NOT FOR PUBLICATION (Doc. No. 76)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

_____________________________________

:

NICHOLAS P. WORRALL, :

:

Plaintiff, : Civil No. 11-3750 (RBK/JS)

:

v. : OPINION

:

CITY OF ATLANTIC CITY, et al., :

:

Defendants. :

____________________________________ :

KUGLER, United States District Judge:

This matter comes before the Court upon the motion of Caesars a/k/a Caesars 

Entertainment (“Caesars”), Dusk Night Club (“Dusk”), Gary Veloric, AC Nightlife, LLC, and 

Red Stripe Plane Group (collectively “Defendants”) for summary judgment on the claims 

asserted against them in the Amended Complaint of Nicholas P. Worrall (“Plaintiff”). For the 

reasons expressed herein, Defendants’ motion will be GRANTED IN PART.

I. BACKGROUND 

This matter arises out of events that took place at a nightclub in Atlantic City, New Jersey 

in the early morning hours of September 5, 2010. Defendants’ Statement of Undisputed Material 

Facts (“SUMF”) ¶ 1. On that date, Plaintiff alleges that he was assaulted both inside the Dusk

Night Club and afterward by police. Id. Plaintiff alleges that he was first attacked by Donald 

Scott Brummett, a security guard at Dusk, who is also referred to at times in the record as a 

“bouncer.” Id. After leaving the club, Plaintiff indicates that he was approached by Atlantic 

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City police officers including Officer Sterling Wheaten, who he alleges further assaulted and 

beat him without justification. Am. Compl ¶ 2.1

 

Based on these alleged events, Plaintiff filed suit on June 30, 2011. In the Amended 

Complaint, Plaintiff asserted a number of claims against Atlantic City, its police department, and 

Officer Wheaton. In Count V of the Amended Complaint, Plaintiff asserts a negligence claim 

against the moving defendants for alleged negligent hiring, and negligent failure to train or 

supervise employees. In Counts VI and VII, he asserts assault and negligence claims against 

Brummett, and also seeks to hold the moving defendants vicariously liable for Brummett’s 

actions. 

The relationship between the moving defendants is as follows. AC Nightlife, LLC 

operates under the trade name of Dusk, and operates a nightclub in Caesar’s Atlantic City Hotel 

in New Jersey. SUMF ¶¶ 4-5. Red Stripe Plane Group is an affiliate of AC Nightlife, LLC, and 

Gary Veloric is the principal equity owner of Red Stripe Plane Group and AC Nightlife, LLC. 

SUMF ¶¶ 6-7. Each of these defendants has now moved for summary judgment on all of 

Plaintiff’s claims against them. 

II. LEGAL STANDARD

The court should grant a motion for summary judgment when the moving party “shows 

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter 

the outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a 

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 

Matsushida Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the 

1 Further detail as to Plaintiff’s allegations against the police defendants may be found in the Court’s Opinion on 

Atlantic City’s motion for summary judgment. See Opinion, Aug. 20, 2013, at 2-3 (ECF Doc. No. 66). 

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record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, 

there is no ‘genuine issue for trial.’”) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 

391 U.S. 253, 289 (1968)). In deciding whether there is any genuine issue for trial, the court is 

not to weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and 

credibility determinations are for the jury, the non-moving party’s evidence is to be believed and 

ambiguities construed in its favor. Id. at 255; Matsushida, 475 U.S. at 587. 

Although the movant bears the burden of demonstrating that there is no genuine issue of 

material fact, the non-movant likewise must present more than mere allegations or denials to 

successfully oppose summary judgment. Anderson, 477 U.S. at 256. The nonmoving party must 

at least present probative evidence from which the jury might return a verdict in his favor. Id. at 

257. The movant is entitled to summary judgment where the non-moving party fails to “make a 

showing sufficient to establish the existence of an element essential to that party’s case, and on 

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986). 

III. DISCUSSION

A. Negligent Hiring

The New Jersey Supreme Court has recognized that a negligent hiring claim differs from 

a claim based on the theory of respondeat superior. DiCosala v. Kay, 91 N.J. 159, 168-70

(1982). The tort of negligent hiring is based on the theory that employers should be accountable 

for their own negligence in exposing the public to potentially dangerous individuals, while 

respondeat superior liability requires no negligence on the part of an employer, but rather is 

based on the theory that an employee's actions are done on behalf of the employer. Id. at 169-70. 

Thus, while liability in respondeat superior claims is limited to actions taken by employees in the 

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scope of their employment, negligent hiring claims can arise even for actions that are outside of 

the scope of employment, where an employer “knew or should have known that the employee 

was violent or aggressive, or that the employee might engage in injurious conduct toward third 

persons.” Id. at 173. 

To support a claim for negligent hiring, it must be shown “whether the risk of harm from 

the dangerous employee to a person such as the plaintiff was reasonably foreseeable as a result of 

the employment.” Id. at 174. To prove this, a plaintiff must satisfy two fundamental 

requirements. First, it must be shown that the employer had actual or constructive notice of 

dangerous attributes of an employee and “could reasonably have foreseen that such qualities 

created a risk of harm to other persons.” Id. at 173. Second, a plaintiff must show that “through 

the negligence of the employer in hiring the employee, the latter’s incompetence, unfitness or 

dangerous characteristics proximately caused the injury.” Id. at 174. In determining what an 

employer should have known, it is settled doctrine that “[f]oresight, not hindsight, is the standard 

by which one's duty of care is to be judged." Johnson v. Usdin Louis Co., 248 N.J. Super. 525, 

529 (App. Div. 1991) (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)). 

The Court finds that neither requirement has been met in this case. There is no evidence 

in the record that suggests that Defendant had or should have had notice of unfitness, 

incompetence or dangerous attributes with respect to Brummett. An undated “Employee 

Evaluation” of Brummett indicates that the supervisor who completed it believed that Brummett 

“shows great leadership skills and the perfect mentality for this line of work,” and that he was 

“one of the best employee’s [sic] we have.” Def. Mot. Summ. J. Ex. F. The record also 

indicates that Dusk ran a background check on Brummett at the beginning of his employment.

Id. Ex. E. 

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The only evidence Plaintiff points to in support of his argument that Brummett’s 

employers had actual or constructive notice of dangerous attributes is Brummett’s testimony at 

his deposition that he suffered from Posttraumatic Stress Disorder (“PTSD”) as a consequence of 

previous military service. Brummett Dep. 22-23, Pl. Opp’n Ex. 1. Plaintiff has also submitted a 

report from Dr. Matthew J. Friedman, indicating that “[t]here is growing evidence, especially 

among military veterans, that PTSD . . . predicts aggressive behavior and violence among 

veteran cohorts following deployment to Vietnam, Iraq and Afghanistan.” Friedman Letter, Jan. 

8, 2013, Pl. Opp’n Ex. 2. Dr. Friedman did not examine Brummett, and none of his findings are 

particularized whatsoever with respect to Brummett. Id. However, Plaintiff argues that if Dusk 

had contacted the Borgata Casino, Brummett’s prior employer, and requested his employment 

file, it would have shown that the file included a letter indicating that Brummett was scheduled 

in 2010 to “be evaluated for any service connected disabilities at a Veterans Administration 

medical facility for a period of six weeks starting in January.” VA Letter, Jan. 6, 2010, Pl. 

Opp’n Ex. 3. The letter does not indicate that the evaluation would be related to PTSD, nor has 

Plaintiff submitted any evidence in connection with this motion indicating that Brummett 

actually was evaluated by the VA in January 2010, or that such evaluation was related to PTSD.2

Plaintiff’s argument falls short of creating an issue of material fact for trial. First, he has 

cited no law that requires a hiring employer to obtain employment files from past employers. 

Second, even if Dusk had obtained the file from Borgata, the letter in Brummett’s file indicates 

nothing that would cause a reasonable employer to believe that Brummett had any dangerous 

attributes. Third, even if the letter had referred specifically to PTSD, Plaintiff has not established 

2 Plaintiff did move to compel production of Brummett’s VA records so that he could examine any medical and 

mental health records regarding Brummett’s PTSD. Pursuant to a Memorandum Opinion and Order dated July 17, 

2013, Magistrate Judge Schneider denied Plaintiff’s motion, and this Court subsequently denied an appeal of Judge 

Schneider’s decision. See ECF Doc. Nos. 61, 80. 

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that this would even constitute actual or constructive notice of a dangerous attribute. Plaintiff’s 

own letter from Dr. Friedman explains that “not . . . all individuals with PTSD express such 

aggressive behavior but rather . . . this is a recognized symptom of PTSD which is understood as 

one possible manifestation of the disorder.” Friedman Letter, Jan. 8, 2013. Thus, Defendants 

had no actual or constructive notice of any incompetence or dangerous attributes of Brummett, 

and the first requirement for a negligent hiring claim is not met. See DiCosala, 91 N.J. at 173. 

Because Plaintiff has uncovered no evidence through discovery showing a genuine dispute of 

material fact as to whether Defendant was negligent in hiring Brummett, summary judgment 

must be granted as to this claim.

B. Negligent Supervision

Like the tort of negligent hiring, negligent supervision is separate from the theory of 

respondeat superior, because it requires negligence on the part of the employer and extends to

acts committed outside of the scope of employment. Dixon v. CEC Entm’t, Inc., 2008 WL 

2986422, at *18 (N.J. Super. Ct. App. Div. Aug. 6, 2008) (citing Hoag v. Brown, 397 N.J. Super. 

34, 54 (App. Div. 2007)). Employers have a duty to supervise employees, and liability may be 

imposed if an employer fails to perform that duty. Id. An employer is only liable for negligent 

supervision, however, if all of the requirements of a tort action in negligence exist, which are 

duty, breach of duty, causation and injury. Id. To sustain his claim of negligent supervision, 

Plaintiff must show a dispute of material fact concerning whether Defendants should have 

reasonably foreseen that Brummett would intentionally or negligently injure a customer during 

the performance of his duties, and that such injury could have been prevented through proper 

supervision.

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The Court finds that there is insufficient evidence to support a negligent supervision 

claim. To determine whether Defendants reasonably could have foreseen the alleged conduct, 

the personal and professional histories of Defendants’ employees are the only evidentiary factor 

on the record to be examined. Here, Plaintiff’s attorney deposed Brummett and sought to 

uncover dangerous predispositions that could make the alleged events foreseeable to Defendants. 

Having found no evidence, Plaintiff simply asserts the existence of a cause of action for 

negligent supervision and the legal conclusion that Defendants “failed to adequately instruct and 

supervise Brummett as to his duties and responsibilities as a bouncer during his employment at 

Dusk.” Pl. Opp’n at 6. Without evidence in the record to support this conclusion, Plaintiff has 

failed to create a triable issue of material fact as to whether any defendant negligently supervised 

Brummett. Further, he has not demonstrated causation, in that the record is devoid of any facts 

that permit the conclusion that Plaintiff’s injuries would have been avoided if Defendants 

supervised their security staff differently. Therefore, summary judgment will be granted on this 

claim. 

C. Negligent Training 

As with the negligent supervision claim, in order to establish a prima facie case for 

negligent training, Plaintiff must prove facts sufficient to sustain a claim of negligence. In this 

case, those elements would be that (1) Defendants owed a duty to Plaintiff to properly train their

employees; (2) Defendants breached that duty; (3) Defendants’ breach of the duty to 

appropriately train their employees proximately caused Plaintiff’s injury; and (4) Defendants’

breach caused actual damages to Plaintiff. Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721 

(D.N.J. 2010); see also Weinberg v. Dinger, 106 N.J. 469, 484 (1987).

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In the present case, Plaintiff has not set forth evidence from which a reasonable jury 

could conclude that Defendants were negligent in their training of Brummett. Plaintiff’s only 

argument with respect to training is taken from Brummett’s deposition, where he testified that 

the only training he recalled receiving at Dusk was “mock hold training.” Brummett Dep. 24. 

This is insufficient to satisfy the second and third elements of a negligence claim. First, although 

based upon Brummett’s deposition, the extent of his training may have been rather limited, 

Plaintiff has not presented any evidence that Defendants’ training was improper, or that any 

specific shortcoming existed in Dusk’s training program. Plaintiff has not provided any further 

details about Dusk’s training policy, or pointed to aspects that he finds improper. Nor has he

produced any expert testimony about how security guards or bouncers should be trained. See

Brijall v. Harrah’s Atlantic City, 905 F. Supp. 2d 617, 621 (D.N.J. 2012) (granting summary 

judgment on a negligent training claim related to an altercation with a casino security guard, 

where the plaintiff provided no details about the defendant’s training policy, pointed to no 

aspects he found deficient, and set forth no expert testimony about proper training methods). 

Second, while the Court assumes for the purposes of this motion that Plaintiff’s injury 

was caused by an altercation with Defendants’ employees, Plaintiff has not presented any 

evidence that the Brummett’s training or lack thereof was a factor in bringing about that 

altercation. Plaintiff has thus failed to show that the alleged negligent training of Defendants’

employees was the proximate cause of Plaintiff’s injury. Proximate causation is a concept that is 

vague and subject to interpretation. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996). 

Courts have traditionally defined proximate cause as “any cause in which the natural and 

continuous sequence, unbroken by an efficient intervening cause, produces the result complained 

of and without which the result would not have occurred.” Id. at 418. In a negligent training 

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case, to establish causation a plaintiff must prove that his or her injury would not have happened 

“but for” a defendant’s negligence in training its employees, and that improper training was a 

substantial factor in bringing about a plaintiff’s injury. Stroby, 754 F. Supp. 2d at 721. Here, 

Plaintiff has produced no evidence tending to demonstrate that his injury would not have 

occurred but for negligent training by Dusk, or that the failure to properly train Brummett was a 

substantial factor that brought about his injuries. While he argues that Brummett should have 

received more training, he points to nothing specific that would have prevented Plaintiff’s injury 

from occurring. 

Without evidence in the record substantiating the claim that Defendant improperly 

trained or failed to train its employees and that such failure was a substantial factor causing 

Plaintiff’s injuries, summary judgment must be granted on the negligent training claim. 

D. Respondeat Superior Claims

In their motion brief, Defendants only set forth arguments on the negligence claims in 

Count V against the moving Defendants, and not as to the assault and negligence claims against 

Brummett in Counts VI and VII, pursuant to which Plaintiff seeks to hold Defendants liable 

under the doctrine of respondeat superior. Although Plaintiff briefed this issue in his brief

opposing summary judgment, and Defendants set forth arguments in response in their reply brief, 

the Court will decline to consider this issue.

3

 See U.S. v. Boggi, 74 F.3d 470, 478 (3d Cir. 1996) 

(appeals court would not consider arguments raised in a reply brief so that appellees are not 

3 The arguments set forth in Defendants’ reply brief as to respondeat superior center around the theory that 

Brummett would have been acting outside the scope of his employment if Plaintiff’s allegations about his actions are 

to be believed. No arguments about the scope of employment were set forth in the moving brief. With respect to 

Defendants Veloric and Red Stripe, Defendants argue that all claims against them should be dismissed because 

neither had an employer/employee relationship with Brummett. The reply brief sets forth arguments related to the 

corporate structure of the parties. It indicates that AC Nightlife is an LLC that has two members, one of which is 

Red Stripe. In turn, Veloric is the sole member of Red Stripe, which is also an LLC. None of these arguments were 

set forth in the moving brief. The only arguments in the moving brief discussed the Defendants’ lack of direct 

negligence, which is relevant only to the negligent hiring, training, and supervision claims. 

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prejudiced by the lack of opportunity to respond); Stern v. Halligan, 158 F.3d 729, 731 n.3 (3d 

Cir. 1998) (“A party cannot raise issues for the first time in a reply brief”); D’alessandro v. 

Bugler Tobacco Co., Civ. No. 05-5051, 2007 WL 130798 (D.N.J. Jan. 12, 2007) (stating that a 

moving party may not raise new issues in a reply brief because “[n]o sur-reply is permitted, so 

the opponent has no opportunity to address the new defense”) 

However, as Plaintiff indicates in his opposition brief that he concedes that Caesars did 

not employ Brummett, and he does not oppose a grant of summary judgment in favor of that 

defendant, the Court will grant summary judgment for Caesars as to all claims against it.4 See

Pl. Opp’n at 7-8. 

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for summary judgment will be GRANTED

IN PART. Summary judgment will be granted in full for Defendant Caesars Palace, and 

summary judgment will be granted for all Defendants on the negligence claims in Count V of the 

Amended Complaint. An accompanying Order shall issue today.

Dated: 3/13/2014 /s/ Robert B. Kugler 

 ROBERT B. KUGLER

United States District Judge

4 Evidently, Dusk is a tenant in Caesars Atlantic City Casino Hotel, which is the extent of Caesars’ involvement in 

this matter. SUMF ¶ 5.

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