The opinion of the court was delivered by: Ronald L. Ellis, Magistrate Judge
Plaintiff, Maria Golodner ("Golodner"), filed this lawsuit against Quessant, Incorporated d/b/a Cafe Charbon and a/k/a Le Picieric Cafe Charbon ("Cafe Charbon"), Jeandidier Faure, Gilles Ray, and Olivee Herbert (collectively, "defendants"), on September 9, 2005. She raises claims of intentional infliction of emotional distress and false imprisonment, under the theory of respondeat superior; as well as a claim of negligence in hiring, retention, supervision and training. Her allegations arise out of an incident on November 21, 2004, in which she was sexually assaulted by an employee of Cafe Charbon. On July 12, 2006, the parties consented to jurisdiction by the undersigned pursuant to 28 U.S.C. § 636(c).
Pending before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants argue that the case should be dismissed on the grounds that: (1) defendants are not vicariously liable for the intentional torts of their employees, specifically false imprisonment and intentional infliction of emotional distress; (2) plaintiff has failed to allege a prima facie case for false imprisonment; (3) plaintiff has failed to allege a prima facie case for intentional infliction of emotional distress; (4) plaintiff has failed to allege a prima facie case of negligence in hiring, firing, retention, and supervision, (5) the lawsuit against Ray is frivolous; and (6) punitive damages are not available to plaintiff. On the facts as set forth in this record and for the following reasons, defendants' motion is GRANTED.
On November 21, 2004, at approximately 11:30 p.m., Golodner finished her bartending shift at John Luke, a Manhattan bar and restaurant. Deposition of Maria Golodner, June 14, 2006 ("Golodner Dep."), at 66. She had a glass of wine at John Luke, and then went to meet her boyfriend, Tomas Besnard ("Besnard"), at about midnight at the restaurant where he worked.
Id. at 37, 57. At approximately 3:00 a.m. on November 22, Golodner, Besnard, and two of his friends arrived at Cafe Charbon, located on the corner of Orchard and Stanton Streets in Manhattan, to celebrate the birthday of Amelie Scribot ("Scribot"), an acquaintance of Besnard and the manager of Cafe Charbon. Id. at 34, 35, 42.
Scribot had been employed as a waitress by Cafe Charbon for three months before being promoted to manager. Deposition of Amelie Scribot, June 15, 2006 ("Scribot Dep."), at 7. As manager, she was responsible for closing the restaurant, answering the telephone, ordering beverages, and supervising bar and restaurant employees. Id. at 12-13. She held the position of manager for about six months, but was demoted by defendant Faure after the attack on Golodner. Id. at 11. On the night of the incident, Scribot was responsible for closing Cafe Charbon and had possession of the keys to the cafe. Id. at 14.
Cafe Charbon's facade includes several doors, but the main entrance is located on Orchard Street. Golodner Dep. at 40-41. This door is located under the "Tabac" sign, and is the only door intended for customer ingress and egress. Faure Dep. at 68. When Golodner, Besnard and the others arrived, they entered through that door. Golodner Dep. at 44. Golodner testified that, at the time they entered Cafe Charbon, the bar and restaurant were open. Id. at 45. Scribot agreed that the cafe was open for business, and that the bar was serving drinks and charging regular prices. Scribot Dep. at 29. The restaurant remained open until its usual closing time of 12:00 a.m., but had closed by the time of the incident, and the chairs were on top of the tables and the lights were out in the restaurant area. Id. at 43-44. The bar stayed open until 1:00 a.m. Id. at 9.
When Golodner arrived at Cafe Charbon, there were about thirty to forty people at the bar. Golodner Dep. at 48. She had seen Scribot before, and knew the bartender, Christophe, but did not recognize anyone else in the bar. Id. at 36. Music was playing and people were dancing. Id. at 49, 54. Herberto Olivee ("Olivee"), a Cafe Charbon employee, was "DJing." Id. at 49-50. According to Golodner, she and Besnard remained at the bar for the entire evening. Id. at 45. Scribot claims, however, that Golodner and Besnard left Cafe Charbon at some point during the evening to attend another party, and then returned to the bar. Scribot Dep. at 47-48. Scribot stated that Golodner and Besnard exited through the front door, which was still unlocked at the time. Id. When they returned, they had to call Scribot so she could let them in because Scribot had locked the doors and closed the gates to ensure that she could control who entered the cafe. Id. at 47-49.
Golodner testified that at approximately 4:00 or 5:00 a.m., she decided that she wanted to leave the bar. Golodner Dep. at 53, 55. She told Besnard that she was tired and asked him to leave with her. Id. Besnard was not ready to leave, so Golodner decided to leave alone. Id. at 57. Golodner tried to exit through the main entrance, but it was locked. Id. at 57, 58. She turned to look for someone to assist her in opening the door and discovered that Olivee, one of Cafe Charbon's dishwashers, was standing behind her. Id. at 53, 58.
At the time, Golodner did not know that Olivee was employed by Cafe Charbon as a dishwasher, though she had seen him on two occasions earlier that night, once while he was DJing, and another time, drinking behind the bar. Id. at 49, 51, 52. Olivee was holding keys in his hand, and Golodner asked him to open the door for her. Golodner Dep. at 58. He told her that the door was locked and the gate was down, and that he could not open the door because he did not have the key. Id. at 59. He suggested that she follow him to another door. Id. at 59, 61-62.
Olivee led Golodner to a dark hallway. Id. at 63. Golodner became apprehensive, and was about to turn back when she saw a red illuminated exit sign. Id. She decided to continue to follow Olivee. Id. When they were near the exit, Olivee turned, grabbed Golodner, and put his mouth to her breast. Id. at 68. Golodner hit him and told him to get off her. Id. at 69. She turned to run away, but he grabbed her by the back of her pants and pulled her towards him. Id. at 70. He tore the front of her pants and the left side of her top, exposing her left breast. Id. at 71. He pulled her pants down to the top of her thigh and shoved his fingers into her vagina and rectum. Id. at 70-71. Golodner was carrying a heavy bag filled with bartending tools from her job. Id. at 70. She hit Olivee in the head with the bag, pushed him away, and ran through the back of the restaurant towards the bar. Id. at 70, 73. Olivee followed behind her. Id. at 73. Golodner pulled her pants up while running, but people in the bar could see that her pants were ripped and that half of her left breast was exposed. Id. at 73-74, 77.
When Golodner reached the bar area, she was screaming, "Where's Tomas?" and crying. Id. at 73. No Cafe Charbon bartender was working that night, but a person identified only as "Christophe," who Golodner knew previously, asked her what happened. She told him that Olivee had tried to rape her. Id. at 74. As Olivee came into the bar area behind her, she picked up a glass bottle and threw it at him. Id. at 75. The bottle hit Olivee and cut him. Id. Golodner also cut her right thumb. Id. at 75, 78-80. Scribot came out of the bathroom and saw Golodner and Olivee covered in blood, and heard Golodner screaming for someone to let her out of the bar. Scribot Dep. at 56-57, 59. Scribot asked what was happening and Christophe, who was attempting to comfort Golodner, told ...