CHARLES S. HOTTENSTEIN,

Administrator for the Estate

of Tracy Hottenstein; CHARLES

S. HOTTENSTEIN; and ELIZABETH

K. HOTTENSTEIN

Plaintiffs,

v.

CITY OF SEA ISLE CITY; et al.,

Defendants.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-740

(JEI/JS)

OPINION

APPEARANCES:

THE WESCOTT LAW FIRM, P.C.

By: Lyanne B. Wescott, Esq.

239 South Camac Street

Philadelphia, Pennsylvania 19107

Counsel for Plaintiff

POWELL, BIRCHMEIER,& POWELL, P.C.

By: James R. Birchmeier, Esq.

1891 State Highway 50

P.O. Box 582

Tuckahoe, New Jersey 08250

Counsel for Defendants Sea Isle City, Harold Boyer,

Thomas McQuillen, and Vincent Haugh

FOX ROTHSCHILD, L.L.P.

By: Eric M. Wood, Esq.

1301 Atlantic Avenue, Suite 400

Atlantic City, New Jersey 08401

Counsel for Defendants Atlantic Regional Medical

Center, Atlanticare MICU Medics at Base 3, and Atlantic

City Medical Center

BLUMBURG AND LINDER, L.L.C.

By: Jay J. Blumburg, Esq.

158 Delaware Street

P.O. Box 68

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Woodbury, New Jersey 08096

Counsel for Defendant Zaki Khebzou

CAMACHO MAURO MULHOLLAND, LLP

By: Christopher C. Mauro, Esq.

350 Fifth Avenue, Suite 5101

New York, New York 10118

Counsel for Defendants Landis Thirty Nine, Inc., Jersey

Shore Properties, LLC, Michael Roberts, Ralph Pasceri,

and Joseph Roberts

MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS

By: Stephen Ledva, Jr., Esq.

2070 Springdale Road, Suite 400

Cherry Hill, New Jersey 08003

Counsel for Defendants Bennett Enterprises, Inc., Paul

Baldini, and James J. Bennett

PRUTTING & LOMBARDI ESQS.

By: Marilou Lombardi, Esq.

701 South White Horse Pike

Audubon, New Jersey 08106

Counsel for Defendants Mark Lloyd and Patricia Lloyd

WHITE, FLEISCHNER, & FINO, L.L.P.

By: Brian Michael Thon, Esq.

2137 Route 35

Holmdel Corporate Plaza

Holmdel, New Jersey 07733

Counsel for Defendant Michael Miloscia

IRENAS, Senior District Judge:

This wrongful death / survivorship suit arises out of the

untimely and tragic death of Tracy Hottenstein. Presently 1

before the Court are Motions for Judgment on the Pleadings

pursuant to Federal Rule of Civil Procedure 12(c) filed by

Defendants Zaki Khebozou and Atlanticare Regional Medical Center,

The Court exercises subject matter jurisdiction pursuant

1

to 28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28

U.S.C. § 1367.

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Atlanticare MICU Medics at Base 3, and Atlantic City Medical

Center (collectively “ARMC”). 

I.

Sometime after 2:15 a.m. on February, 15, 2009, in Sea Isle

City, Tracy Hottenstein, who was intoxicated at the time, fell

off a public dock into the ocean below. The Complaint avers that

the weather was 35 degrees Fahrenheit and windy. Several hours

later, Tracy was discovered unresponsive on the ground near the

dock. 

Tracy was visiting Sea Isle City for the annual “Polar Bear

Plunge,” an event which the Complaint alleges is intended to

“benefit the town economy and allow local businesses to make

money in the winter season from the thousands of visitors

expected.” (Compl. ¶ 29.) However, Tracy did not participate in

the organized plunge into the Atlantic Ocean. She only came to

“attend[] the festivities,” including “visiting the local bars”

with her friends. (Id. ¶ 38.) According to the Complaint, over 2

the course of several hours on February 14, 2009, Tracy visited

three bars and a friend’s house where she consumed alcohol.3

The Complaint avers what happened next: 

The Complaint asserts that Tracy was 35 years old.

2

(Compl. ¶ 36.)

For a more detailed discussion of these events, see

3

Hottenstein v. Sea Isle, --- F.Supp. 2d ---, 2011 WL 2470043

(D.N.J. 2011).

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[v]ideo shows that [Tracy] without any outdoor clothing

on, followed [her fiend] Miloscia out of the Ocean Drive

bar at or about 2:15 a.m. on February 15, 2009. . . .

Miloscia at some point abandoned [Tracy] . . . . [Tracy]

in her intoxicated state[,] wandered to the dark,

dangerous public docks from the Ocean Drive bar, fell

off into the dark icy water and struggled out to the

location she was found the morning of February 15, 2009.

(Compl. ¶¶ 60-62.)

The Sea Isle City police officers who arrived at the scene

determined, based solely on feeling for a carotid pulse, that

Tracy was deceased. (Id. ¶ 75.) When the Sea Isle City

Volunteer Ambulance Corps arrived at the scene at 7:52 a.m., they

viewed Tracy from a distance of twenty feet and reported her

“dead on arrival” without examination. (Id. ¶ 77-78.) At 8:13

a.m., Atlanticare MICU medics, a mobile trauma team associated

with Atlanticare Regional Medical Center, arrived on the scene

and observed Tracy from a distance of six feet. (Id. ¶ 80.) 4

Despite the fact that no medical treatment had been administered

and no examination of Tracy conducted, an Atlanticare medic

telephoned Defendant Zaki Khebzou, Trauma Chief, who pronounced

Tracy dead at 8:22 a.m. over the phone. (Id. ¶ 84, 86.) 5

The Complaint alleges the following claims against the

moving Defendants: (1) negligence; (2) negligent hiring,

The Sea Isle police officers allegedly prevented anyone 4

from approaching Tracy or rendering medical treatment. (Compl.

¶¶ 76-77, 80.)

 Defendant Zaki Khebzou is an M.D. 5

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supervision and retention; (3) vicarious liability (only against

ARMC); (4) negligent infliction of emotional distress upon

Plaintiffs (Tracy’s parents); (5) a survival claim; (6) wrongful

death; and (7) a claim pursuant to New Jersey’s Civil Rights Act,

N.J.S.A. 10:6-1 et seq.

Defendants Khebzou and ARMC move for judgment on the

pleadings pursuant to Fed. R. Civ. P. 12(c), arguing that all

claims against them should be dismissed.

II.

Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings

are closed--but early enough not to delay trial--a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A Rule

12(c) Motion for Judgment on the Pleadings is subject to the same

standard of review as a Rule 12(b)(6) Motion to Dismiss. Turbe

v. Gov’t of V.I., 938 F.2d 427, 428 (3d Cir. 1991); see also

Spruell v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004); Collins

v. F.B.I., 2011 WL 1624025, at *4 (D.N.J. April 28, 2011). 

Federal Rule of Civil Procedure 12(b)(6) provides that a

court may dismiss a complaint “for failure to state a claim upon

which relief can be granted.” In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to

relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.

8(a)(2). 

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While a court must accept as true all allegations in the

plaintiff’s complaint, and view them in the light most favorable

to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008), a court is not required to accept sweeping

legal conclusions cast in the form of factual allegations,

unwarranted inferences, or unsupported conclusions. Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The

complaint must state sufficient facts to show that the legal

allegations are not simply possible, but plausible. Phillips,

515 F.3d at 234. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009).

III.

A.

Defendants Khebzou and ARMC argue that they are entitled to

immunity under N.J.S.A. § 26:2K-29, which provides:

No EMT-intermediate, licensed physician,

hospital or its board of trustees, officers

and members of the medical staff, nurses or

other employees of the hospital, or officers

and members of a first aid, ambulance or

rescue squad shall be liable for any civil

damages as the result of an act or the

omission of an act committed while in training

for or in the rendering of intermediate life

support services in good faith and in

accordance with this act. 

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N.J.S.A. § 26:2K-29 (emphasis added). This act only provides

immunity for an act or omission made in connection with the

“rendering of intermediate life support services.” 

N.J.S.A. § 26:2K-21(i) defines “intermediate life support

services” as “an intermediate level of pre-hospital, interhospital, and emergency service care which includes basic life

support functions, cardiac monitoring, cardiac defibrillation, 6

the use of the esophageal obturator airway, and the use of

military anti-shock trousers and other techniques and procedures

authorized by the commissioner[.]” N.J.S.A. § 26:2K-21(i). 

Here, there appears to be no dispute that Defendants Khebzou

and ARMC did not provide any life support services. Rather,

moving Defendants argue that their decision to not provide life

support services is an omission to act, protected by the immunity

provision of N.J.S.A. § 26:2K-29. (Khebzou Br. at 10; ARMC Br. 7

at 9.) However, immunity under the Act is provided only “for

“Basic life support” means “a basic level of pre-hospital

6

care which includes patient stabilization, airway clearance,

cardiopulmonary resuscitation, hemorrhage control, initial wound

care and fracture stabilization and other techniques and

procedures authorized by the commissioner[.]” N.J.S.A. § 26:2K21(b).

ARMC also contends that their “visual observations” of

7

Tracy’s body and the phone call to Defendant Khebzou “are

encompassed in the rendering of intermediate life support

services.” (ARMC Reply at 7.) However, ARMC cites no case law to

substantiate such a position which is not supported by the plain

language of the immunity provision and the statutory definition of

“intermediate life support services.”

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negligence in connection with the actual rendering of life

support services.” DeTarquino v. City of Jersey City, 352

N.J.Super. 450, 452 (App. Div. 2002). 

The Complaint alleges that Defendant Khebzou improperly

declared Tracy dead without seeing her, examining her or ordering

any pre-hospital care. (Compl. ¶¶ 86-90, 105, 108.) With

respect to ARMC, the Complaint alleges that they breached their

duty to act and provide emergency medical care. (Id. ¶¶ 81, 82.) 

The basis of Plaintiffs’ negligence claim against moving

Defendants is that they were negligent in failing to render

intermediate or basic life support services. Thus, they are not

entitled to immunity as they did not omit to act “while . . . in

the rendering of intermediate life support services” as required

by the plain language of the statute. N.J.S.A. § 26:2K-29. 

Accordingly, Defendant Khebzou’s and ARMC’s Motions with

respect to Counts One, Two, Three, Five, Six and Seven will be

denied. 

B.

A claim for negligent infliction of emotional distress

(“NIED”) requires proof of the following elements: “(1) the

death or serious physical injury of another caused by defendant’s

negligence; (2) a marital or intimate, familial relationship

between plaintiff and the injured person; (3) observation of the

death or injury at the scene of the accident; and (4) resulting

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severe emotional distress.” Portee v. Jaffee, 84 N.J. 88, 101

(1980). 

Defendants Khebzou and ARMC move to dismiss the NIED claim

against them, arguing that Plaintiffs cannot establish prong

three because they were not present at the scene of the accident

and therefore did not observe Tracy’s death or injury. (Khebzou

Br. at 13; ARMC Br. at 13.) Plaintiffs point out that there is a

question of fact regarding exactly when and where Tracy died of

hypothermia. Therefore, they argue, “[i]t will be a jury

question as to whether the gruesome idea that their daughter may

have been zipped into a body bag while still alive and their

subsequent exposure to same is a ‘shocking event’ adequate to

fulfill the ‘observation’ element of the this claim.” (Pls’ Opp.

at 11.) 

The allegations in the Complaint do not implicate

Plaintiffs’ contemporaneous perception of their daughter’s injury

or death for the purposes of maintaining an NIED claim. 

According to the Complaint, Plaintiffs were notified of Tracy’s

death “in the early afternoon of February 15, 2009, by two local

police officers who came to their home in Montgomery County,

Pennsylvania.” (Compl. ¶ 112.) Plaintiffs were not present in

Sea Isle City, the site of Tracy’s injury and the location where

she was pronounced dead. Moreover, Plaintiffs do not even allege

that they witnessed Tracy being “zipped into a body bag,” merely

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that the “gruesome idea” of it was a shocking event. 

Thus, while “[d]iscovering the death or serious injury of an

intimate family member will always be expected to threaten one’s

emotional welfare,” a family member who was not a witness at the

scene of the accident causing death or serious injury cannot

sustain a cause of action for NIED. Portee, 84 N.J. at 99-100. 

Accordingly, Defendant Khebzou’s and ARMC’s Motions will be

granted with respect to Plaintiffs’ NIED claim in Count Five. 

C.

Defendants Khebzou and ARMC move to dismiss the claims under

the New Jersey Civil Rights Act (“NJCRA”) arguing that they did

not act under color of state law. 

NJCRA provides, in relevant part,

[a]ny person who has been deprived of any substantive

due process or equal protection rights, privileges or

immunities secured by the Constitution or laws of the

United States, or any substantive rights, privileges

or immunities secured by the Constitution or laws of

this State, or whose exercise or enjoyment of those

substantive rights, privileges or immunities has been

interfered with or attempted to be interfered with,

by threats, intimidation or coercion by a person

acting under color of law, may bring a civil action

for damages and for injunctive or other appropriate

relief.

N.J.S.A. § 10:6-2(c).

Since “[t]his district has repeatedly interpreted NJCRA

analogously to § 1983,” see Pettit v. New Jersey, No. 09-3735,

2011 U.S. Dist. LEXIS 35452 at *3 (D.N.J. Mar. 30, 2011), this

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Court will look to the color of law analysis for § 1983 claims. 

The Third Circuit has most recently explained,

[a]lthough there is no simple line between state and

private actors, we have explained that the principal

question at stake is whether there is such a close

nexus between the State and the challenged action that

seemingly private behavior may be fairly treated as

that of the State itself. To answer that question, we

have outlined three broad tests generated by Supreme

Court jurisprudence to determine whether state action

exists: (1) whether the private entity has exercised

powers that are traditionally the exclusive prerogative

of the state; (2) whether the private party has acted

with the help of or in concert with state officials;

and (3) whether the state has so far insinuated itself

into a position of interdependence with the acting

party that it must be recognized as a joint participant

in the challenged activity. 

Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)(internal citations

and quotations omitted).

Plaintiffs argue that Defendants Khebzou and ARMC acted

under color of state law when they followed procedures set forth

in the New Jersey Administrative Code regarding the pronouncement

of death and other standards of medical care. (Pls’ Opp. to 8

Khebzou at 11-12.) This argument lacks merit, as compliance with

state standards or engagement in an activity regulated by the

state does not convert a private party into a state actor for the

purposes of the NJCRA. Moreover, Plaintiffs’ NJCRA claim also

Plaintiffs’ bare speculation that ARMC “acted jointly with

8

the police” is insufficient to state a claim under the NJCRA.

(Pls’ Opp. to ARMC Motion at 13.) Such a conclusory allegation

does not satisfy the “fact-specific” “inquiry” required by the

state actor analysis. Kach, 589 F.3d at 646.

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fails because the Complaint does not plead that Tracy’s rights

were violated “by threats, intimidation, or coercion” as clearly

required by the statute. N.J.S.A. § 10:6-2(c).

Accordingly, Defendant Khebzou’s and ARMC’s Motions with

respect to the NJCRA claim asserted against them in Count

Thirteen will be granted. 

IV.

For the foregoing reasons, Defendant Khebzou’s and ARMC’s

Motions for Judgment on the Pleadings will be granted with

respect to Plaintiffs’ NIED and NJCRA claims only. An

appropriate order will be issued. 

Dated: August 18, 2011

 s/Joseph E. Irenas 

JOSEPH E. IRENAS, S.U.S.D.J.

 

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