Opinion
DOCKET NO. A-1682-13T2
01-26-2015
MATTHEW FLOOD, Plaintiff-Appellant, v. TOYS R US, INC., and PIERRE A. BERNARD, JR., Defendants-Respondents.
Hendricks & Hendricks, attorneys for appellant (Patricia M. Love, on the briefs). Psak and Associates, attorneys for respondent Toys R Us, Inc. (George L. Psak and Ellen L. Yang, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5682-12. Hendricks & Hendricks, attorneys for appellant (Patricia M. Love, on the briefs). Psak and Associates, attorneys for respondent Toys R Us, Inc. (George L. Psak and Ellen L. Yang, on the brief). PER CURIAM
Plaintiff Matthew Flood appeals the Law Division's October 28, 2013 order granting summary judgment to defendant Toys "R" Us, Inc., and dismissing his negligence claim against it. We affirm.
According to its brief, the company's correct name is Toys "R" Us-Delaware, Inc.
I.
We discern the following facts and procedural history from the record on appeal.
In the early evening of February 24, 2012, Flood went to the Toys "R" Us store in Woodbridge to shop with his two children. Upon arriving, they went to the customer service counter to return some prior purchases. According to Flood, he placed the items on the counter and waited for an employee to assist him.
As an employee approached, another customer, Christina Velez, pushed her cart up to the customer service counter and told Flood that the line for service started at a waiting area behind them, rather than at the counter. Flood gathered the items and went to the area indicated by Velez.
As Flood left the counter, he said something to Velez. According to Flood, he told Velez she had made a "ghetto move." He asserts that Velez laughed derisively in response to his comment. Velez maintains that Flood said: "That was some really ghetto shit you just pulled."
While Velez proceeded with her transaction, a second employee arrived to assist Flood. As Flood was leaving the counter for the second time, he again spoke to Velez. According to Flood, he said: "[T]here's some nice people in this world, and then there's some people that are just piece[s] of shit." Velez, however, claims that Flood called her "a piece of shit." As he walked away, Flood said something to the effect of "[g]o tell your husband" or "go get your husband."
After Flood left the area, Velez called her fiancée, defendant Pierre A. Bernard, Jr., and asked him to meet her at customer service. When Bernard arrived, she told him about her interactions with Flood. Bernard observed two employees at the service desk shaking their heads in apparent disapproval of what had taken place between Flood and Velez. According to Velez, however, no store employees heard the conversation between her and Bernard.
Bernard and Velez subsequently married.
A short time later, Bernard directed Velez's attention to someone who matched her description of the man who spoke to her at the customer service counter. She responded that it was the same man. About a minute later, Bernard confronted Flood. A video surveillance tape shows Bernard walking towards Flood from a distance of approximately ten to fifteen feet. Flood was on his cell phone at the time. As Bernard came closer, Flood put his cell phone in his pocket.
Flood had called his wife to vent about what happened and because he thought there might be a fight.
When Bernard reached Flood, he pushed him. Both individuals disappeared out of camera view. Seconds later, Bernard is seen pushing Flood to the ground. The video shows a female employee running to the front of the store and another female employee running from the front of the store towards Flood and Bernard, apparently gesturing to Bernard to stop the attack. She made some effort to intervene physically. An off-duty police officer stopped the fight and told the store personnel to call the police.
The remaining video showed intermittent footage of Bernard struggling with Flood, who was on the ground. Bystanders, including some store employees, can be seen observing the fight.
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In August 2012, Flood filed a complaint against Toys "R" Us and Bernard, claiming damages for personal injury resulting from the altercation. Flood alleged that Toys "R" Us was negligent in failing to provide a reasonably safe environment for its business invitees. Toys "R" Us answered and cross-claimed against Bernard. Bernard did not respond to the complaint or the cross-claim. Flood eventually obtained a default judgment against him.
In September 2013, Toys "R" Us filed a motion for summary judgment. It argued that Flood had no factual support for his negligence claim and no expert to support his assertion that greater precautions should have been taken to protect shoppers in the store.
The motion judge heard oral argument in October and reserved decision so he could review the video recording of the incident. In a written decision issued on October 28, the judge found that
no reasonable jury could find that it was foreseeable that Defendant Bernard would assault and batter [Flood] in Toys "R" Us. To find otherwise on the facts of this case, would be a finding that Toys "R" Us should have been able to read Mr. Bernard's mind. Once the fight started in this store, Toys "R" Us was under no duty to "break up" the fight.The judge filed the implementing order the same day. This appeal followed.
II.
On appeal, Flood argues that the trial judge erred in granting summary judgment because, giving him the benefit of all reasonable inferences from the undisputed facts in the record, a reasonable jury could have found Toys "R" Us liable.
A.
We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
B.
"[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (alteration in original) (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)). "The plaintiff bears the burden of establishing those elements," ibid. (citing Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)), "'by some competent proof.'" Ibid. (quoting Overby v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953), aff'd o.b., 14 N.J. 526 (1954)).
"The issue whether a defendant owes a legal duty is generally a question of law for the court to decide." Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997) (citing Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1997)); Peguero v. Tau Kappa Epsilon, ___ N.J. Super. ___, ___ (2015) (slip op. at 15). Likewise, "the scope of a duty owed is a matter of law." Ibid. (citing Kelly v. Gwinnell, 96 N.J. 538, 552 (1984)).
The duty of the owner or occupier of land depends on the status of the injured party, i.e., "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)). In the context of claims against premises owners for injuries resulting from the criminal acts of third parties, the general rule is that "individuals, including business premises owners, [are] not generally responsible for the criminal acts of others." Id. at 318 (citing W. Page Keeton et al., Prosser and Keaton on Torts § 33, at 201 (5th ed. 1984)).
Exceptions to the general rule have developed over time, based primarily on an analysis of "whether the premises owner exercised reasonable care under the circumstances." Ibid. In Butler v. Acme Markets, Inc., 89 N.J. 270, 274-75, 280 (1982), the Court held that a supermarket in a high crime area owed a duty of care to a patron who was attacked and robbed in its parking lot in which there had been prior, similar incidents. In Clohesy, supra, 149 N.J. at 516-17, the Court found that the duty extended to patrons even when there were no prior criminal acts on the premises, if the owner was aware of prior criminal activity in the neighborhood.
We have held that in determining whether there is a duty, there must be a legal analysis of whether
a duty exists . . . based upon the foreseeability of the risk, the seriousness of the risk, and the practicality of preventing it. 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.Nevertheless, the mere fact that a risk is foreseeable does not in itself give rise to a duty. Ibid. See also Estate of Desir, supra, 214 N.J. at 317.
[Sanchez v. Indep. Bus Co., 358 N.J. Super. 74, 80 (App. Div. 2003) (alterations in original) (citations and internal quotation marks omitted).]
To determine whether a business owner could have foreseen the criminal act of a third party, courts will evaluate the totality of the circumstances. Clohesy, supra, 149 N.J. at 506-08. In Butler, supra, 89 N.J. at 274, 277, the Court noted that the foreseeability of a crime occurring on the premises had been established because "[s]even muggings had occurred on the Acme premises in a year's time, five of which occurred in the evenings during the four months preceding the attack on [the plaintiff]." In addition, the store was aware of the problem, having hired off-duty police officers for security on certain evenings prior to the incident involving Butler. Id. at 274. Under those circumstances, the Court found that the store had a duty to protect patrons in the parking lot. Ibid.
In Clohesy, supra, 149 N.J. at 500, a seventy-nine-year-old woman was abducted from a supermarket's parking lot and murdered. The store had no security on the premises. Id. at 503. Police records reflected that nearly sixty criminal incidents had occurred near the store over the preceding two-and-one-half-year period. Ibid.
The Court found that "[u]nder the totality of the circumstances approach, the actual knowledge of criminal acts on the property and constructive notice based on the total circumstances are relevant to foreseeability." Id. at 516. The Court added that "foreseeability can stem from prior criminal acts that are lesser in degree than the one committed against a plaintiff. It can also arise from prior criminal acts that did not occur on defendant's property, but instead occurred in close proximity to the defendant's premises." Id. at 516-17. It concluded that, "[h]aving extended an invitation to use the parking lot to shop . . . , defendant was obligated not to engage in any affirmative actions or omissions that would unreasonably create or increase the risk of injury to shoppers from the criminal activity of a third party." Id. at 516.
In Ivins v. Town Tavern, 335 N.J. Super. 188, 190-91 (App. Div. 2000), we considered a claim that a tavern breached a duty to provide a safe premises for its patrons after the plaintiff was injured in a fight between two other patrons. The plaintiff alleged that the tavern owner should reasonably have foreseen the eventuality of a fight because it was "general knowledge" that the two patrons did not get along, the tavern's employees were aware of the aggressor's violent nature, and there had been prior incidents of fights and assaults in the bar and the parking lot. Id. at 191-94. In fact, there had been only two incidents of actual violence on the premises in the past year, and "there was no evidence that the tavern was located in an area that was particularly susceptible to violence." Id. at 197. We found that there was no liability because "there was no evidence of any events occurring inside the tavern that night that should have put the tavern employees on notice that a possible fight was in the works, triggering a duty on their part to take preventative measures." Ibid.
In Sanchez, supra, 358 N.J. Super. at 78, a third-party defendant named Johnson boarded a bus, sat in the back, and started playing a "boom box" at a loud volume. Sanchez did not have a seat, so he was standing on the steps near the rear door of the bus. Ibid. Because the bus's policy prohibited passengers from playing their radios on the bus, the driver asked Johnson to turn off the radio, and he complied. Id. at 78-79. Johnson turned the radio back on fifteen minutes later, as he was walking toward the rear exit doors to get off the bus. Id. at 79. At that point, Sanchez asked him to turn the radio off, but Johnson ignored the request. Ibid. The bus driver "heard the radio come back on," but did not ask that it be turned off. Ibid.
As Johnson was waiting for his stop, he stepped on the foot of another passenger, who demanded that Johnson apologize. Ibid. When he did not, the two "exchanged words" and the passenger challenged Johnson to a fight. Ibid. While the passenger and Johnson were leaving the bus to fight, the passenger turned around and punched Johnson, who grabbed Sanchez's clothing, got back on the bus, and headed to the back of the bus. He and the passenger continued fighting. Ibid. At that point, Johnson pulled out a concealed handgun and fired several times. Ibid. One of the bullets hit Sanchez, rendering him a paraplegic. Another passenger was also injured. Ibid.
Sanchez and the other passenger sued the bus company and driver for negligence. Id. at 78. On motions for summary judgment, the trial court found that the defendants did not breach any duty owed to Sanchez or the other plaintiff. Id. at 83.
On appeal, we considered whether Johnson's wrongful act was foreseeable. See id. at 82. We noted that "there [was] no basis to conclude that the bus driver should have anticipated the events that actually occurred." Ibid. In particular, Johnson complied with the driver's request to lower the radio, "did not act at that time in a threatening manner towards any of the passengers," "[t]he events leading up to the shooting occurred within a time frame of about thirty seconds," and the bus driver did not have "sufficient information to know of the existence of a danger and enough time to act on behalf of the patron's safety." Id. at 82-83. In addition, "the bus driver was unable to see everything that was going on in the rear of the bus or prevent it." Id. at 82.
We noted that the bus company, as a common carrier, owed "a high degree of care for the safety of its passengers so as to avoid dangers that [were] known or reasonably anticipated." Id. at 81. Nevertheless, we held that
[t]he motion judge properly determined that defendants did not breach any duty owed to the plaintiffs. The judge aptly noted that the duty plaintiffs seek to impose on defendants is not one of simply having a high duty, but that of a guarantor of its passenger's safety regardless of scienter or notice. The judge noted the brevity and the location of the events in the rear of the bus. There was nothing defendants could have reasonably done to prevent this incident. Although plaintiffs contend that bus companies can have security guards on all buses, imposing this requirement upon all bus companies would neither be reasonable nor fair. To impose such an extreme duty of care upon a carrier in this situation would treat a public carrier specially for all purposes rather than for those risks associated with the conduct of the business. Defendants were unaware that Johnson was armed and had no reason to know of Johnson's violent predispositions. Under the totality of the circumstances, the judge properly granted summary judgment in favor of defendants.
[Id. at 83-84.]
With that background, we turn to Flood's argument that Toys "R" Us knew or should have known that Bernard was likely to assault him and had a duty under the circumstances to protect him. Flood argues that the assault was foreseeable because Velez responded loudly to the comment made by Flood as he was leaving the service desk, the store employees witnessed him tell Velez to go get her husband, she called her husband to come to the front of the store, her husband came to the front of the store, her husband asked for a description of the man involved, and the video shows that Bernard does not break his stride as he confronted Flood and pushed him to start the fight. According to Flood, a jury could find from those facts that a fight was going to occur, triggering a duty to warn or protect Flood from the assault. We disagree.
There is simply no basis in the record from which a reasonable jury could conclude that any employees of Toys "R" Us had sufficient information to warrant a determination that an assault by Bernard on Flood was foreseeable, giving rise to a duty to take protective action. "Foreseeability is essentially 'based on the defendant's knowledge of the risk of injury.'" Peguero v. Tau Kappa Epsilon, supra, slip. op. at 22 (quoting Podias v. Mairs, 394 N.J. Super. 338, 350 (App. Div.), certif. denied, 192 N.J. 482 (2007)). There is no allegation that Bernard stated that he intended to assault Flood or threatened him in any way, or that any employees knew that Bernard had been violent in the store on prior occasions. At best, they knew that Flood had insulted Velez, that she asked Bernard to come to the service counter, and that Bernard then asked her for a description of the person who insulted her. The actual assault occurred immediately after Bernard identified Flood. That is simply an inadequate factual basis on which to find sufficient foreseeability to impose a duty, when viewing the "'totality of the circumstances.'" See Peguero v. Tau Kappa Epsilin, supra, slip op. at 22 (quoting Robinson v. ViVirito, 217 N.J. 199, 209 (2014)). The facts of this case do not approach the facts known to the tavern's employees in Ivins, as described above, in which we nevertheless found no liability for lack of foreseeability.
Flood's remaining arguments are without sufficient merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Having engaged in a de novo review of the record in light of the applicable law and giving Flood the benefit of all reasonable inferences from the facts in the record, we affirm the dismissal of Flood's claims against Toys "R" Us.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION