Summary
affirming the grant of summary judgment to the defendant after the plaintiff was injured during a physical altercation with another shopper at a retail store
Summary of this case from Jackson-Locklear v. William Patterson Univ.Opinion
DOCKET NO. A-5234-13T2
07-15-2015
PAMELA SERURE, Plaintiff-Appellant, v. GENEVA SHEEHAN, Defendant, and T.J. MAXX, Defendant-Respondent.
Robert D. Farber argued the cause for appellant. Alan G. White argued the cause for respondent (Bonner, Kiernan, Trebach & Crociata, LLP, attorneys; Mr. White, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1399-12. Robert D. Farber argued the cause for appellant. Alan G. White argued the cause for respondent (Bonner, Kiernan, Trebach & Crociata, LLP, attorneys; Mr. White, on the brief). PER CURIAM
Plaintiff Pamela Serure appeals from a February 28, 2014 Law Division order granting the summary judgment dismissal of her complaint against defendant T.J. Maxx. She also appeals from the denial of reconsideration of that order.
Geneva Sheehan, another named defendant in the underlying lawsuit, did not answer plaintiff's complaint and default was entered against her. She does not participate in this appeal.
Plaintiff was assaulted by Sheehan while shopping in one of defendant's stores. Plaintiff filed suit, alleging defendant was negligent in failing to take measures to control Sheehan, which would have prevented Sheehan's physical assault upon her. Plaintiff argues material factual disputes exist regarding defendant's breach of duty, precluding summary judgment. She also maintains, contrary to the judge's conclusion, the determination of defendant's liability did not require expert testimony. We affirm.
These facts, found in the summary judgment record, are taken from plaintiff's certification, her interrogatory answers, and defendant's security video, which captured the event. We view all facts a light most favorable to plaintiff. Robinson v. Vivirito, 217 N.J. 199, 203 (2014).
Waiting to finalize her purchases at the cashier counter of defendant's Eatontown store, plaintiff noticed another shopper, later identified as Sheehan, standing right behind her cart, rather than following the store's practice of waiting in queue for the next open register. According to plaintiff, defendant's manager was checking plaintiff's order and "instructed Sheehan to go back [i]n the line until another register freed up." Sheehan refused and inched closer to plaintiff, who told her, "Please back up. I will be done shortly." Defendant replied, "F--- You!" Plaintiff "turned back to[ward] the manager trying not to engage with [Sheehan] any further." "The manager seemed to ignore the entire interaction," while defendant "continued to mumble expletives." Sheehan did not step back to the customer waiting area as requested. Instead, she took out her cell phone, stepped forward, and struck plaintiff from behind.
A loss prevention officer, undergoing training, was seated behind the checkout counter. Plaintiff identified him as the one "who ultimately broke up the fight." Plaintiff alleged, "[t]his gentleman never left the counter while . . . Sheehan was cursing at [plaintiff], raising her voice[,] and mumbling expletives."
Defendant provided the store's security video, which depicts images of the altercation, unaccompanied by sound. The video shows a brief conversation between plaintiff and Sheehan at the checkout counter, followed by plaintiff turning away to face the registers. Defendant's manager was on the telephone at this time, with her back partially toward plaintiff. Sheehan suddenly steps forward, raises her cell phone, strikes plaintiff on the head, and pulls her hair.
The Law Division provided this description after reviewing the video:
[Sheehan] is over five, eight feet away from [plaintiff] with another person. The loss prevention person is almost out of the screen. You can see his legs kind of hanging from - he's in a seated position behind the cashier.The unidentified man, apparently accompanying Sheehan, also attempted to control her. Following the incident, the two walked toward the exit.
There is a verbal back and forth apparently between the plaintiff and . . . Sheehan. . . . And it looks to be about 15, 18 seconds or so before that person moves forward to physically encounter the plaintiff. And almost immediately you see the loss prevention person run around the counter and try and break it up, as soon as the initial attack occurs.
It's literally within seconds. I didn't count them, but he jumped [in] pretty quickly.
Addressing whether defendant owed a legal duty to plaintiff that was breached by a negligent act or omission, causing her injury, the judge found "no indicia of any type of imminent physical activity" and concluded:
[U]nder this circumstance this Court cannot see how the plaintiff can prove her cause of action against the store. There's no expertThe judge granted summary judgment for defendant, dismissing plaintiff's complaint with prejudice. Reconsideration was sought and denied. This appeal ensued.
that tells me that this is something that they should have done, or should have known about. Plaintiff's [c]ounsel argues that this is something that's not beyond the k[e]n of a reasonable juror. I disagree with that, respectfully.
Because how security is conducted in a store, or any type of business premises, is not something the average person knows about. Yes, people understand a little bit about policing and - and thing[s] like that. But to assume that they know exactly what should happen in . . . a store such as this, and how a store is supposed to prevent a customer from going off on another one, I think requires something more than the average person can come up with.
We review the disposition of a summary judgment order under the same standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015); see R. 4:46-2(c). Therefore, we apply the standard articulated by the Supreme Court in Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995):
[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.See also Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Davis v. Devereux Found., 209 N.J. 269, 286 (2012). This standard permits the court to consider "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." Brill, supra, 142 N.J. at 533 (citation and internal quotation marks omitted).
On appeal, plaintiff argues Sheehan's loud and vexatious language should have placed defendant's employees on notice to intervene and control her, thus preventing the physical assault. Plaintiff challenges the trial court's conclusion, arguing events leading up to Sheehan's assault placed defendant on sufficient notice to trigger its duty to act, precluding entry of summary judgment. She also maintains the judge incorrectly concluded defendant's duty must be established by expert testimony. Defendant responds, arguing its duty of care was to take reasonable steps providing customers a safe store environment. Therefore, no breach of duty occurred because Sheehan's intentional assault was not foreseeable.
Our analysis "rests upon whether the imposition [upon the defendant] of a general duty to exercise reasonable care to prevent foreseeable harm is fair and just under the circumstances." Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 317 (2013). This requires us to review traditional tort concepts governing premises liability, which "is a subset of general negligence law," Peguero v. Tau Kappa Epsilon, 439 N.J. Super. 77, 88 (App. Div. 2015), and includes standards for a premises owner's liability to business invitees for the conduct of others on the premises.
"The issues of whether a defendant owes a legal duty to another and the scope of that duty are . . . questions of law," subject to our de novo review. Ibid. "[A] landowner generally has a duty to maintain the safe condition of its property for the protection of persons who lawfully enter the premises." Id. at 89 (citing Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 43-44 (2013)). However, "[i]t has historically been held that individuals, including business premises owners, are not generally responsible for the criminal acts of others." Estate of Desir, supra, 214 N.J. at 318. See also Restatement (Second) of Torts § 344 comment f (1965) ("Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.").
Addressing an owner's liability to prevent third-party criminal conduct on the premises, the Supreme Court adopted a "totality of the circumstances" analysis, as recited in the Restatement. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507, 514 (1997). This standard encompasses all matters considered by "a reasonably prudent person" id. at 508, and incorporates fairness considerations for imposing a duty, the foreseeability of the third-party conduct, and "whether the premises owner exercised reasonable care under the circumstances." Estate of Desir, supra, 214 N.J. at 318. Comment (f) of the Restatement captures the appropriate analysis:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
We find unpersuasive plaintiff's argument suggesting "[a] reasonable juror could conclude that a loud and serious verbal altercation should have put the cashier and the loss prevention officer on notice to at least assert themselves and try to break up the verbal altercation." Rather, we agree with the trial judge that the evidence in this record is insufficient to find defendant reasonably could have foreseen and prevented Sheehan's assault.
Here, no proofs were submitted suggesting a previous pattern of criminal conduct occurred in the store or its general vicinity. See Clohesy, supra, 149 N.J. at 516-17 (holding business owner liability may arise from prior criminal acts on the property and those which "occurred in close proximity to the defendant's premises"). The brief verbal interaction between plaintiff and Sheehan, even if loud and laced with vulgarities, offers "slim evidence" and did not hint that Sheehan's impatience and argumentativeness might escalate to violence. See Peguero, supra, 439 N.J. Super. at 92.
Watching the video, we observe plaintiff was not alarmed following the verbal exchange, thus Sheehan's attack was unanticipated. The record contains no statements revealing Sheehan was known to store employees because of prior displays of unstable, hostile, or dangerous behavior. Further, no depositions were taken of witnesses, who may have expressed alarm by Sheehan's conduct while in line. Thus, the record does not support plaintiff's claim that the assault was reasonably foreseeable. See Kuzmicz v. Ivy Hill Park Apts., 147 N.J. 510, 517 (1997) (recognizing business owners are under a duty to provide protection from foreseeable injuries).
Following our review, we conclude the evidence of record "does not come close to the sort of proof" necessary to give rise to defendant's duty to act to prevent the attack. Peguero, supra, 439 N.J. Super. at 92-93. A reasonable jury could not conclude Sheehan's criminal conduct was likely to occur. See Clohesy, supra, 149 N.J. at 507.
Briefly addressing plaintiff's challenge to the need for expert testimony to establish duty, we agree "there is no general rule or policy requiring expert testimony as to the standard of care," for premises liability. Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982). "Obviously, such testimony would be an aid to a jury and its use is encouraged in future cases. But its absence is not fatal." Ibid.
Contrary to her assertion, plaintiff's case was not dismissed on summary judgment merely because she did not present an expert. Rather, as we noted above, plaintiff failed to proffer evidence of foreseeability to satisfy defendant's legal duty to intervene after Sheehan's verbal exchange with her.
The judge's comments regarding the need for expert testimony addressed the industry standard of care for security response time, which is a technical matter "so esoteric that jurors of common judgment and experience c[ould not] form a valid judgment as to whether the conduct of [defendant] was reasonable." Butler, supra, 89 N.J. at 283. See also Burroughs v. City of Atlantic city, 234 N.J. Super. 208, 221-22 (App. Div.), certif. denied, 117 N.J. 647 (1989) ("[E]xpert testimony is useful to fact[-]finders in determining whether a standard of conduct has been violated . . . ."). Were this plaintiff's claim, an expert would be required.
We discern no error in granting summary judgment for defendant and dismissing plaintiff's complaint. Further, reconsideration was properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION