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Kepler v. Taylor Mills Developers

January 28, 2003

MICHAEL KEPLER AND BRYAN KEPLER, PLAINTIFFS,
v.
TAYLOR MILLS DEVELOPERS, INC., AND/OR N.C.V. DEVELOPERS, INC., TAYLOR MILLS ESTATE, INC., IGUANA BEACH CLUB, INC., TAYLOR'S CORP., MILKBAR, DEFENDANTS-CROSS-CLAIMANTS, APPELLANTS,
v.
GARDEN STATE RACE TRACK, INC., GARDEN STATE RACING ASSOCIATION LIQUIDATION TRUST, CHERRY HILL TOWNSHIP POLICE DEPARTMENT, TOWNSHIP OF CHERRY HILL, ANDREA LEONE AND ANDREW STEWART. DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, CAM-L-2458-99.

Before Judges Newman *fn1 , Parrillo and Landau.

The opinion of the court was delivered by: Landau, J.A.D., retired and temporarily assigned on recall.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically on December 20, 2002

This is an appeal by defendants-cross-claimants, who are together denominated herein as "the Club," from grants of summary judgment to the co-defendants denominated herein as "Cherry Hill" and "Garden State", *fn2 on the Club's cross-claims in an action commenced by plaintiffs Michael Kepler and Brian Kepler. Summary judgments were granted to Cherry Hill and Garden State against the plaintiffs, who have since settled with the Club and have not appealed from those judgments.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs were patrons at a Cherry Hill nightclub known as the Iguana Beach Club during the early morning hours of April 12, 1997. They had parked in an area on premises of defendant Garden State, located three to four hundred yards from the Club, that served as an additional parking facility pursuant to a license agreement between the Club and Garden State. The license provided for monthly payments to Garden State by the Club, in return for which Club patrons were permitted to use that parking lot. Garden State agreed to keep the lot illuminated from dusk until 4:00 A.M. The Club agreed to indemnify Garden State against claims arising out of use of the lot by its patrons.

Plaintiffs were injured when a conversation they were having with several other men turned into an argument and then erupted into a fight that resulted in the complained-of injuries. The incident occurred at the Garden State parking area as plaintiffs were returning to their car. Plaintiffs said it began and ended in a very short period of time; "real short," "maybe a minute."

The Club had an arrangement with the Police Department of Cherry Hill Township (the Department) for the posting of a security detail, usually consisting of two officers *fn3 "at The Iguana Beach Club," generally for about four hours during late night and early morning periods on most days of the week.

Indoor security was maintained by the Club. The Club reimbursed the Department, which paid the assigned officers' respective overtime charges as reflected in a letter from the Department to the Club. Officers' participation was voluntary, and assignments to the Club detail were made by the Department pursuant to a rotating schedule of officers interested in such overtime duty.

The officers' presence was ordinarily established in a marked patrol car outside of the Club, although there was testimony that a closing sweep of the Garden State lot was made by some officers at the end of a tour. Two Club employees certified that they "understood" that the Cherry Hill Police Department provided security for the entire parking area, inclusive of the Garden State lot, and not just the front of the Club.

Defendants, Officers Leone and Stewart, were detailed to the Club on April 12, 1997. They responded immediately in their patrol car to the Garden State lot upon receiving a police radio call respecting the subject incident. Other Cherry Hill officers and an ambulance responded shortly thereafter.

Plaintiffs' amended complaint joined the Club defendants, the Garden State defendants, and the Cherry Hill defendants, alleging various breaches of duty. The Club cross-claimed against Garden State and Cherry Hill, alleging not only breaches of duty but, as to Cherry Hill, a breach of the "agreement" between its Police Department and the Club.

On Garden State's motion, summary judgment in its favor was entered on March 2, 2001, dismissing with prejudice plaintiffs' complaint and any and all cross-claims. On May 30, 2001, an order was entered granting summary judgment to the Cherry Hill defendants and dismissing plaintiffs' complaint against them. While there was no specific mention of the Club's cross-claim, the briefs demonstrate that all defendants contemplated that ...


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