On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-5247-98.
Before Judges Pressler,*fn1 Parker and R. B. Coleman.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this civil action arising out of a physical assault at a mall, the jury returned a unanimous verdict in favor of plaintiff Jeanna Waldron in the amount of $25,000, apportioning sixty percent against her assailant, defendant Terrane A. Johnson and forty percent against defendant Monmouth Mall.*fn2 Plaintiff was found not to have been at fault. Plaintiff appeals, however, from orders denying her request that the court mold the apportioned jury verdict to a judgment providing for joint and several liability. In effect, she sought to require the Mall to pay the entire damage award. She also appeals from the court's refusal to calculate prejudgment interest using the two percent enhanced rate applicable to judgments that exceed the monetary limit of the Special Civil Part at the time of entry, as specified in R. 4:42-11(a)(iii) and R. 4:42-11(b). We affirm the denial of plaintiff's application for joint and several liability. We reverse the portions of the orders calculating prejudgment interest and remand for a corrected judgment.
The assault occurred on March 6, 1997. Plaintiff was standing in line with her son at an ATM machine in the Monmouth Mall. Defendant Johnson, who was behind her, became impatient and tried to cut in front of plaintiff. The two got into an argument which resulted in Johnson grabbing plaintiff by the arm, pushing her and eventually knocking her to the ground. When plaintiff was on the ground, Johnson continued to punch her and slam her head against the floor. Although the duration of this altercation was disputed, Mall security officers were slow to respond. A passerby intervened and stopped the assault. Plaintiff was taken to the Monmouth Medical Center, where she was treated and subsequently underwent two surgeries.
Plaintiff contends the Mall's failure to provide adequate security to prevent the assault brings this case within an exception that should preclude apportionment of fault. See, e.g., Blazovic v. Andrich, 124 N.J. 90, 111 (1991) and Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 286-87 (App. Div. 2001). She, therefore, argues this case should be treated as an exception to the provision of the New Jersey Comparative Negligence Act, which declares that a joint tortfeasor is only jointly and severally liable for an entire verdict when that tortfeasor is adjudicated sixty percent or more at fault for the injury. N.J.S.A. 2A:15-5.3a. Neither Blazovic nor Martin supports the result urged by plaintiff. Although Blazovic and Martin both recognized that there may be certain instances where a breach of a duty to prevent specific misconduct of another may preclude apportionment of fault, both cases expressly rejected, as a matter of law, the applicability of such an exception under circumstances comparable to those presented in this case.
In Blazovic, plaintiff became involved in a verbal dispute with five individuals that escalated into a physical altercation in the parking lot of a restaurant. Blazovic, supra, 124 N.J. at 93. Plaintiff settled with the individual tortfeasors and the trial judge declined to allow the jury to compare their intentional conduct with the allegedly negligent conduct of plaintiff and the restaurant. Id. at 94. Thus, the jury solely apportioned fault between plaintiff for instigating the altercation and the restaurant for not having sufficient lighting and security in the parking lot. Ibid. The trial court then molded the verdict, reducing the recovery to reflect plaintiff's thirty percent fault and dividing the balance on a pro rata basis between the restaurant and four of the individual assailants. Id. at 94-5.
On appeal, we modified that judgment. Id. at 95. Thereafter, the Supreme Court agreed with our holding that the jury verdict was incomplete because of its failure to take into consideration the fault of the intentional tortfeasors. The Court stated"we reject the concept that intentional conduct is'different in kind' from both negligence and wanton and willful conduct, and consequently cannot be compared with them. [Indeed], we view intentional wrongdoing as'different in degree' from either negligence or wanton and willful conduct." Blazovic v. Andrich, supra, 124 N.J. at 107. The Court continued:
Thus, consistent with the evolution of comparative negligence and joint-tortfeasor liability in this state, we hold that responsibility for a plaintiff's claimed injury is to be apportioned according to each party's relative degree of fault, including the fault attributable to an intentional tortfeasor. [Ibid.]
Based on the record in Blazovic, the Supreme Court reasoned that the incident was neither sufficiently foreseeable nor was the causal relationship adequately connected to the plaintiff's negligence to justify imposing the entire liability on the restaurant. Id. at 112.
In Martin, plaintiff, who was sexually assaulted in the defendant's hotel, sued her assailant and the hotel; the hotel then filed a cross-claim against the assailant. Martin v. Prime Hospitality Corporation, supra, 345 N.J. Super. at 280. The assailant defaulted, and the trial court submitted the case to the jury solely on the issue of whether the hotel was negligent in failing to provide sufficient security for the safety of the defendant. Id. at 284. We reversed, holding that the hotel's duty of care did not encompass an obligation to prevent the sexual assault. Id. at 292. We emphasized that under current law"when a plaintiff claims injury from an intentional tort caused by negligent security or supervision, the jury must apportion fault between the negligent and intentional tortfeasors." Id. at 286. We noted further that the sexual assault was neither sufficiently foreseeable nor sufficiently related to the hotel's alleged fault to justify imposing responsibility for all of the plaintiff's injuries.
Likewise in this case, Johnson's attack upon the plaintiff was not so foreseeable nor did it bear such a close causal connection to the Mall's slow response to the melee that it should justify imposing upon the Mall the entire responsibility for plaintiff's injuries. See Clohesy v. Food Circus Supermkts., 149 N.J. 496, 502-03 (1997) (explaining the distinction between foreseeability as it affects duty and as it affects proximate causation). A business such as a mall cannot reasonably be expected to prevent every assault. Here, the record does not disclose a single incident at the ATM before the subject altercation, which might have elevated the general duty of the Mall to provide security to a specific duty geared to that precise location. The Mall had no actual notice that the particular assault was impending. The argument between plaintiff and Johnson began when plaintiff stood her ground, refusing to permit Johnson to use the ATM machine ahead of her. Through her expert's testimony, plaintiff established to the jury's satisfaction that the Mall's response time was slow and that, overall, its security was lax or deficient; but plaintiff's injury was no more foreseeable or ...