Before Judges Skillman and Conley.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Camden County.
Plaintiff was injured in a fight in defendant Town Tavern's parking lot. At the close of plaintiff's case during his personal injury trial, the judge granted defendant's motion for involuntary dismissal pursuant to R. 4:37-2(b). Plaintiff appeals, contending that, accepting as true all of the evidence favorable to him, reasonable jurors could conclude that defendant breached its duty of care to provide a safe premises for its patrons. In granting the motion for involuntary dismissal, the trial judge disagreed. So do we.
Plaintiff's complaint was premised upon the well-established principle that the proprietor of business premises owes a duty to patrons "to provide a reasonably safe place to do that which is within the scope of the invitation." Failure to so provide can form a basis for a negligence claim by an injured patron. E.g., Butler v. Acme Mkts., Inc., 89 N.J. 270, 275-76 (1982); Cassanello v. Luddy, 302 N.J. Super. 267, 271 (App. Div. 1997). In attempting to prove his claim of negligence, plaintiff established the following facts.
On Friday evening, June 14, 1996, plaintiff and his fiancé were at the Town Tavern having a drink with several friends, one of whom was Randy Cravens. Cravens and another patron of the tavern that night, Mike Bordner, were not friendly with each other, as Bordner was having an affair with Craven's wife. According to plaintiff, the friction between the two was "general knowledge." Moreover, the manager of the tavern had, several months prior, ejected Bordner from the tavern because he "heard through the customers [that Bordner] was at [another bar] and kicked the hell out of somebody." Bordner was thereafter allowed to again patronize the tavern after he agreed that he would not "start trouble." The manager, however, warned the bartenders to keep an eye on Bordner, to serve him only so long as he "behaves," and "[i]f he does anything wrong . . . throw his ass out." On this particular night, Cravens and Bordner, after leaving the tavern, engaged in a fight in its parking lot, into which plaintiff attempted to intercede to save his friend from harm, only to be injured himself.
We pause at this point to observe the comment in Cassanello v. Luddy, supra, 302 N.J. Super. at 274-75, that "[t]averns are natural hot beds of violence." As to this particular defendant tavern, however, the record does not so reflect. This is not to say there was no evidence of fighting or assaults in or outside the premises prior to June 14, 1996. Plaintiff did present some evidence as to that. But what it shows does not warrant a characterization of the tavern as a "hot bed of violence."
That evidence, depicting five reports of "fight/assaults" during 1995 and 1996 prior to June 14, is as follows. On April 28, 1996, at 2:42 a.m., there was call to the police reporting a fight/assault at the tavern. When the police arrived, they found nothing untoward and classified the call as a "10-35" or "unfounded." Where on the premises the alleged incident occurred, who made the call and who was involved was not known. On April 14, 1996, at 2:03 a.m., police responded to a call reporting a fight/assault in the tavern's parking lot. Upon arrival, they found nothing untoward and the call was classified as unfounded. Who made the call and who was involved was not known. On April 8, 1996, at 2:15 a.m., the police responded to a call reporting a fight/assault in the tavern's parking lot. The police report of the incident stated "fight in lot; subject drunk." Nothing else about the incident or who made the call was known. On February 8, 1996, at 11:15 p.m., police responded to a call reporting a fight/assault at the tavern. Upon arrival nothing untoward was observed and the call was classified as unfounded. Where on the premises the alleged incident occurred, who was involved, and who made the call was unknown. Finally, on September 16 or 17, 1995, at 11:40 p.m. the police responded to a call reporting a fight/assault inside the tavern. Upon arrival, they observed a fight between intoxicated patrons over a pool game. The fight was broken up, but no complaint was signed by the parties involved. *fn1
It was plaintiff's claim that these prior incidents were sufficient to place defendant on notice such that its duty of care to its patrons obligated it to provide a security guard or bouncer in the parking lot. The trial judge remarked, however, I don't think that these five incidences, either individually or taken as a whole, are sufficient to put the defendant on . . . such notice that he should have a guard or someone controlling the parking lot during the day or early evenings. These all occurred late at night. We don't know who called the police. We don't know the nature or extent of the [incident] . . . and I don't think that a reasonable jury can conclude that these five events, occurring over a period of a year and a half, would require a reasonable tavern owner to post guard in the parking lot because that's the only way an event such as this will be prevented.
As to the particular circumstances inside the tavern prior to the fight and while plaintiff was there, the record reveals the following. There were two employees at the bar, one of whom had worked there for over a year and who had, on occasions of patron misbehavior, "flagged" and/or ejected patrons. There were no other employees, bouncers or security guards either inside or in the parking lot of the tavern. However, the attendant circumstances were not out of the ordinary or suggestive of a potential problem such that the absence of bouncers or security guards might be questioned. Indeed, during cross-examination of plaintiff, he described the atmosphere inside the tavern thusly:
Q. Mr. Ivins, you had no problems with anybody in the bar that evening, right?
Q. Okay. As a matter of fact, you didn't see any fights in the bar ...