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ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 1 of 16 Trans ID: LCV20232844348
HINSON SNIPES, LLP
Princeton Forrestal Village
116 Village Boulevard, Suite 307
Princeton, New Jersey 08540
P: (609) 452-7333 & F: (609) 452-7332
Tracey C. Hinson, Esq. Attorney ID# 034542002
Eric D. Dakhari, Esq. Attorney ID# 034762008
Attorney for Plaintiff Ijeoma Ukenta
IJEOMA UKENTA, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION – ESSEX COUNTY
Plaintiff, DOCKET NO.: ESX-L-4325-23
vs. CIVIL ACTION
VICTORIA SECRET STORES, LLC,
SHORT HILLS ASSOCIATES, LLC.,
D/B/A THE MALL AT SHORT HILLS,
THE TAUBMAN COMPANY, LLC, ALLIED
UNIVERSAL SECURITY SERVICES,
ABIGAL ELPHICK, JANE/JOHN DOES 1-
10 (names being fictitious), and
XYZ ENTITIES/CORPORATIONS 1-10
(names being fictitious),
Defendants.
PLAINTIFF IJEOMA UKENTA’S OPPOSITION TO VICTORIA SECRET’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Tracey C. Hinson, Esquire
On the Brief
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PRELIMINARY STATEMENT
On July 10, 2021, Ijeoma Ukenta was shopping at the Victoria
Secret Store located in the Short Hills Mall when she was assaulted
and battered by Abigail Elphick, after Ms. Ukenta requested Ms.
Elphick, who had leaned into her, move six feet away due to COVID
restrictions. On at least 3 occasions, Ms. Elphick chased Ms.
Ukenta around the Victoria Secret Store, lunged at her, attempted
to strike her, threatened her, and attempted to swipe her phone
from her hand. Ms. Elphick then falsely told the store employees
that Ms. Ukenta had threatened her and demanded they remove her
from the store.
Shocked and dismayed by Ms. Elphick’s behavior, Ms. Ukenta
began to video record on her phone to protect herself. Ms. Elphick
threw a tantrum and threatened to call the police to tell them Ms.
Ukenta was threatening her. Ms. Elphick then called the police on
Ms. Ukenta. She screamed hysterically on the 911 call that Ms.
Ukenta was threatening and videotaping her, and that she was
afraid. This increased the fear and anxiety Ms. Ukenta felt.
The series of videotapes recorded by Ms. Ukenta revealed she
did not threaten Ms. Elphick at any time. Ms. Elphick is seen
charging toward Ms. Ukenta, lunging at her, attempting to knock
her phone from her hand, and chasing her around the store while
Victoria Secret employees ignored her and continued attending to
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customers, allowing Ms. Elphick to continue to harass, threaten,
intimidate, and put Ms. Ukenta in fear for her safety.
The Complaint alleges that Victoria Secret Stores, LLC was
negligent as it failed to implement policies, and procedures to
protect its business invitees, including Ms. Ukenta, from harm or
the threat of harm on its premises, breached its duty to provide
adequate security, and breached its duty to provide adequate
training to its employees to intervene, aid, or protect its
customers from assaults and battery, despite prior knowledge that
such harm or threat of harm was likely to occur.
Despite the explicit factual allegations of the Complaint,
supporting various direct negligence claims against it, Victoria
Secret urges the Court to deny Ms. Ukenta access to the Court based
solely on its own self-serving interpretation of the facts as
stated by Ms. Ukenta, and its unknown representative(s) review of
the various videos of the incident.
This Court has a straightforward issue in applying the test
for deciding a motion to dismiss for failure to state a claim under
Rule 4:6-2(e), which is whether the Complaint merely suggests a
cause of action based on the facts alleged on the face of the
Complaint. The Court does not consider whether Ms. Ukenta will be
able to prove the allegations in the Complaint at this early stage,
but rather only examines the adequacy of the facts within the
pleading.
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From Ms. Ukenta’s well-pleaded Complaint, this Court will
explicitly comprehend and, if necessary, accord reasonable
inference that on July 10, 2021, Victoria Secret Stores, LLC,
failed to implement policies, and procedures to protect its
business invitees, including Ms. Ukenta, from harm on its premises,
breached its duty to provide adequate security, breached its duty
to provide de-escalation and intervention training to its
employees, and was otherwise negligent.
RESPONSE TO VICTORIA SECRET’S STATEMENT OF FACTS 1
Denied to the extent Victoria Secret Stores, LLC (“Victoria
Secret”), claims the allegation of the Complaint fails to allege
there was physical contact or that no crime was committed. The
unwanted physical contact is suggested by the Complaint’s
allegations that Abigail Elphick (“Ms. Elphick”), lunged at
Plaintiff Ijeoma Ukenta (“Ms. Ukenta”), chased her around the
store, tried to hit her, and tried to grab her phone out of her
hand.
Further, the Complaint alleges Ms. Elphick committed the
crime of assault by repeatedly attempting to strike Ms. Ukenta,
lunged at her, threatened her, menaced her, attempted to grab her
phone from her hands, and chased her around the store, placing her
1 Victoria Secret’s Statement of Facts are not numbered which
makes it difficult to respond.
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in fear of imminent injury. N.J.S.A. § 2C:12-1a(1). She committed
the crime of battery, defined as a harmful and offensive touching,
when she unlawfully tried to grab her phone from her hands.
N.J.S.A. § 2C:12-1(b).
COUNTERSTATEMENT OF FACTS
1. On July 10, 2021, Ms. Ukenta was shopping for panties at
the Victoria Secret Store at the Mall at Short Hills.
2. As Ms. Ukenta browsed through the items for sale, she
asked Ms. Elphick, who had leaned too close to her, to move six
feet away due to COVID restrictions. That exchange lasted
approximately five (5) seconds. (VS Exhibit A, Cmplt. ¶’s 11-12,
14).
3. Following that brief encounter, Ms. Elphick immediately
went up to employees at the cash registers, demanded Ms. Ukenta be
removed from the store, and falsely claimed Ms. Ukenta had
threatened her.
4. Flabbergasted at the false accusation and Ms. Elphick’s
outrageous behavior, Ms. Ukenta started to record with her cell
phone to protect herself as she exclaimed in disbelief that she
could not believe what was happening. Id. at ¶’s 15-16.
5. The series of videotapes recorded by Ms. Ukenta show Ms.
Elphick, on at least three (3) separate occasions, lunging at Ms.
Ukenta, attempting to strike her, trying to grab her phone from
her hand, and chasing her around the store, while Victoria Secret
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employees stood around and ignored what was happening. 2 Id. at ¶’s
13, 16.
6. The shock, panic, and confusion Ms. Ukenta felt can be
heard in her voice as she exclaimed, “Oh God, Oh my God. Oh my
God. Do you see this? Oh my God. I never thought nothing like this
would happen to me. She tried to run and hit me,” her nervous
laughter a defense mechanism as she tried to process what was
happening to her. Id. at ¶17.
7. As she menaced, assaulted, battered, and chased Ms.
Ukenta around the store, Ms. Elphick threatened to call the police
to tell them Ms. Ukenta was threatening her. Recordings of the 911
calls placed by Ms. Elphick revealed she falsely told the 911
operator that Ms. Ukenta was threatening and recording her.
8. After hearing Ms. Elphick falsely tell the 911 operator
that she had threatened her, and being keenly aware that if the
police were to respond, she may not be believed, may be deemed the
aggressor, and could face even more danger, Ms. Ukenta became even
more anxious and fearful for her safety, and continued to record
the events so she could have proof. Id. at ¶’s 19-20.
9. The videos show Ms. Elphick continuing to scream and
yell at Ms. Ukenta to get away from her, to stop recording her,
2 The videos are referenced but not attached to the Complaint.
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and to stop threatening her, even as she charged, lunged at, and
chased Ms. Ukenta around the store.
10. As Ms. Ukenta desperately tried to get away from Ms.
Elphick, she begged Victoria Secret employees to get Ms. Elphick
away from her and asked them to call security on multiple
occasions.
11. As the incident continued to escalate and Ms. Elphick’s
behavior became more threatening and erratic, Victoria Secret
employees failed to assist Ms. Ukenta or take any measures to
intervene and deescalate the situation.
12. They made no attempt to protect Ms. Ukenta by removing
Ms. Elphick, who was clearly the aggressor, from the store. Nor
did they ask her to leave. Id. at ¶’s 18, 20.
13. Instead, Victoria Secret employees ignored what was
happening and continued with their usual business of servicing
customers at the register and throughout the store. This allowed
Ms. Elphick to continue her assault on Ms. Ukenta for an extended
period, escalating the fears and emotional distress, she felt. Id.
at 21.
14. When mall security finally responded, Victoria Secret
employees and mall security downplayed the seriousness of what had
occurred, were dismissive and indifferent to Ms. Ukenta, and
downplayed her safety concerns.
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15. And although she was the victim, Ms. Ukenta was
humiliated further by mall security and the police, who dismissed
her concerns, showed preferential treatment to Ms. Elphick, and
asked Ms. Ukenta, the victim, to leave the mall. Id. at ¶’s 23-
24.
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LEGAL ARGUMENT
MOTION TO DISMISS STANDARD UNDER RULE 4:6-2(e)
The dismissal of a complaint with prejudice is one of, if not
the most severe ruling a litigant can receive. A motion to dismiss
brought under R. 4:6-2(e) is often at the very beginning of a case
when any pleading deficiencies may be cured by amendment or through
further discovery. For these reasons, the longstanding principles
of Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J.
739 (1989), dictate that motions to dismiss with prejudice pursuant
to R. 4:6-2(e) must be considered "with great caution" and "should
be granted only in the rarest of instances." Id. at 772. Thus,
both the principles of fairness as well as case law suggest that
a court should not dismiss a complaint with prejudice when an
amended complaint or further discovery can cure any pleading
deficiencies.
The Court in Printing Mart took great care to emphasize that
"the test for determining the adequacy of a pleading" is "whether
a cause of action is "suggested" by the facts." Id. at 746.
(Citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189,
192 (1988). In its review of a complaint pursuant to a R. 4:6-2(e)
motion, the court should make a thorough and liberal search of the
complaint to determine whether a cause of action "may be gleaned
even from an obscure statement of claim, opportunity being given
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to amend if necessary." Ibid. (citing DiCristofaro v. Laurel Grove
Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957) (Emphasis
added).
The role of the court in deciding a R. 4:6-2(e) motion, while
taking all reasonable inferences in favor of the plaintiff, is
strictly to ascertain the "legal sufficiency" of the facts
contained within the complaint. Printing Mart, supra, 116 N.J. at
746 (citing Rieder v. Department of Transp., 221 N.J. Super. 547,
552 (App. Div. 1987). At such an early stage in the litigation,
the Court does not consider whether the plaintiff will be able to
prove the allegations in the complaint, but rather only examines
the adequacy of the facts within the pleading. Ibid. A complaint
may only be dismissed for failure to state a claim if, after an
in-depth and liberal search of its allegations, a cause of action
cannot be gleaned from even an obscure statement in the complaint,
particularly if additional discovery is permitted. Ibid.; R. 4:6-
2 (e).
ALLEGATIONS IN COMPLAINT:
In determining whether Ms. Ukenta’s Complaint sufficiently
pleads facts suggesting a cause of action against Victoria Secret,
the Court must accept the following factual allegations as true:
◊ Ms. Ukenta was subjected to an unwarranted and
unprovoked assault and battery by Ms. Elphick while
shopping at Victoria Secret.
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◊ Ms. Elphick chased Ms. Ukenta around the Victoria Secret
Store, lunged at her, attempted to strike her, and
attempted to knock her phone from her hand.
◊ Ms. Ukenta was placed in fear of imminent injury and
feared for her physical safety.
◊ Victoria Secret employees watched as Ms. Elphick
assaulted Ms. Ukenta but did not attempt to stop or
deescalate the incident.
◊ Victoria Secret employees ignored what was happening and
continued to serve its customers, leaving Ms. Ukenta to
the mercy of Ms. Elphick who continued to menace,
assault, harass, threaten, and chase Ms. Ukenta around
the store.
◊ Victoria Secret employees took no measures to protect
Ms. Ukenta, failed to intervene to assist her, and
ignored her safety concerns by failing to remove Ms.
Elphick, who was clearly the aggressor, from the store
before the incident escalated.
◊ Victoria Secret employees exhibited a lack of concern
for Ms. Ukenta’s well-being and were dismissive of her
safety concerns.
◊ Victoria Secret failed to implement policies and
procedures to protect and safeguard its business
invitees, including Ms. Ukenta, from harm.
◊ Victoria Secret had a duty to but negligently failed to
take any steps whatsoever to protect and safeguard
invitees to its store.
◊ Victoria Secret negligently breached its duty to protect
and safeguard Ms. Ukenta against any dangerous or
harmful acts, including assault and battery, while she
was on its property.
◊ Victoria Secret failed to provide adequate training to
its employees on how to deescalate, intervene, aid, or
protect its customers from harm occurring on its
property, despite prior knowledge that such physical
harm was likely to occur.
◊ Victoria Secret knew its failure to provide adequate
security, training, and supervision to its employees,
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and its failure to implement policies and procedures to
protect its business invitees from harm on their
premises, created a foreseeable risk of harm to business
invitees like Ms. Ukenta.
◊ Victoria Secret’s failure to provide a safe and secure
environment for invitees allowed the assault and battery
against Ms. Ukenta to take place on its premises.
Contrary to Victoria Secret’s argument, the Complaint
presents a detailed factual recitation of Ms. Ukenta’s allegations
that more than satisfies the pleading requirements to set forth a
prima facie case of negligence against Victoria Secret. Ms. Ukenta
is not “obligated to prove the case at this stage but only to make
allegations, which, if proven, would constitute a valid cause of
action.” Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App.
Div. 2001). Giving Ms. Ukenta all favorable inferences, the
Complaint pleads sufficient facts such that Victoria Secret’s
Motion to Dismiss with Prejudice should be denied.
POINT I
THE COMPLAINT PLEADS SUFFICIENT FACTS TO DEMONSTRATE
THAT VICTORIA SECRET BREACHED ITS NON-DELEGABLE DUTY TO
PROVIDE A SAFE ENVIRONMENT AND TO EXERCISE REASONABLE
CARE FOR THE SAFETY OF ITS BUSINESS INVITEES, INCLUDING
MS. UKENTA.
Victoria Secret argues it had no “duty to protect Ms. Ukenta,
and she cannot bring forth a claim alleging that Victoria Secret
failed to protect her from physical harm and/or the criminal act
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of a third party as neither occurred.” (Def. Br. p. 5). This
argument is without merit.
Business owners owe a duty "to provide a safe environment" to
the people they invite onto their premises. Nisivoccia v. Glass
Gardens, Inc., 175 N.J. 559, 563 (2003). Our Supreme Court imposed
such a duty on business owners because "they are in the best
position" to prevent and control the risk of harm to their patrons
and to others. Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510,
517 (1997). Thus, the proprietor of premises to which the public
is invited for business purposes owes a duty of reasonable care to
those who enter the premises upon that invitation to provide a
reasonably safe place to do that which is within the scope of the
invitation.” Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982)
Jerista v. Murray, 185 N.J. 175, 191 (2005). That duty to exercise
reasonable care for the safety of business invitees is non-
delegable. Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 555
(1962); De Los Santos v. Saddlehill, 211 N.J. Super. 253, 261 (App.
Div. 1986), cert. denied, 107 N.J. 101 (1987); Rosenberg v. Otis
Elevator Company, 366 N.J. Super. 292, 303 (App. Div. 2004).
The duty of a business owner extends to safeguarding its
customers from all harm, not just physical harm on its premises.
Nonetheless, it can be inferred by the allegation in the Complaint
that physical touching occurred when Ms. Elphick attempted to grab
Ms. Ukenta’s phone from her hand. Furthermore, although Victoria
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Secret attempts to categorize the allegations in Ms. Ukenta’s
Complaint as “civil” assault, the factual allegation of the
Complaint refers to “assault,” which can be either civil or
criminal. N.J.S.A. § 2C:12-1a(1); N.J.S.A. § 2C:12-1(b). 3
A person is subject to liability for the common law tort of
assault if: "(a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and (b) the other is
thereby put in such imminent apprehension." Wigginton v.
Servidio, 324 N.J. Super. 114, 129 (App. Div. 1999)
(quoting Restatement (Second) of Torts § 21 (1965)). The tort
of battery rests upon a nonconsensual touching. Perna v.
Pirozzi, 92 N.J. 446, 461 (1983).
Tested against this standard, there are multiple reasons for
the Court to allow Ms. Ukenta’s claims for assault and battery to
proceed. Ms. Ukenta’s Complaint clearly alleges facts which
demonstrates she was placed in fear of imminent harm and was the
victim of an assault. Further, the allegation of the Complaint
sufficiently alleges that Ms. Elphick committed battery, defined
as a nonconsensual touching when she attempted to grab Ms. Ukenta’s
3
To the extent it matters to the Court, Ms. Elphick was charged
with a crime in Millburn Municipal Court, State v. Elphick,
Complaint No: S-2021-178-0712.
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phone from her hand. A jury could very likely find that Victoria
Secret was negligent and that its failure to implement policies
and procedures to protect its business invitees, and its failure
to train and supervise its employees on intervention and de-
escalation policies, constituted a failure to take reasonable
safeguards and therefore, liability could be found.
B. If After Giving All Favorable Inferences, the
Court Determines the Complaint Does Not
Sufficiently Suggest a Cause of Action, the Court
Should Permit Ms. Ukenta to Amend the Complaint.
Our Supreme Court signaled to trial courts “to approach with
great caution applications for dismissal under Rule 4:6-2(e) for
failure of a complaint to state a claim on which relief may be
granted.” Printing Mart, supra, 116 N.J. at 771-72. It that case,
the Court directed trial courts that “[i]f a complaint must be
dismissed after it has been accorded the kind of meticulous and
indulgent examination . . . , then, barring any other impediment
such as a statute of limitations, the dismissal should be without
prejudice to a plaintiff’s filing of an amended complaint.” Ibid.
(emphasis provided).
Under that general rule, should this Court determine that the
Complaint’s factual allegations do not, at a minimum, suggest a
cause of action, Ms. Ukenta respectfully requests leave to amend
her Complaint accordingly.
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CONCLUSION
Beyond Ms. Ukenta’s well-pleaded factual allegations
supporting each of her direct negligence claims, at this early
stage of litigation, the record is insufficient for the Court to
address the issue of whether, as a matter of law, Victoria Secret
should be exposed to liability.
Accordingly, the Court should deny the current motion.
HINSON SNIPES, LLP
By: /s/Tracey C. Hinson
Tracey C. Hinson, Esquire
Dated: September 14, 2023
16
Preview
ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 1 of 16 Trans ID: LCV20232844348 HINSON SNIPES, LLP Princeton Forrestal Village 116 Village Boulevard, Suite 307 Princeton, New Jersey 08540 P: (609) 452-7333 & F: (609) 452-7332 Tracey C. Hinson, Esq. Attorney ID# 034542002 Eric D. Dakhari, Esq. Attorney ID# 034762008 Attorney for Plaintiff Ijeoma Ukenta IJEOMA UKENTA, SUPERIOR COURT OF NEW JERSEY LAW DIVISION – ESSEX COUNTY Plaintiff, DOCKET NO.: ESX-L-4325-23 vs. CIVIL ACTION VICTORIA SECRET STORES, LLC, SHORT HILLS ASSOCIATES, LLC., D/B/A THE MALL AT SHORT HILLS, THE TAUBMAN COMPANY, LLC, ALLIED UNIVERSAL SECURITY SERVICES, ABIGAL ELPHICK, JANE/JOHN DOES 1- 10 (names being fictitious), and XYZ ENTITIES/CORPORATIONS 1-10 (names being fictitious), Defendants. PLAINTIFF IJEOMA UKENTA’S OPPOSITION TO VICTORIA SECRET’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Tracey C. Hinson, Esquire On the Brief ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 2 of 16 Trans ID: LCV20232844348 PRELIMINARY STATEMENT On July 10, 2021, Ijeoma Ukenta was shopping at the Victoria Secret Store located in the Short Hills Mall when she was assaulted and battered by Abigail Elphick, after Ms. Ukenta requested Ms. Elphick, who had leaned into her, move six feet away due to COVID restrictions. On at least 3 occasions, Ms. Elphick chased Ms. Ukenta around the Victoria Secret Store, lunged at her, attempted to strike her, threatened her, and attempted to swipe her phone from her hand. Ms. Elphick then falsely told the store employees that Ms. Ukenta had threatened her and demanded they remove her from the store. Shocked and dismayed by Ms. Elphick’s behavior, Ms. Ukenta began to video record on her phone to protect herself. Ms. Elphick threw a tantrum and threatened to call the police to tell them Ms. Ukenta was threatening her. Ms. Elphick then called the police on Ms. Ukenta. She screamed hysterically on the 911 call that Ms. Ukenta was threatening and videotaping her, and that she was afraid. This increased the fear and anxiety Ms. Ukenta felt. The series of videotapes recorded by Ms. Ukenta revealed she did not threaten Ms. Elphick at any time. Ms. Elphick is seen charging toward Ms. Ukenta, lunging at her, attempting to knock her phone from her hand, and chasing her around the store while Victoria Secret employees ignored her and continued attending to 2 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 3 of 16 Trans ID: LCV20232844348 customers, allowing Ms. Elphick to continue to harass, threaten, intimidate, and put Ms. Ukenta in fear for her safety. The Complaint alleges that Victoria Secret Stores, LLC was negligent as it failed to implement policies, and procedures to protect its business invitees, including Ms. Ukenta, from harm or the threat of harm on its premises, breached its duty to provide adequate security, and breached its duty to provide adequate training to its employees to intervene, aid, or protect its customers from assaults and battery, despite prior knowledge that such harm or threat of harm was likely to occur. Despite the explicit factual allegations of the Complaint, supporting various direct negligence claims against it, Victoria Secret urges the Court to deny Ms. Ukenta access to the Court based solely on its own self-serving interpretation of the facts as stated by Ms. Ukenta, and its unknown representative(s) review of the various videos of the incident. This Court has a straightforward issue in applying the test for deciding a motion to dismiss for failure to state a claim under Rule 4:6-2(e), which is whether the Complaint merely suggests a cause of action based on the facts alleged on the face of the Complaint. The Court does not consider whether Ms. Ukenta will be able to prove the allegations in the Complaint at this early stage, but rather only examines the adequacy of the facts within the pleading. 3 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 4 of 16 Trans ID: LCV20232844348 From Ms. Ukenta’s well-pleaded Complaint, this Court will explicitly comprehend and, if necessary, accord reasonable inference that on July 10, 2021, Victoria Secret Stores, LLC, failed to implement policies, and procedures to protect its business invitees, including Ms. Ukenta, from harm on its premises, breached its duty to provide adequate security, breached its duty to provide de-escalation and intervention training to its employees, and was otherwise negligent. RESPONSE TO VICTORIA SECRET’S STATEMENT OF FACTS 1 Denied to the extent Victoria Secret Stores, LLC (“Victoria Secret”), claims the allegation of the Complaint fails to allege there was physical contact or that no crime was committed. The unwanted physical contact is suggested by the Complaint’s allegations that Abigail Elphick (“Ms. Elphick”), lunged at Plaintiff Ijeoma Ukenta (“Ms. Ukenta”), chased her around the store, tried to hit her, and tried to grab her phone out of her hand. Further, the Complaint alleges Ms. Elphick committed the crime of assault by repeatedly attempting to strike Ms. Ukenta, lunged at her, threatened her, menaced her, attempted to grab her phone from her hands, and chased her around the store, placing her 1 Victoria Secret’s Statement of Facts are not numbered which makes it difficult to respond. 4 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 5 of 16 Trans ID: LCV20232844348 in fear of imminent injury. N.J.S.A. § 2C:12-1a(1). She committed the crime of battery, defined as a harmful and offensive touching, when she unlawfully tried to grab her phone from her hands. N.J.S.A. § 2C:12-1(b). COUNTERSTATEMENT OF FACTS 1. On July 10, 2021, Ms. Ukenta was shopping for panties at the Victoria Secret Store at the Mall at Short Hills. 2. As Ms. Ukenta browsed through the items for sale, she asked Ms. Elphick, who had leaned too close to her, to move six feet away due to COVID restrictions. That exchange lasted approximately five (5) seconds. (VS Exhibit A, Cmplt. ¶’s 11-12, 14). 3. Following that brief encounter, Ms. Elphick immediately went up to employees at the cash registers, demanded Ms. Ukenta be removed from the store, and falsely claimed Ms. Ukenta had threatened her. 4. Flabbergasted at the false accusation and Ms. Elphick’s outrageous behavior, Ms. Ukenta started to record with her cell phone to protect herself as she exclaimed in disbelief that she could not believe what was happening. Id. at ¶’s 15-16. 5. The series of videotapes recorded by Ms. Ukenta show Ms. Elphick, on at least three (3) separate occasions, lunging at Ms. Ukenta, attempting to strike her, trying to grab her phone from her hand, and chasing her around the store, while Victoria Secret 5 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 6 of 16 Trans ID: LCV20232844348 employees stood around and ignored what was happening. 2 Id. at ¶’s 13, 16. 6. The shock, panic, and confusion Ms. Ukenta felt can be heard in her voice as she exclaimed, “Oh God, Oh my God. Oh my God. Do you see this? Oh my God. I never thought nothing like this would happen to me. She tried to run and hit me,” her nervous laughter a defense mechanism as she tried to process what was happening to her. Id. at ¶17. 7. As she menaced, assaulted, battered, and chased Ms. Ukenta around the store, Ms. Elphick threatened to call the police to tell them Ms. Ukenta was threatening her. Recordings of the 911 calls placed by Ms. Elphick revealed she falsely told the 911 operator that Ms. Ukenta was threatening and recording her. 8. After hearing Ms. Elphick falsely tell the 911 operator that she had threatened her, and being keenly aware that if the police were to respond, she may not be believed, may be deemed the aggressor, and could face even more danger, Ms. Ukenta became even more anxious and fearful for her safety, and continued to record the events so she could have proof. Id. at ¶’s 19-20. 9. The videos show Ms. Elphick continuing to scream and yell at Ms. Ukenta to get away from her, to stop recording her, 2 The videos are referenced but not attached to the Complaint. 6 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 7 of 16 Trans ID: LCV20232844348 and to stop threatening her, even as she charged, lunged at, and chased Ms. Ukenta around the store. 10. As Ms. Ukenta desperately tried to get away from Ms. Elphick, she begged Victoria Secret employees to get Ms. Elphick away from her and asked them to call security on multiple occasions. 11. As the incident continued to escalate and Ms. Elphick’s behavior became more threatening and erratic, Victoria Secret employees failed to assist Ms. Ukenta or take any measures to intervene and deescalate the situation. 12. They made no attempt to protect Ms. Ukenta by removing Ms. Elphick, who was clearly the aggressor, from the store. Nor did they ask her to leave. Id. at ¶’s 18, 20. 13. Instead, Victoria Secret employees ignored what was happening and continued with their usual business of servicing customers at the register and throughout the store. This allowed Ms. Elphick to continue her assault on Ms. Ukenta for an extended period, escalating the fears and emotional distress, she felt. Id. at 21. 14. When mall security finally responded, Victoria Secret employees and mall security downplayed the seriousness of what had occurred, were dismissive and indifferent to Ms. Ukenta, and downplayed her safety concerns. 7 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 8 of 16 Trans ID: LCV20232844348 15. And although she was the victim, Ms. Ukenta was humiliated further by mall security and the police, who dismissed her concerns, showed preferential treatment to Ms. Elphick, and asked Ms. Ukenta, the victim, to leave the mall. Id. at ¶’s 23- 24. 8 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 9 of 16 Trans ID: LCV20232844348 LEGAL ARGUMENT MOTION TO DISMISS STANDARD UNDER RULE 4:6-2(e) The dismissal of a complaint with prejudice is one of, if not the most severe ruling a litigant can receive. A motion to dismiss brought under R. 4:6-2(e) is often at the very beginning of a case when any pleading deficiencies may be cured by amendment or through further discovery. For these reasons, the longstanding principles of Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739 (1989), dictate that motions to dismiss with prejudice pursuant to R. 4:6-2(e) must be considered "with great caution" and "should be granted only in the rarest of instances." Id. at 772. Thus, both the principles of fairness as well as case law suggest that a court should not dismiss a complaint with prejudice when an amended complaint or further discovery can cure any pleading deficiencies. The Court in Printing Mart took great care to emphasize that "the test for determining the adequacy of a pleading" is "whether a cause of action is "suggested" by the facts." Id. at 746. (Citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). In its review of a complaint pursuant to a R. 4:6-2(e) motion, the court should make a thorough and liberal search of the complaint to determine whether a cause of action "may be gleaned even from an obscure statement of claim, opportunity being given 9 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 10 of 16 Trans ID: LCV20232844348 to amend if necessary." Ibid. (citing DiCristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957) (Emphasis added). The role of the court in deciding a R. 4:6-2(e) motion, while taking all reasonable inferences in favor of the plaintiff, is strictly to ascertain the "legal sufficiency" of the facts contained within the complaint. Printing Mart, supra, 116 N.J. at 746 (citing Rieder v. Department of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). At such an early stage in the litigation, the Court does not consider whether the plaintiff will be able to prove the allegations in the complaint, but rather only examines the adequacy of the facts within the pleading. Ibid. A complaint may only be dismissed for failure to state a claim if, after an in-depth and liberal search of its allegations, a cause of action cannot be gleaned from even an obscure statement in the complaint, particularly if additional discovery is permitted. Ibid.; R. 4:6- 2 (e). ALLEGATIONS IN COMPLAINT: In determining whether Ms. Ukenta’s Complaint sufficiently pleads facts suggesting a cause of action against Victoria Secret, the Court must accept the following factual allegations as true: ◊ Ms. Ukenta was subjected to an unwarranted and unprovoked assault and battery by Ms. Elphick while shopping at Victoria Secret. 10 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 11 of 16 Trans ID: LCV20232844348 ◊ Ms. Elphick chased Ms. Ukenta around the Victoria Secret Store, lunged at her, attempted to strike her, and attempted to knock her phone from her hand. ◊ Ms. Ukenta was placed in fear of imminent injury and feared for her physical safety. ◊ Victoria Secret employees watched as Ms. Elphick assaulted Ms. Ukenta but did not attempt to stop or deescalate the incident. ◊ Victoria Secret employees ignored what was happening and continued to serve its customers, leaving Ms. Ukenta to the mercy of Ms. Elphick who continued to menace, assault, harass, threaten, and chase Ms. Ukenta around the store. ◊ Victoria Secret employees took no measures to protect Ms. Ukenta, failed to intervene to assist her, and ignored her safety concerns by failing to remove Ms. Elphick, who was clearly the aggressor, from the store before the incident escalated. ◊ Victoria Secret employees exhibited a lack of concern for Ms. Ukenta’s well-being and were dismissive of her safety concerns. ◊ Victoria Secret failed to implement policies and procedures to protect and safeguard its business invitees, including Ms. Ukenta, from harm. ◊ Victoria Secret had a duty to but negligently failed to take any steps whatsoever to protect and safeguard invitees to its store. ◊ Victoria Secret negligently breached its duty to protect and safeguard Ms. Ukenta against any dangerous or harmful acts, including assault and battery, while she was on its property. ◊ Victoria Secret failed to provide adequate training to its employees on how to deescalate, intervene, aid, or protect its customers from harm occurring on its property, despite prior knowledge that such physical harm was likely to occur. ◊ Victoria Secret knew its failure to provide adequate security, training, and supervision to its employees, 11 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 12 of 16 Trans ID: LCV20232844348 and its failure to implement policies and procedures to protect its business invitees from harm on their premises, created a foreseeable risk of harm to business invitees like Ms. Ukenta. ◊ Victoria Secret’s failure to provide a safe and secure environment for invitees allowed the assault and battery against Ms. Ukenta to take place on its premises. Contrary to Victoria Secret’s argument, the Complaint presents a detailed factual recitation of Ms. Ukenta’s allegations that more than satisfies the pleading requirements to set forth a prima facie case of negligence against Victoria Secret. Ms. Ukenta is not “obligated to prove the case at this stage but only to make allegations, which, if proven, would constitute a valid cause of action.” Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001). Giving Ms. Ukenta all favorable inferences, the Complaint pleads sufficient facts such that Victoria Secret’s Motion to Dismiss with Prejudice should be denied. POINT I THE COMPLAINT PLEADS SUFFICIENT FACTS TO DEMONSTRATE THAT VICTORIA SECRET BREACHED ITS NON-DELEGABLE DUTY TO PROVIDE A SAFE ENVIRONMENT AND TO EXERCISE REASONABLE CARE FOR THE SAFETY OF ITS BUSINESS INVITEES, INCLUDING MS. UKENTA. Victoria Secret argues it had no “duty to protect Ms. Ukenta, and she cannot bring forth a claim alleging that Victoria Secret failed to protect her from physical harm and/or the criminal act 12 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 13 of 16 Trans ID: LCV20232844348 of a third party as neither occurred.” (Def. Br. p. 5). This argument is without merit. Business owners owe a duty "to provide a safe environment" to the people they invite onto their premises. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). Our Supreme Court imposed such a duty on business owners because "they are in the best position" to prevent and control the risk of harm to their patrons and to others. Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 517 (1997). Thus, the proprietor of premises to which the public is invited for business purposes owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation.” Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982) Jerista v. Murray, 185 N.J. 175, 191 (2005). That duty to exercise reasonable care for the safety of business invitees is non- delegable. Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 555 (1962); De Los Santos v. Saddlehill, 211 N.J. Super. 253, 261 (App. Div. 1986), cert. denied, 107 N.J. 101 (1987); Rosenberg v. Otis Elevator Company, 366 N.J. Super. 292, 303 (App. Div. 2004). The duty of a business owner extends to safeguarding its customers from all harm, not just physical harm on its premises. Nonetheless, it can be inferred by the allegation in the Complaint that physical touching occurred when Ms. Elphick attempted to grab Ms. Ukenta’s phone from her hand. Furthermore, although Victoria 13 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 14 of 16 Trans ID: LCV20232844348 Secret attempts to categorize the allegations in Ms. Ukenta’s Complaint as “civil” assault, the factual allegation of the Complaint refers to “assault,” which can be either civil or criminal. N.J.S.A. § 2C:12-1a(1); N.J.S.A. § 2C:12-1(b). 3 A person is subject to liability for the common law tort of assault if: "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension." Wigginton v. Servidio, 324 N.J. Super. 114, 129 (App. Div. 1999) (quoting Restatement (Second) of Torts § 21 (1965)). The tort of battery rests upon a nonconsensual touching. Perna v. Pirozzi, 92 N.J. 446, 461 (1983). Tested against this standard, there are multiple reasons for the Court to allow Ms. Ukenta’s claims for assault and battery to proceed. Ms. Ukenta’s Complaint clearly alleges facts which demonstrates she was placed in fear of imminent harm and was the victim of an assault. Further, the allegation of the Complaint sufficiently alleges that Ms. Elphick committed battery, defined as a nonconsensual touching when she attempted to grab Ms. Ukenta’s 3 To the extent it matters to the Court, Ms. Elphick was charged with a crime in Millburn Municipal Court, State v. Elphick, Complaint No: S-2021-178-0712. 14 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 15 of 16 Trans ID: LCV20232844348 phone from her hand. A jury could very likely find that Victoria Secret was negligent and that its failure to implement policies and procedures to protect its business invitees, and its failure to train and supervise its employees on intervention and de- escalation policies, constituted a failure to take reasonable safeguards and therefore, liability could be found. B. If After Giving All Favorable Inferences, the Court Determines the Complaint Does Not Sufficiently Suggest a Cause of Action, the Court Should Permit Ms. Ukenta to Amend the Complaint. Our Supreme Court signaled to trial courts “to approach with great caution applications for dismissal under Rule 4:6-2(e) for failure of a complaint to state a claim on which relief may be granted.” Printing Mart, supra, 116 N.J. at 771-72. It that case, the Court directed trial courts that “[i]f a complaint must be dismissed after it has been accorded the kind of meticulous and indulgent examination . . . , then, barring any other impediment such as a statute of limitations, the dismissal should be without prejudice to a plaintiff’s filing of an amended complaint.” Ibid. (emphasis provided). Under that general rule, should this Court determine that the Complaint’s factual allegations do not, at a minimum, suggest a cause of action, Ms. Ukenta respectfully requests leave to amend her Complaint accordingly. 15 ESX-L-004325-23 09/14/2023 5:08:36 PM Pg 16 of 16 Trans ID: LCV20232844348 CONCLUSION Beyond Ms. Ukenta’s well-pleaded factual allegations supporting each of her direct negligence claims, at this early stage of litigation, the record is insufficient for the Court to address the issue of whether, as a matter of law, Victoria Secret should be exposed to liability. Accordingly, the Court should deny the current motion. HINSON SNIPES, LLP By: /s/Tracey C. Hinson Tracey C. Hinson, Esquire Dated: September 14, 2023 16