Before Judges Petrella, Lintner and Parker. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Numbers L-1445-97 and L-3041-99.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
After the dismissal on summary judgment motions of their complaints in these consolidated matters, plaintiffs Robert Sanchez and Renee Smith appeal the determination of the Law Division Judge that defendants Independent Bus Co. (Independent) and its driver, Pierre A. Dorceus, owed no duty to protect them against an armed passenger's actions, i.e., that of the third party defendant Kaawone Johnson.
On October 21, 1997, plaintiffs Robert Sanchez, his son, Robert E. Sanchez *fn1 and Renee Smith were passengers on board the #31 Independent bus which was leased by defendant Independent, and traveling to Penn Station in Newark. Third party defendants Kaawone Johnson and Karl Smith were also passengers on that bus.
At approximately 9:32 a.m., a man, later identified as Kaawone Johnson, boarded the bus carrying a large radio. *fn2 Johnson sat in a seat toward the back of the bus. Sanchez was standing on the steps adjoining the rear door because there were no seats. Approximately one minute after boarding, Johnson turned his radio on at a loud volume.
Dorceus testified at his deposition that there is a large sign when you board the bus that states that passengers are not permitted to play their radios on the bus. The bus was equipped with a two-way radio, which was not working. If the two-way radio worked, the driver would call his dispatcher for help if there was a problem. When the bus stopped Dorceus asked Johnson to turn the radio off and Johnson complied. Plaintiffs argue that he only turned the volume down. The video tape does not support that argument. In any event, for purposes of this opinion any discrepancy is irrelevant.
Approximately fifteen minutes later the buzzer for Johnson's stop sounded and he stood up and walked toward the rear exit doors of the bus. At that time he turned up the volume on his radio and waited for the bus to come to a stop. Sanchez asked Johnson to turn off his radio, and Johnson ignored him. Dorceus heard the radio come back on, but did not again request that Johnson turn it off.
While waiting, Johnson stepped on the foot of another passenger Karl Smith. *fn3 Smith asked Johnson to apologize for stepping on his foot. Johnson refused to apologize to Smith and they exchanged words. Smith challenged Johnson to a fight, which Johnson accepted. Smith got off the bus and was followed by Johnson. As Johnson was descending the stairs, Smith punched him and, while grabbing Sanchez's clothing, Johnson got back onto the bus. Smith pursued Johnson into the rear of the bus where a physical confrontation occurred. During the confrontation, Johnson pulled out a concealed handgun that he was carrying and shot it multiple times. One of the bullets hit Sanchez.
When Dorceus heard the shots, he ran off the bus, followed by the passengers. Plaintiff, Renee Smith, was injured by fellow passengers as they fled from the bus. Sanchez was rendered a paraplegic from his bullet wounds.
In assessing a motion for summary judgment, the trial judge determines if genuine issues of material fact exist. If none exist the judge determines if the moving party is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Our review on appeal applies the same analysis. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). However, the determination of whether a party has a duty of care, and the scope of such a duty, are questions of law that must be decided by the court. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997). The key to the legal determination that a duty exists is based upon the foreseeability of the risk, the seriousness of the risk, and the "practicality of preventing it." J.S. v. R.T.H., 155 N.J. 330, 339 (1998). 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." Id. at 338 (quoting Clohesy, supra (149 N.J. at 507)). Even if the risk is foreseeable, a legal duty does not necessarily arise. Ivins v. Town Tavern, 335 N.J. Super. 188, 195 (App. Div. 2000). See Lombardo v. Hoag, 269 N.J. Super. 36, 52-53 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994); McIntosh v. Milano, 168 N.J. Super. 466, 483 (Law Div. 1979).
Determining the existence of a duty of care involves identifying, weighing, and balancing several factors, including the relationship of the parties, the nature of the risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. Alloway v. Bradlees, Inc., 157 N.J. 221 (1999). The analysis is fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993) (citation omitted). These factors are considered under the totality of the circumstances. Clohesy, supra (149 N.J. at 508). Reasonableness, public policy, fairness and common sense also must be taken into account when imposing new legal duties. Williamson v. Waldman, 150 N.J. 232, 245-246 (1997).
As a common carrier, Independent would owe a high degree of care for the safety of its passengers so as to avoid dangers that are known or reasonably anticipated. See Lieberman v. Port Authority of New York and New Jersey, 132 N.J. 76, 85 (1993) (citations omitted). By accepting passengers entrusted to their care the carrier undertakes to use great care consistent with the nature of the undertaking. Harpell v. Public Service Coordinated Transport, 20 N.J. 309, 316-317 (1956). See also, Prosser, Law of Torts, (2d ed. 1955) at 119, 147, ...