairview's residential properties in New Jersey.
Related is located in New York City and is in the business of managing
and offering prospective tenants residential properties to lease, including
properties owned by Fairview and Freund. Prior to hiring Mendoza, plaintiffs
allege Related and Sterling Talent Solutions (Sterling) conducted a background
check on Mendoza, which was "limited in nature," geographically confined to
Florida and Maryland, was to serve as an "investigative tool only," and was not
to be "used as the basis of any employment decision." Plaintiffs also allege
neither Related nor Sterling contacted any of Mendoza's previous employers
before hiring him to ascertain if he had any performance or disciplinary issues
or complaints made against him.
A-3345-21 3 In June 2019, Related hired Mendoza. In September 2019, he took two
online training courses on preventing workplace harassment for employees. The
courses did not address sexual harassment or discrimination of non-employees,
such as residents, tenants, or prospective tenants.
On November 7, 2019, Traore alleges she went to Fairview's leasing office
in Newark seeking an application for an apartment lease and financial assistance
for herself, her husband, and three children. Traore met with Mendoza who
"touched and tried to touch" her and pressured her to meet him at his hotel to
have sex with him in exchange for an apartment lease and housing assistance for
her and her family. Mendoza gave Traore a handwritten note with the address
of his hotel and his cellular phone number. Traore claims that because she did
not accede to Mendoza's sexual demand, she did not receive an apartment lease
or housing assistance. She recorded the incident on her cellular phone. Three
months later, Related terminated Mendoza's employment.
Plaintiffs filed their second amended Law Division complaint, the
operative pleading here, asserting five causes of action against Fairview and
Related: (1) sexual harassment and discrimination in violation of the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, and Lehmann
v. Toys 'R' Us, Inc., 132 N.J. 587 (1993) (count one); (2) aiding and abetting
A-3345-21 4 (count two); (3) tortious conduct (count three); (4) negligence (count four); and
(5) a per quod claim on behalf of Diane (count five). Plaintiffs sought
compensatory and punitive damages, along with attorney's fees and an award of
costs.
Fairview and Related filed a motion to dismiss the second amended
complaint, which the motion court granted with prejudice. 2 In a written opinion,
the court analyzed each count of the second amended complaint. As to the
sexual harassment and discrimination claim alleged in count one as to Fairview,
the court found Mendoza was not its employee, and Fairview could not be
vicariously liable for his alleged conduct.
The court highlighted that count one alleges only that Traore met with
Mendoza at a leasing office owned by Fairview and that Fairview allowed
Related and Mendoza to use the leasing office. The court rejected plaintiffs'
argument that absent a certification from a Fairview representative indicating
there was no relationship between Fairview and Mendoza, dismissal as to
Fairview was unwarranted.
2 The record shows that default was entered against Mendoza before the court rendered its decision on the motion to dismiss. A-3345-21 5 In addressing the sexual harassment and discrimination claim alleged in
count one against Related, the court determined it would not impute vicarious
liability to Related because it did not stand to benefit from the harassment
perpetrated by Mendoza. The court cited the agency principles set forth in
Restatement (Second) of Agency § 219 (Am. L. Inst. 1958) and Lehmann to
evaluate Traore's LAD claim. The court considered whether the claim that
Mendoza acted within the scope of his employment, and whether his claimed
quid pro quo offer of favorable action in exchange for sexual favors, sexual
harassment, discrimination, and other conduct rendered Fairview and Related
directly and/or vicariously liable for Traore's damages under the doctrine of
respondent superior, agency, and the LAD. The court relied on an unpublished
Third Circuit decision,3 predicting the New Jersey Supreme Court would apply
the Restatement (Second) of Agency § 219 and Lehmann to find harassment
3 Rule 1:36-3 provides in pertinent part:
No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court.
A-3345-21 6 cases arising in a non-workplace setting actionable under N.J.S.A. 10:5-12(f).
Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 195-96 (2008)
(summarizing N.J.S.A. 10:5-12(f) as making unlawful the denial, refusal, or
withholding of the accommodations, advantages, facilities, or privileges of
public accommodations or to discriminate against any person in the furnishing
thereof on the basis of gender).
The court then summarized the five-part test in the Restatement (Second)
of Agency § 219 where the master is liable for the torts of his or her servants to
address whether plaintiffs pled sufficient allegations supporting their vicarious
liability claim:
(1) A master is subject to liability for the torts of his [or her] servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his [or her] servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences; or
(b) the master was negligent or reckless; or
(c) the conduct violated a non-delegable duty of the master; or
(d) the servant purported to act or speak on behalf of the principal and there was reliance upon apparent
A-3345-21 7 authority, or he [or she] was aided in accomplishing the tort by the existence of the agency relation.
However, the court did not analyze these five factors in dismissing count
one. Instead, the court merely concluded the first count did not allege sufficient
facts to hold Related vicariously liable for Mendoza's conduct. The court
determined count one "does not demonstrate how Mendoza demanding sexual
favors in exchange for . . . housing assistance and a lease helped Related's . . .
business as opposed to hurt Related's . . . business," and that the "requirement"
for Traore to have sex with Mendoza "put another hurdle" in her way to obtain
housing. The court found count one does not explain how Traore's rejection of
Mendoza's sexual advances and Mendoza "failing to give [her] rental housing
advanced Related['s] . . . goal of renting homes to prospective applicants. It
does the opposite."
The court dismissed count one as to Related with prejudice based on its
determination that Mendoza's conduct and the alleged discrimination fell outside
the scope of his employment. The court added plaintiffs had no further facts to
plead and instead filed the second amended complaint hoping to obtain
discovery "to uncover evidence of wrongdoing."
Regarding the aiding and abetting claim asserted in count two, the court
concluded plaintiffs failed to allege Related "encouraged any of the wrongful
A-3345-21 8 conduct against [Traore], that it assisted the wrongdoers," or "was present when
the wrongful conduct occurred," citing Tarr v. Ciasulli, 181 N.J. 70, 84 (2004).
Because plaintiffs did not allege facts establishing how Related's business would
benefit from, or be improved by, Mendoza's quid pro quo offer, the motion court
found plaintiffs failed to assert a cognizable aiding and abetting claim against
Related and dismissed the second count.
The court construed count three, which was simply pled as tortious
conduct, as a claim for the intentional tort of sexual harassment against Related.
In addressing count three, the motion court set forth the elements required to
establish vicarious liability for tortious conduct: "(1) that a master-servant
relationship existed [control]; and (2) that the tortious act of the servant occurred
within the scope of employment," citing Carter v. Reynolds, 175 N.J. 402, 409
(2003).
The court then listed the four requirements that must be met to prove that
the tortious conduct occurred within the scope of an actor's employment:
(a) it is of the kind the employee is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master," citing Restatement (Second) of Agency § 228(1).
A-3345-21 9 The court dismissed count three because plaintiffs simply alleged Related
failed to call Mendoza's former employers as part of its background check.
Accordingly, the court determined plaintiffs' tortious conduct allegation does
not establish vicarious liability against Related for Mendoza's conduct in making
a quid pro quo offer to Traore.
Turning to count four, the court observed plaintiffs failed to allege how
an inadequate background check may have impacted Related's hiring of
Mendoza, or explain how Mendoza's quid pro quo benefitted Related. The
motion court noted a cause of action for negligent hiring requires plaintiffs to
show:
(1) that the employer knew or had reason to know of the particular unfitness, incompetence, or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons; and (2) that, through the negligence of the employer in hiring the employee, the latter's incompetence, unfitness, or dangerous characteristics proximately caused the injury.
[G.A.-H. v. K.G.G., 238 N.J. 401, 416 (2019) (quoting Di Cosala v. Kay, 91 N.J. 159, 173 (1982)) (internal quotation marks omitted).]
In dismissing count four, the court found Mendoza was not acting within
the scope of his employment with Related when he sought "sexual favors" from
A-3345-21 10 Traore to secure housing. The court rejected plaintiffs' contention that
"defendants knew or should have known about the prevalence of foreseeability
of sexual harassment" and "had a duty to prevent sexual harassment and
discrimination from occurring," as conclusory statements unsupported by any
facts alleged in count four.
The court also concluded that plaintiffs' allegation that Related revised its
employee handbook several months after the incident in question to include a
prohibition against the harassment of non-employees, such as residents, is not
evidential because it was a subsequent remedial measure. The court dismissed
count four against Fairview because insufficient facts were alleged to show
Fairview had control over Mendoza.
The court reasoned it had to dismiss Diane's per quod claim pled in count
five because counts one through four were dismissed as to Fairview and Related
and no derivative cause of action could be sustained. A memorializing order
was entered. This appeal followed.
Before us, plaintiffs argue the motion court abused its discretion in
dismissing the second amended complaint as to Related and Fairview with
prejudice. Having considered plaintiffs' allegations in the light most favorable
to them, and having analyzed the relevant law, we: (1) hold Traore—but not
A-3345-21 11 Diane—has stated a viable cause of action in count one of the second amended
complaint under the LAD against Related but not Fairview; (2) affirm the
dismissal of count two against Fairview and Related with prejudice; (3) reverse
dismissal of count three as to Related from with prejudice to without prejudice
to allow plaintiffs the opportunity to file a motion for leave to file and serve a
third amended complaint specifically detailing what tortious conduct allegedly
occurred; (4) reverse dismissal of count four and reinstate the negligent hiring
and supervision/training claim against Related; and (5) affirm dismissal of
Diane's per quod claim under the LAD in count one and reinstate his per quod
claim as to Related in count four.
II.
We review motions to dismiss de novo, applying the same standard as the
trial court. Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 124 (App. Div.
2014) (citation omitted). The court must determine if "a cause of action is
'suggested' by the facts." Printing Mart, 116 N.J. at 746 (quoting Velantzas v.
Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). When doing so, the court
must search "the complaint in depth and with liberality to ascertain whether the
fundament of a cause of action may be gleaned even from an obscure statement
of claim, opportunity being given to amend if necessary." Ibid. (quoting Di
A-3345-21 12 Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div.
1957)).
"[T]he facts as pleaded must be taken to be true for the purposes of the
motion, and the court's 'inquiry is limited to examining the legal sufficiency of
the facts alleged on the face of the complaint.'" Darakjian v. Hanna, 366 N.J.
Super. 238, 248 (App. Div. 2004) (quoting Printing Mart, 116 N.J. at 746). In
ruling on a motion to dismiss pursuant to Rule 4:6-2(e), "the [c]ourt is not
concerned with the ability of plaintiffs to prove the allegation contained in the
complaint[,]" and "plaintiffs are entitled to every reasonable inference of fact."
Printing Mart, 116 N.J. at 746 (citations omitted).
Dismissal for failure to state a claim "should be granted in only the rarest
of instances." Id. at 772. "The examination of a complaint's allegations of fact
required by the [previously stated] principles should be one that is at once
painstaking and undertaken with a generous and hospitable approach." Id. at
746.
III.
A.
Count One
LAD
A-3345-21 13 In count one of their second amended complaint, plaintiffs assert LAD
claims against Fairview and Related for the sexual harassment perpetrated by
Mendoza. Plaintiffs contend count one alleged sufficient facts to show that
sexual harassment occurred: (1) within the scope of Mendoza's employment,
justifying the imposition of vicarious liability against both Fairview and
Related; and (2) as a consequence of Fairview and Related's deficient hiring,
management and/or supervision of Mendoza, Fairview and Related are directly
liable. Regarding count one, plaintiffs also argue the court failed to evaluate
their LAD claim pursuant to the direct liability framework set forth in
Restatement (Second) of Agency § 219 and Lehmann. The court and both
parties agree that Restatement (Second) of Agency § 219 should be applied to
analyze Traore's LAD sexual harassment claim.
The LAD prohibits sexual discrimination in housing and real property
transactions, by making it unlawful:
For any person, including but not limited to, any owner, lessee, sublessee, assignee or managing agent of, or other person having the right of ownership or possession of or the right to sell, rent, lease, assign, or sublease any real property or part or portion thereof, or any agent or employee of any of these: (1) To refuse to sell, rent, lease, assign, or sublease or otherwise to deny to or withhold from any person or group of persons any real property or part of portion thereof because of . . . sex . . . .
A-3345-21 14 [N.J.S.A. 10:5-12(g).]
Our courts have not yet considered the issue of employer liability in the
context of an employee's sexual harassment of a third party in a housing or real
property transaction under subsection (g).
"Sexual harassment is a form of sex discrimination that violates both Title
VII and the LAD." Lehmann, 132 N.J. at 601. Our Supreme Court established
a four-part test for an employee "[t]o state a claim for hostile work environment
sexual harassment." Id. at 603-04. The first Lehmann prong requires the
plaintiff to allege the harassment "occurred because of their sex," or "would not
have occurred but for" their sex. C.V. Waterford Twp. Bd. of Educ., 255 N.J.
289, 296 (2023); see also Lehmann, 132 N.J. at 603. The Lehmann Court held
that the "first prong will automatically be satisfied when the plaintiff alleges
sexual touching, which by nature occurs because of a person's sex." C.V. at 3.
"When the harassing conduct is sexual or sexist in nature, the but-for element
will automatically be satisfied." Id.
Here, the court correctly dismissed count one against Fairview. It never
employed Mendoza, who is an employee of the independent contractor Related,
and LAD liability cannot be imposed on an entity for the discriminatory conduct
of the employee of an independent contractor. See Majestic Realty Assocs. v.
A-3345-21 15 Toti Contracting Co., 30 N.J. 425, 430-31 (1959). In Majestic Realty
Associates, our Court noted it has long been the rule in New Jersey that one who
hires an independent contractor is not responsible for the latter's negligent acts.
Id. at 430-31. The Court held there are three exceptions that apply:
(1) where one retains control over the manner and means by which the work is to be performed;
(2) where the work constitutes a nuisance per se; or
(3) where on knowingly engaged an incompetent contractor.
None of these exceptions apply to Fairview based upon the factual record.
Because Fairview and Mendoza are not in a master-servant relationship by virtue
of Related's independent contractor status, Restatement (Second) of Agency §
219 does not apply and therefore it would be inappropriate to hold Fairview
liable for Mendoza's discriminatory conduct. See E.S. for G.S. v. Brunswick
Inv. Ltd. P'ship, 469 N.J. Super. 279, 290 n. 5 (App. Div. 2021).
However, the court erred in dismissing count one against Related because
Restatement (Second) of Agency § 219 does apply to a master-servant
relationship, such as the employment relationship between Related and
Mendoza. Traore has sufficiently pled an LAD claim against Related because
Mendoza's touching of Traore and quid pro quo offer of an apartment and
A-3345-21 16 financial assistance in exchange for sex was intended to benefit Related by
leasing a Fairview apartment if she acceded to his demands. We also conclude
Traore sufficiently pled a vicarious liability claim against Related under the
Restatement (Second) of Agency § 219(d)(2). When a vicarious liability claim
is asserted, the factfinder is required to engage in a "detailed fact -specific
analysis," and answer each of the following four questions:
(1) Did the employer delegate the authority to the supervisor to control the situation of which the plaintiff complains . . .?
(2) Did the supervisor exercise that authority?
(3) Did the exercise of authority result in a violation of [the LAD]?
(4) Did the authority delegated by the employer to the supervisor aid the supervisor in injuring the plaintiff?
If each of these questions are answered in the affirmative, then the employer is vicariously liable for the supervisor's harassment under [Restatement] § 219(2)(d).
[Aguas v. State, 220 N.J. 494, 514 (2015) (quoting Lehmann, 132 N.J. at 620).]
Here, we find Traore sufficiently pled that Mendoza was aided by
agency—according to Restatement (Second) of Agency § 219(d)(2)—because,
in his position as Related's manager, he undertook the discriminatory conduct in
A-3345-21 17 the form of sexual harassment as part of an effort to obtain tenants for Rela ted's
benefit. Thus, count one is reinstated, as to Related, so that the factfinder can
consider the above-mentioned four-part test to determine whether Related is
vicariously liable for Mendoza's conduct. Regardless of the factfinder's ultimate
conclusion, these allegations, as they currently stand, support a cause of action
against Related for vicarious liability under Lehmann and Restatement (Second)
of Agency § 219(d)(2).
We further conclude Traore sufficiently pled a direct negligence claim
against Related under the Restatement (Second) of Agency § 219(2)(b). When
a direct negligence claim is asserted, the factfinder must consider five factors:
(1) formal policies prohibiting harassment in the workplace;
(2) complaint structures for employees' use, both formal and informal in nature;
(3) anti-harassment training, which must be available to all employees of the organization;
(4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and
(5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.
A-3345-21 18 [Aguas, 220 N.J. at 513.]
Here, Related asserts that it should be insulated from liability because it
had anti-harassment training and policies in place for its employees. We
disagree. Although an employer's anti-harassment policy "is a critical factor in
determining negligence and recklessness claims under Restatement §
219(2)(6)," it is an affirmative defense to liability and thus is irrelevant to
determining whether plaintiff has stated a claim under the LAD. See Aguas v.
State, 220 N.J. at 499-500. Thus, based upon our de novo review, we conclude
the court erred when it dismissed count one as to Related.
B.
Count Two
Aiding and Abetting Under the LAD
A plaintiff proves aiding and abetting against an employer under the LAD
by showing that:
(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his [or her] role as part of an overall illegal or tortious activity at the time that he [or she] provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.
[Tarr, 181 N.J. at 84 (quoting Hurley v. Atl. City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999)).]
A-3345-21 19 A claim for aiding and abetting "require[es] active and purposeful
conduct." Cicchetti v. Morris Cnty. Sheriff's Off., 194 N.J. 563, 594 (2008)
(citation omitted). Aiding and abetting liability focuses on "whether a defendant
knowingly gave substantial assistance to someone engaged in wrongful conduct,
not on whether the defendant agreed to join the wrongful conduct." Podias v.
Mairs, 394 N.J. Super. 338, 353 (App. Div. 2007) (citation, internal quotations
and emphasis omitted). To prove an aiding and abetting claim under the LAD,
"a plaintiff must show that '(1) the party whom the defendant aids must perform
a wrongful act that causes an injury; (2) the defendant must be generally aware
of his role as part of an overall illegal or tortious activity at the time he provides
the assistance; [and] (3) the defendant must knowingly and substantially assist
the principal violation.'" Tarr v. Ciasulli, 181 N.J. at 84 (alteration in original)
(quoting Hurler v. Atl. City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999)).
In our view, plaintiffs' second amended complaint does not allege any
facts supporting a claim for aiding and abetting against Fairview or Related.
Because plaintiffs have not alleged that Fairview and Related were aware of
Mendoza's role in bargaining for sex or placed him in a position of authority for
the purpose of furthering this violation, these facts fail to support an aiding and
abetting claim. See Tarr, 181 N.J. at 84.
A-3345-21 20 Specifically, although the second amended complaint alleged Fairview
owned the property that Related was charged with leasing and the leasing office
in which Mendoza worked, which displayed Fairview's signage, these
allegations do not support Fairview "knowingly and substantially assisted"
Mendoza in sexually harassing Traore. Simply stated, they do not allege
Fairview encouraged or assisted, let along knew about Mendoza's wrongful
conduct. See Tarr, 181 N.J. at 85 (finding owner of automobile franchise was
not individually liable to employee under LAD as an aider and abettor of sexual
harassment of employee; there was no evidence that owner encouraged any of
the wrongful conduct against the employee, that he assisted the wrongdoers, or
that he was even present when the wrongful conduct occurred; and at best, the
owner negligently supervised his employees). Thus, the court correctly
dismissed count two as to Fairview.
We likewise find count two does not state a viable aiding and abetting
claim against Related. Plaintiffs alleged Related hired Mendoza for a
managerial position without conducting proper background checks or
implementing effective anti-harassment policies and training after he was hired
and prior to the incident in question. These allegations fall short of the active,
knowing, and purposeful conduct required to establish liability for aiding and
A-3345-21 21 abetting. See Tarr, 181 N.J. at 85. Thus, the court properly dismissed plaintiffs'
aiding and abetting claim against Fairview and Related with prejudice.
C.
Count Three
Tortious Conduct
Count three of the second amended complaint merely avers that
defendants' conduct "was tortious in nature," without setting forth any facts
establishing the elements of a cause of action that resulted in damages to
plaintiffs. The failure to satisfy the fundamental requirement that a complaint
"state the essential elements of a cause of action," Zoneraich v. Overlook
Hospital, 212 N.J. Super. 83, 101 (App. Div. 1986), serves as a basis to dismiss
the third count with prejudice because the claim is vague and conclusory.
We note that the court construed count three as a claim for "the intentional
tort of sexual harassment" based on the alleged violations of the LAD pled in
count one. Regardless, dismissal of count three with prejudice as to Related is
unwarranted and premature at this juncture because the pleading standard might
be met upon amending the second complaint. When determining the adequacy
of a pleading, we must search the complaint thoroughly "and with liberality to
ascertain whether the fundament of a cause of action may be gleaned even from
A-3345-21 22 an obscure statement of claim, opportunity being given to amend if necessary."
Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171.
It is the existence of the fundament of a cause of action that is pivotal.
Teamsters Local 97 v. State, 434 N.J. Super. 393, 412 (App. Div. 2014). We
therefore reverse the dismissal with prejudice as to count three so that plaintiffs
may be given the opportunity to amend and sufficiently establish a fundament
of a cause of action against Related based on Mendoza's alleged tortious
conduct.
D.
Count Four
Negligent Hiring and Supervision/Training
"An employer whose employees are brought into contact with members
of the public in the course of their employment is responsible for exercising a
duty of reasonable care in the selection or retention of its employees." Di
Cosala, 91 N.J. at 170-71. "Unlike respondent superior, negligent hiring,
supervision, and training are not forms of vicarious liability and are based on
the direct fault of an employer. G.A.-H., 238 N.J. at 415. The tort of negligent
hiring has two fundamental requirements. Ibid.
A-3345-21 23 The plaintiff first must show that irrespective of whether the employee
was acting within the scope of his or her employment:
(1) that the employer "knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons" and (2) "that, through the negligence of the employer in hiring the employee, the latter's incompetence, unfitness or dangerous characteristics proximately caused the injury."
[Ibid. (quoting Di Cosala, 91 N.J. at 173).]
The tort of negligent supervision or training similarly requires that the employer
"knew or had reason to know that the failure to supervise or train an employee
in a certain way would create a risk of harm" and the "risk of harm materializes
and causes the plaintiff's damages." Ibid.
Here, we conclude the second amended complaint adequately sets forth a
cause of action against Related for the torts of negligent hiring and negligent
supervision or training. It is well established that if a fundament of a cause of
action can be gleaned from even an obscure statement then the complaint should
survive the preliminary stage. Printing Mart, 116 N.J. at 746. Although
plaintiffs' second amended complaint was bare bones in nature, we are satisfied
from the particular claims asserted—such as the incomplete background check
and ineffective anti-harassment policies and trainings—that the second amended
A-3345-21 24 complaint was legally sufficient to withstand a dismissal under Rule 4:6-2(e).
Therefore, count four was improperly dismissed and is reinstated as to Related
only.
E.
Count Five
Per Quod Claim
Diane's per quod claim for loss of consortium and reimbursement for
payment of his wife Traore's medical expenses pled in count five is reinstated
as to count four only. It is well settled that a per quod claim is a derivative
claim, not a separate cause of action. Weir v. Mkt. Transition Facility, 318 N.J.
Super. 436, 444 (App. Div. 1999). Such claims must be joined with the primary
claim in a single action, and the derivative claim can rise no higher than the
claim of the other spouse. Ibid. (quoting Tichenor v. Santillo, 218 N.J. Super.
165, 173 (App. Div. 1987)).
Here, even though we have reinstated Traore's cause of action for
violations of the LAD against Related in count one, Diane's per quod claim as
to that count is not viable because per quod damages are not recoverable under
the LAD. Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 500 (App.
A-3345-21 25 Div. 1994). Our reversal of Traore's negligence cause of action in count four,
however, operates to reinstate Diane's per quod claim on that count.
To the extent that we have not specifically addressed plaintiffs' remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with our opinion. We do not retain jurisdiction.
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