Opinion
DOCKET NO. A-4558-13T4
06-03-2015
FAMOUS RIVERA and BRUCEZETTA DUNCAN AS ADMINISTRATRIX AD PROSEQUENDUM OF ESTATE OF BRUCE RIVERA, Plaintiffs-Appellant, v. CITY OF PLAINFIELD, BLACK UNITED FUND and AFRICAN AMERICAN FUND OF NEW JERSEY, Defendants-Respondents, and LINWOOD CATHCART, PHILLIP PENDER, PLAINFIELD YOUTH BASKETBALL PROGRAM, MARKITA NORRIS, and MALCOLM HUNTER, Defendants.
Vlasac & Shmaruk, LLC, attorneys for appellants (John M. Vlasac, Jr., of counsel and on the brief). Antonelli Minchello, P.C., attorneys for respondent City of Plainfield (David L. Minchello, on the brief). Respondent Black United Fund has not filed a brief. Respondent African American Fund of New Jersey has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4583-10 and L-4585-10. Vlasac & Shmaruk, LLC, attorneys for appellants (John M. Vlasac, Jr., of counsel and on the brief). Antonelli Minchello, P.C., attorneys for respondent City of Plainfield (David L. Minchello, on the brief). Respondent Black United Fund has not filed a brief. Respondent African American Fund of New Jersey has not filed a brief. PER CURIAM
Plaintiffs Famous Rivera and Brucezetta Duncan, administratrix ad prosequendum of the estate of Bruce Rivera, (collectively, plaintiffs), appeal from the order denying their motion for reconsideration of the Law Division's prior order that granted summary judgment to defendant City of Plainfield (Plainfield). The standards governing our review are well known.
We understand that plaintiffs' claims against other defendants have been resolved or otherwise were not pursued. In any event, we address solely the issues before us dealing with plaintiffs' claims against the City of Plainfield.
Reconsideration is to be utilized narrowly, and reserved for situations where the court relied "'on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12 , 380 N.J. Super. 159, 175 (App. Div. 2005). (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, comment on R. 4:49-2 (2005)). Motions for reconsideration are addressed to "'the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (reconsideration should be exercised "'in the service of the ultimate goal of substantial justice'" (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988))).
The failure on plaintiffs' part to include in the notice of appeal and amended notice of appeal the original order granting defendant summary judgment permits us to limit our review solely to the denial of the motion for reconsideration. Fusco v. Bd. of Educ. of the City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). We overlook that technical failure in this case, however, because the case information statement references both orders and "the substantive issues in the case and the basis for the motion judge's ruling on the [motion for] summary judgment and [the] reconsideration motion[] [were] the same." Id. at 461.
"An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether 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."The practical effect . . . is that neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J. at 38.
[Brill, supra, 142 N.J. at 540.]
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). In this regard, "[w]e review the law de novo and owe no deference to the trial court . . . if [it has] wrongly interpreted a statute." Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
I.
Considered in a light most favorable to plaintiffs, the motion record reveals that on March 27, 2010, the Riveras attended an annual fundraiser-dance conducted by the Friends of Plainfield Youth Basketball (the Friends) to raise monies for Plainfield's Youth Basketball Program. As it had for the prior ten years, the dance was held at a 50,000 square foot building that housed a gymnasium and auditorium, owned by the Black United Fund (the BUF). Surveillance system cameras recorded events inside and around the perimeter of the building.
In addition to his full-time job in private industry, for the prior eighteen years, Agur Linwood "Lenny" Cathcart had been the coordinator of Plainfield's seasonal basketball league, operated by the city's Department of Parks and Recreation (the Department). Cathcart supervised ten staff members and between thirty and forty volunteers for the program, which attracted 300 to 400 youth between six and seventeen-years-old. Cathcart organized the Friends as a registered non-profit to help raise funds for the basketball program.
Cathcart testified at deposition that the Department was "aware of [fundraising events], but [Cathcart] didn't have to go through [the Department]" to run them. At least once a year, at the beginning of the basketball season, the Department would copy and include the Friends' fundraising information in a packet distributed to parents. Cathcart would provide separate flyers for other fundraising events scheduled later in the season. The flyer used for the March 2010 dance said:
Plainfield Youth Basketball Program
Hosts Their Annual
Ain't No Party Like a Rec Party
Night Out with the Parents Dance
Part 15
Cathcart said the Department exercised no oversight nor had any involvement with events operated by the Friends, including the March 2010 dance.
The Department's superintendent, David Wynn, testified at deposition that the Department paid for trophies awarded at the end of the basketball season, and volunteers from the Friends would have input into the amount of trophies and to whom they would be given. Wynn acknowledged that employees from the Department and volunteers helped Cathcart run the Friends' dance. However, Wynn emphatically denied sponsoring the March 2010 dance, supervising Cathcart's activities regarding the dance or authorizing any municipal funds for the event.
Cathcart applied for a "public entertainment/mayor's permit" for the dance in his own name on behalf of the Friends. A municipal ordinance required the application for municipal authorities to have "the necessary information so they may maintain the public safety and order." Plainfield issued the permit, which stated at the bottom: "SECURITY REQUIRED: HIRING OF TWO (2) POLICE OFFICERS RECOMMENDED." No police officers were hired to provide security for the dance, although some were in attendance.
The party was limited to adults over the age of twenty-five, and, although liquor was not served, it was common knowledge that patrons could, and did, bring alcohol to the dance. Cathcart explained that he never experienced any problems at the dance in the past, and people who volunteered would make sure there never was any problem with the crowd.
At the March 2010 dance, however, Cathcart was notified of a physical altercation that took place between an off-duty police officer, Rene Marte, and another patron. Partygoers separated the men, and Cathcart escorted Marte and his friends out of the building. Marte supplied a handwritten statement included in plaintiffs' opposition to the summary judgment motion. Marte stated there were no police officers at the event, no other security was in place, alcohol was prevalent and the dance was extremely crowded. As the dance came to an end, an argument broke out that resulted in the stabbing death of Bruce Rivera, and the stabbing of Famous Rivera, immediately outside the BUF building.
Also in opposition to Plainfield's motion, plaintiffs filed a handwritten statement from Kathy Rivera, Bruce's sister. She too stated that, unlike a year earlier, there were no police officers or other security at the party, which was overcrowded.
Plaintiffs' brief advises that Markita Norris and Malcolm Hunter were convicted of crimes associated with the stabbings.
Plaintiffs filed their complaint, naming Cathcart, Plainfield and others as defendants. Plainfield filed its answer solely on behalf of the city, discovery ensued, and Plainfield moved for summary judgment. The motion was submitted for a ruling on the papers unless opposed. See R. 1:6-2(d). Plaintiffs filed opposition, but the judge's chambers did not schedule argument.
On March 5, 2014, the judge issued an order that granted Plainfield summary judgment, along with a written opinion setting forth her reasons. The judge concluded that the record evidence did not support plaintiffs' claim that Plainfield sponsored the dance. She further determined that Plainfield was entitled to the immunities conferred by N.J.S.A. 59:2-5 and N.J.S.A. 59:5-4.
Plaintiffs timely moved for reconsideration. In support, they filed a report from their expert, James Dallas, that had been inadvertently omitted from their opposition to Plainfield's summary judgment motion. Dallas concluded that it was foreseeable there would be violence at the event, given the unrestricted use of alcohol, the size of the crowd, and the lack of security. Dallas opined that Plainfield had a duty to ensure the Friends provided adequate security for the event.
BUF joined in plaintiffs' motion, and offered the report of their security expert, Paul Calandra, in support.
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Reiterating much of the motion record we have cited above, plaintiffs' counsel's certification contended that Plainfield, Cathcart and the Friends "were [] intertwined" in a "symbiotic relationship." Plaintiffs also argued that Plainfield was not entitled to immunity under N.J.S.A. 59:2-5, because it issued a permit when it knew or should have known that a dangerous condition would be created by the Friends' dance.
Following argument, the judge issued her opinion orally on the record. She thoroughly addressed plaintiffs' contentions before concluding that "the motion [was] a reprisal of the arguments in the initial motion." The judge entered an order denying the motion for reconsideration, and this appeal followed.
II.
Plaintiffs argue the judge erred in assessing the motion evidence and concluding that Plainfield owed no duty to them. They also argue that the judge erred in applying immunities under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3, to bar their claims. We have considered these arguments in light of the record and applicable legal standards. We affirm.
The Court has said that "the dominant theme of the TCA was to reestablish the immunity of all governmental bodies in New Jersey, subject only to the TCA's specific liability provisions." Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 207 (2004) (emphasis added) (citations omitted). "The guiding principle of the [TCA] is that 'immunity from tort liability is the general rule and liability is the exception[.]'" Coyne v. Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)); see also N.J.S.A. 59:2-1(a) ("Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.").
Under the TCA, a public entity may be liable in certain circumstances for dangerous conditions that exist on its property. N.J.S.A. 59:4-2. Plaintiffs seemingly acknowledge in their brief that Plainfield could not be liable under this section of the TCA because the dance took place on private property.
A public entity is also liable under the TCA "for injury proximately caused by an act or omission of a public employee within the scope of his employment." N.J.S.A. 59:2-2(a). As the Court has recently said, "vicarious liability of the public entity for the negligent act of its employee is the primary source of liability for the public entity." Robinson v. Vivirito, 217 N.J. 199, 207 (2014).
As noted, plaintiff argued in the Law Division that the Friends and the Department were essentially alter egos, and Cathcart, and other city workers, made up the thread that bound them together. However, it is undisputed that Cathcart applied for the license in his name under the auspices of the Friends. Although employed by Plainfield, Cathcart organized the Friends specifically to raise monies to support the youth basketball league. In other words, the very purpose of the Friends was to divorce its activities from the official actions of the municipality. Cathcart's testimony was unrebutted: Plainfield did not control his activities in organizing or operating the dance, and it did not contribute any monies toward the dance.
In short, plaintiff has not advanced a theory of potential liability against Plainfield that finds support within the express provisions of the TCA. Plainfield did not permit a dangerous condition to exist upon its property, N.J.S.A. 59:4-2, and Plainfield was not vicarious liable because of "an act or omission of a public employee within the scope of his employment." N.J.S.A. 59:2-2(a).
Moreover, we agree with the motion judge that Plainfield is entitled to specific immunities provided by the TCA. Under the TCA, "[w]hen both liability and immunity exist, immunity prevails." Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) (citations omitted), certif. denied, 196 N.J. 461 (2008); see also Weiss v. N.J. Transit, 128 N.J. 376, 382 (1992) (citations omitted) (explicit grant of immunity under the TCA "will prevail over the liability provisions").
Under the TCA, "[a] public entity is not liable for an injury caused by the issuance . . . [of] any permit, license, certificate, approval, order, or similar authorization where the public entity . . . is authorized by law to determine whether or not such authorization should be issued." N.J.S.A. 59:2-5. This immunity attaches to all phases of the licensing function and to all acts, discretionary or ministerial. Malloy v. State, 76 N.J. 515, 520 (1978); Pinkowski v. Twp. of Montclair, 299 N.J. Super. 557, 570 (App. Div. 1997).
Plaintiffs argue that the immunity does not apply because after issuing the license, Plainfield did not ensure that the Friends complied with the permit or ordinance, and thereby the municipality negligently permitted a dangerous situation to exist due to the lack of security. However, we have repeatedly rejected such arguments.
In Garry v. Payne, 224 N.J. Super. 729, 732-34 (App. Div. 1988), we rejected plaintiff's arguments that various immunity provisions of the TCA, including licensing immunity, did not apply to bar claims for personal injuries resulting from a fire at a non-complying, licensed rooming house. In McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 449-50 (App. Div. 1977), we rejected the contention that N.J.S.A. 59:2-5 did not apply to bar a claim based upon the municipality's "improper approval of the construction of [a] driveway" for a restaurant.
In the Law Division, and again before us, plaintiffs argue that Ball v. New Jersey Bell Telephone Company, 207 N.J. Super. 100 (App. Div.), certif. denied, 104 N.J. 383 (1986), supports their position. In Ball, the decedent died in an automobile collision with a telephone pole that was placed on the State highway side of a guardrail. Id. at 103. The decedent's estate claimed that the State, among other public entities, was liable for failing to remedy the dangerous condition caused by the pole. Ibid.
The State sought to invoke the immunity provided by N.J.S.A. 59:2-5, since it had issued a permit to the private utility that installed the pole. Id. 109-10. We rejected application of the immunity, stating
the culpable act is not the issuance of a permit. Rather, it is the creation and maintenance of a dangerous condition upon the property and the "palpably unreasonable" conduct of the public entity in failing to remedy it. We thus conclude that the Legislature did not intend to confer immunity on a public body under N.J.S.A. 59:2-5 for injuries sustained by virtue of a dangerous condition it creates and maintains on its property.Ball, however, has no application to the facts presented here, because the permit issued to the Friends did not create a dangerous condition on public property, or allow the continued maintenance of a dangerous condition on public property.
[Id. at 110-11 (emphasis added) (citations omitted).]
Furthermore, we note that the municipality is immune from liability under N.J.S.A. 59:2-4 as to plaintiffs' contention that Plainfield's failure to enforce the terms of the permit or its ordinance subjects the city to liability. That section of the TCA provides that a public entity is "not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law." Ibid. We have applied this immunity to claims against public entities based upon a failure to enforce maintenance or traffic codes, Townsend v. Pierre, 429 N.J. Super. 522, 532 (App. Div. 2013), rev'd on other grounds, 221 N.J. 36 (2015); to arrest as a result of an alleged domestic violence incident, S.P. v. Newark Police Dep't, 428 N.J. Super. 210, 233 (App. Div. 2012); and to enforce local ordinances requiring property owners to shovel property-abutting sidewalks, Luchejko v. City of Hoboken, 414 N.J. Super. 302, 318 (App. Div. 2010), aff'd on other grounds, 207 N.J. 191 (2011).
Finally, although not discussed in plaintiffs' brief, the Law Division judge also took note of and applied the immunity provided by N.J.S.A. 59:5-4. That section provides "[n]either a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service." Ibid. Although plaintiffs have not argued police protection was necessary or required at the dance, they have made pointed reference to the dance held in 2009, when two uniformed police officers allegedly were located outside the entrance to the BUF premises.
In any event, to the extent the argument implicates this immunity provision of the TCA, we agree with the Law Division judge that any claim of negligence based on Plainfield's failure to supply sufficient police presence is barred. See e.g., Sczyrek v. Cnty. of Essex, 324 N.J. Super. 235, 241-42 (App. Div. 1999) (holding defendant-county immune under the TCA when it allegedly failed to provide adequate courthouse security during the fatal shooting of a police officer by a witness in a trial), certif. denied, 163 N.J. 75 (2000); Henschke v. Borough of Clayton, 251 N.J. Super. 393, 400 (App. Div. 1991) (holding defendant-municipality immune under the TCA when it allegedly failed to investigate claims of theft on a resident's private property).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION