ROTHSTADT, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2259-10. Thomas J. Vesper argued the cause for appellant (Westmoreland, Vesper, Quattrone & Beers, P.A., attorneys; R.C. Westmoreland, on the briefs). Stephen R. Dumser argued the cause for respondent Getty Petroleum Marketing, Inc. (Swartz Campbell, LLC, attorneys; Mr. Dumser, on the brief). Michael B. Devins argued the cause for respondent Shan & Co., Inc. (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Devins and Joseph G. Fuoco, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.

Plaintiff Jerome White appeals from the Law Division's March 5, 2013 order denying his motion to compel discovery and granting defendant Shan & Co., Inc.'s (Shan) cross-motion for a protective order. He further appeals from the court's February 28, 2014 orders granting summary judgment in favor of Shan and defendant Getty Petroleum Marketing, Inc. (Getty), dismissing his complaint. Plaintiff's complaint sought damages for injuries he sustained when he was shot during third-party defendant Walter Gleaton's, a/k/a Walter Mason attempt to kill a passenger in plaintiff's vehicle, while on the premises of Shan's gas station located on Getty's property in Trenton. The court denied the motion to compel because the information sought was not relevant and granted summary judgment because it found defendants did not breach any duty owed to plaintiff, as the injuries he sustained resulted from an intentional shooting and were therefore not foreseeable.

On appeal, plaintiff argues the motion judge failed to correctly apply both the appropriate burden of proof to defendants' motions and the "intervening and superseding cause" defense. He further asserts the court "erred in not allowing plaintiff to question" Shan concerning its employment of "illegal aliens." Getty contends the judge properly determined that it owed no duty of care to plaintiff and that the intentional shooting was "an intervening superseding cause" of plaintiff's injuries. Shan agrees the judge appropriately deemed the shooting a superseding cause, also averring the judge correctly found Shan did not breach any duty of care it owed to plaintiff. Additionally, Shan argues the shooting was unforeseeable because the evidence does not demonstrate any "pattern of violent criminal activity" that occurred at the gas station.

Having considered the parties' arguments in light of our review of the record and applicable legal principles, we affirm.

We begin by considering the court's grant of summary judgement. We review an order granting summary judgment de novo, applying the same standard used by the trial court, Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014), which requires summary judgment be denied if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Townsend v. Pierre, 221 N.J. 36, 59 (2015) (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)); see R. 4:46-2(c).

The salient facts, drawn from the competent evidential materials, and viewed "in the light most favorable to plaintiff, the non-moving party," Lippman v. Ethicon, Inc., 222 N.J. 362, 367 (2015) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 540 (1995)), were substantially undisputed and can be summarized as follows.

On October 9, 2009, at approximately 2:19 a.m., Gleaton shot plaintiff at Shan's Getty gas station while attempting to kill plaintiff's passeneger, Mr. Parker. The incident occurred when plaintiff drove his vehicle, in which Parker was located in the front passenger seat, to the gas station. Seconds after their arrival, Gleaton approached the passenger side of the vehicle and asked if Parker was "all right," to which Parker responded by telling Gleaton to "get the f--- out of here." Gleaton proceeded to shoot plaintiff in the chest and Parker in the neck and ear. As a result of being shot, plaintiff suffered a fracture to his thoracic vertebrae and is now a paraplegic.

Plaintiff was aware that Gleaton and Parker were members of the same gang and that there was a history of animosity between them. The intentional shooting was in retaliation for actions Parker previously took against Gleaton.

In his ensuing complaint, plaintiff claimed Getty and Shan were negligent, specifically alleging they failed to provide adequate security at the station to prevent and deter criminal acts. He asserted his injuries were the proximate result of defendants' failure to exercise reasonable care, maintaining the gas station posed a "significant foreseeable danger" to customers, as defendants were aware of prior criminal acts having occurred on the premises and related security hazards that existed in the area.

During the litigation, plaintiff deposed a Shan officer and the employee who was working at the station on the night of the incident. The witnesses refused to answer any questions at the depositions regarding the employee's immigration and work status because the information was not relevant to any issues in the case. Subsequently, the court denied plaintiff's motion to compel answers relating to the immigration and employment status of Shan's employees, and granted Shan a protective order pursuant to Rule 4:10-3. The order prohibited plaintiff from pursuing questioning or referencing discovery that related to the immigration or employment status of Shan's employees, insofar as the constitutional guarantee against self-incrimination was implicated.

After the completion of discovery, Getty filed an application for summary judgment, arguing no duty was owed to plaintiff, and the violent acts of a third-party criminal constituted a superseding cause absolving it of liability. Shan also filed a motion for summary judgment, contending it owed no duty to plaintiff because the violent criminal activity that transpired was not reasonably foreseeable, and targeted gang violence was a superseding cause.

As part of his opposition to defendants' motions, plaintiff supplied reports and deposition transcripts from two experts he retained. Both experts opined that defendants breached a duty to plaintiff by failing to provide adequate security for customers, while implementing proper safeguard to protect employees. The experts primarily relied on the gas station's location in Trenton, a known high crime area where gang members congregated. One expert opined that the shooting did not constitute a random act of crime, but rather a retaliatory hit that was executed to avoid detection. Yet, the expert failed to reference specific facts establishing that plaintiff's decision to go to the gas station on the night in question was anything but random.

In granting defendants' motions for summary judgment, Judge Darlene J. Pereksta noted plaintiff's deposition testimony confirmed that he and Parker entered the gas station "perhaps even less than 10 to 15 seconds" before the shooting. The judge highlighted the lack of evidence showing any violent crimes having occurred at the gas station for at least three years prior to this event. Recognizing the history of hostility between Gleaton and Parker, as well as that the shooting took place moments after their contact with each other, the judge found the events were "extraordinary" and "constitute[d] a superseding cause." She explained that such a "motivated, targeted shooting . . . br[oke] whatever chain of events that would have been set into motion."

Judge Pereksta also determined no duty existed, even in light of the "totality of the circumstances." She noted that, while the majority of Trenton is a high crime area, plaintiff failed to present evidence demonstrating that criminal conduct of this nature should be anticipated by a property owner.

The court ordered the entry of summary judgment, dismissing the complaint with prejudice. This appeal followed.

Plaintiff specifically argues his experts' testimony that defendants breached a duty to protect plaintiff and other similarly situated individuals evinces an issue of material fact, rendering summary judgment incorrectly granted. He contends a business owner owes a duty to invited guests to maintain the business' premises in a reasonably safe condition. Further, plaintiff argues Shan's contractual obligation to operate the gas station twenty-four hours a day in a location engulfed in criminal activity created a "magnet business." He emphasizes that no other nearby establishment remained open after midnight, in addition to the "extreme safety measures" implemented to protect employees by encasing the area surrounding the cash register with bulletproof glass. As a result, he claims, Getty and Shan were obligated to require implementation by the operator of the gas station of any and all reasonable safety measures. For support, plaintiff relies on his experts' opinions concerning the foreseeability of the harm inflicted and the preventative safety measures that could have been employed. We disagree with plaintiff's assessment of the competent proofs and corresponding legal conclusions.

Based on our de novo review of "the trial court's legal determination that defendants owed no duty to protect plaintiff from being shot by [a] third-party assailant . . . we fully concur with the trial court's conclusion that the occurrence of gunfire at the [gas station] was not reasonably foreseeable, even viewing the record in a light most favorable to plaintiff." Peguero v. Tau Kappa Epsilon Local Chapter, 439 N.J. Super. 77, 87 (App. Div. 2015) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (discussing liability for injuries caused by a shooting at a fraternity's party)).

The foreseeability of a defendant's conduct is crucial to a court's determination of whether, under a totality of the circumstances, a duty of care was owed to an injured plaintiff. See Peguero, supra, 439 N.J. Super. at 88 (citing Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996); Kelly v. Gwinnell, 96 N.J. 538-45 (1984)); Sanchez v. Indep. Bus Co., Inc., 358 N.J. Super. 74, 80-81 (App. Div. 2003). Essentially, foreseeability is "based on the defendant's knowledge of the risk of injury." Peguero, supra, 439 N.J. Super. at 93 (quoting Podias v. Mairs, 394 N.J. Super. 338, 350 (App. Div.), certif. denied, 192 N.J. 482 (2007)).

As we have previously observed in Sanchez:

The key to the legal determination that a duty exists is based upon the foreseeability of the risk, the seriousness of the risk,

and the "practicality of preventing it." J.S. v. R.T.H., 155 N.J. 330, 339 (1998). When a plaintiff seeks to impose a duty on a defendant to control the acts of a third party, the plaintiff "may be required to prove that defendant was in a position to 'know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a] third person' that was 'likely to endanger the safety' of another." Id. at 338 (quoting Clohesy[ v. Food Circus Supermarkets, 149 N.J. 496, 507 (1997)].

[Sanchez, supra, 358 N.J. Super. at 80-81 (alterations in original).]

Traditionally, the duty of the owner or occupier of land depends on whether the injured party's status was "that of business invitee, licensee, or trespasser." Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 316 (2013) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). However, "modern case law has eschewed such rigid categories and instead adopted a more flexible analysis rooted in considerations of reasonable care." Peguero, supra, 439 N.J. Super. at 90.

"It has historically been held that . . . business premises owners[] are not generally responsible for the criminal acts of others. That general rule, however, admits of exceptions, largely based on an analysis of whether the premises owner exercised reasonable care under the circumstances." Estate of Desir, supra, 214 N.J. at 318 (citation omitted).

A duty will not be imposed, even in a high crime area, unless there is evidence of prior, similar incidents, Butler v. Acme Mkts., Inc., 89 N.J. 270, 274-75 (1982), or there were no prior criminal acts on the premises, but the owner was aware of prior criminal activity in the neighborhood. Clohesy, supra, 149 N.J. at 516-17.

As the Court explained in Estate of Desir:

As an example, this Court concluded that the owner of a supermarket that was located in a high crime area owed a duty of care to a patron who was attacked and robbed in its parking lot. See Butler[, supra, 89 N.J. at 280] (relying on and quoting Restatement (Second) of Torts § 344 and comment f). That holding, however, rested on evidence that the supermarket's owners were aware of several prior muggings on the premises, that they posted no warnings, and that the single security guard who was on duty was required to focus on preventing shoplifting and other thefts in the store along with patrolling the premises inside and out. Id. at 274-75.

We later extended our analysis of the scope of the duty owed to patrons who are outside a business and who are crime victims. See Clohesy[, supra, 149 N.J. at 516-17]. Expanding on the rule announced in

Butler, we held that the premises owner's duty to provide a safe place for patrons to conduct business did not depend on the owner's knowledge of prior criminal acts on the property, but could arise based on the owner's awareness of more generally occurring criminal acts nearby. Ibid. However, in considering a business owner's liability for an injury caused by a criminal act, in both Butler and Clohesy this Court addressed circumstances in which the crime occurred on the owner's property. See Clohesy, supra, 149 N.J. at 517; Butler, supra, 89 N.J. at 274. In each, the crime itself was committed in a grocery store's parking lot and the foreseeability analysis turned in large part on the owner's awareness of prior crimes on its property, as in Butler, or nearby, as in Clohesy.

[Estate of Desir, supra, 214 N.J. at 318-19 (emphasis added).]

We have applied the foregoing guiding principles in cases involving both gang violence and shootings. In both scenarios, we have looked to the business or property owner's experience and knowledge dealing with violent crimes. For example, in Kuehn v. Pub Zone, 364 N.J. Super. 301, 312 (App. Div. 2003), certif. denied sub nom., Kuehn v. Kerkoulas, 178 N.J. 454 (2004), we applied these considerations where gang violence caused injury to a plaintiff. We found a duty was owed in light of the totality of the circumstances when specific gang violence occurred at defendant's establishment. Id. at 313. The gang violence was deemed foreseeable because the proprietor knew the specific gang engaged in random acts of violence from his own "past experience and from other sources." Ibid.

On the other hand, in Peguero, we affirmed summary judgment and dismissal of the plaintiff's complaint where "there was no evidence showing that it was reasonably foreseeable that plaintiff would have been shot by a third party while attending [a] fraternity event." Peguero, supra, 4 39 N.J. Super. at 80. In so finding, we relied on the facts showing the property lacked "a track record of prior violent incidents[,] . . . the police had come to the house on only one prior occasion, in response to a noise complaint[,] . . . [and] no prior incidents involving a weapon" had occurred. Id. at 85.

Here, the evidence failed to establish a pattern of criminal activity transpiring on the gas station's premises or any incidents of violent crime that would lead an individual to foresee an attempted execution — or similar distinct violent crime — taking place there. Plaintiff could not dispute that the types of crimes or their frequency occurring in the immediate area were not similar. Contrary to plaintiff's assertions, his experts' findings and opinions did not establish a genuine issue of material fact. Both experts opined as to the volume of crime in the gas station's general vicinity. However, neither expert demonstrated the gas station's premises as the location of any violent crime over the three years before the shooting. To the extent various non-violent incidents occurred during that time, they did not establish a pattern of the type of violent criminal conduct occurring here.

Following our review, we conclude the competent evidence contained in the motion record "does not come close to the sort of proof" necessary to impose a duty upon defendant to prevent this specific attack. Peguero, supra, 439 N.J. Super. at 92. A reasonable jury could not conclude the criminal conduct here was likely to occur. See Clohesy, supra, 149 N.J. at 507.

Plaintiff's remaining arguments are either now moot in light of our decision or without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION