June 5, 2007
MARK THOMPSON, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
GARDEN STATE ARTS CENTER, PARTNERS, D/B/A PNC BANK ARTS CENTER, A PARTNERSHIP, PNC BANK ARTS CENTER, SFX FAMILY ENTERTAINMENT OF NEW JERSEY, INC., A NEW JERSEY CORPORATION, SETH REHFUSS, DEFENDANTS-RESPONDENTS, AND ULTIMATE SERVICES, INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MONL-3218-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2007
Before Judges Cuff, Winkelstein and Baxter.
Plaintiff, Mark Thompson, was injured after being punched in the face by defendant Seth Rehfuss at a Kid Rock concert at the PNC Arts Center. He sued Rehfuss, the companies that owned and operated the Arts Center (the PNC defendants), and Ultimate Services, Inc., the firm that provided security at the event. By order of February 20, 2004, Judge Perri granted summary judgment, dismissing the complaint as to all defendants except Rehfuss. On October 20, 2005, an arbitrator found Rehfuss 100 percent liable for plaintiff's injuries and awarded plaintiff $350,000. By Order of January 20, 2006, the court, on plaintiff's motion, confirmed the arbitration award.
On appeal to this court, plaintiff challenges the summary judgment dismissing the PNC defendants and the security firm. Ultimate Services cross-appeals, claiming that because, on plaintiff's motion, the trial court confirmed the arbitration award, plaintiff is precluded from appealing from the adverse summary judgment order. Ultimate Services also claims that because plaintiff did not timely move for confirmation of the arbitration award, plaintiff's appeal is untimely.
We affirm Judge Perri's dismissal of plaintiff's complaint against the PNC defendants and the security firm. Consequently, we do not address the issues presented by Ultimate Services' cross-appeal, and dismiss it as moot.
Thompson and his friends attended the concert at the PNC Arts Center in Holmdel on August 11, 2000. Rehfuss was there with his friends Jeffrey and Matthew Wallen. A "mosh pit"*fn1 formed near the area where plaintiff was situated and he was forced to move several times. Though plaintiff did not enter the pit, he observed people within getting hit and injured. He saw ten or fifteen security guards approximately fifteen to twenty feet from where he was situated, but they did not disperse the mosh pit.
According to plaintiff, he first observed Rehfuss about five to ten minutes before Rehfuss punched him. Rehfuss was standing approximately fifteen feet away with Jeffrey Wallen. Plaintiff noticed them because, at that time, Wallen shoved plaintiff's girlfriend, Amy Fatcheric, causing her to fall to the ground. Plaintiff was not sure if Wallen was in the mosh pit at the time.
Plaintiff claims he then approached Wallen, and asked him, in a non-threatening manner, if everything was "all right"; in an equally non-threatening manner, Wallen responded, "[e]verything's fine." It was plaintiff's impression that the shove had been intentional because Wallen stepped forward before striking Fatcheric. Plaintiff later testified, however, that the push could have been an accident. Fatcheric also believed that it was accidental; however, she recalled that she may have "instinctively" shoved Wallen back. Rehfuss was standing next to Wallen during plaintiff's conversation with Wallen, but plaintiff and Rehfuss did not speak to each other.
Plaintiff asserts that after five to ten minutes had passed with no additional contact between plaintiff and either Wallen or Rehfuss, he felt a tap on his shoulder. When he turned, Rehfuss hit him. The incident did not occur in the mosh pit.
Rehfuss testified that the contact between the two sets of concertgoers began when he and Jeffrey Wallen had a brief conversation with Fatcheric. A few minutes later, he noticed plaintiff, who looked upset, leave the pit quickly and speak with Fatcheric. Fatcheric then walked "very fast" into the pit, approached Wallen and "crack[ed] Jeff right in the face with [her] fist." About thirty seconds later, Rehfuss saw plaintiff, Fatcheric, and another friend, "laughing and high-fiving each other." He then walked over to plaintiff and tapped him on the shoulder. When plaintiff turned around, Rehfuss said "[r]eal tough guy having your girl fight your battles for you," and punched plaintiff in the face. He claimed that approximately a minute had passed between the time that Fatcheric hit Wallen and the time that he began walking toward plaintiff.
Plaintiff submitted an expert's report as to liability. The report criticized defendants for failing "to employ a pro-active moshing plan." The report did not criticize defendants for a lack of security personnel.
The motion judge found that prior to Rehfuss punching plaintiff, the confrontation between plaintiff and Rehfuss's friend involved the two of them speaking "in reasonable voices [with] the plaintiff then mov[ing] away." The court found no indication in the record that Rehfuss had caused a commotion before attacking the plaintiff. Whether he did anything that reasonably would have drawn the attention of the security personnel to him. The entire incident happened very quickly.
. . . There's no information to indicate that [the security firm] was alerted to any problems between these individuals before the attack. . . . .
. . . Warning that a mosh pit existed would seem to have served no purpose whatsoever.
[T]he activities of the mosh pit were not an efficient cause or proximate cause of the plaintiff's injury. The cause of plaintiff's injury was one punch from Mr. Rehfuss.
The security guards hired to provide protection during the concert could not have reasonably anticipated Rehfuss's actions under the facts of this case where there were no [aberrant] gestures or actions that would have alerted them to a situation that required intervention. All the parties acknowledged that there were security guards present at the site[.] . . . [P]laintiff alleges basically without any support that the number of security guards were inadequate.
He doesn't say how many would be adequate. According to Mr. Rehfuss there was nothing anyone could have done to prevent him from striking the plaintiff because the whole incident happened too fast.
A negligence cause of action has three essential elements:
(1) a duty of care owed by a defendant to a plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the defendant's breach. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). Whether a duty exists and what the scope of that duty is are normally questions of law. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997). On the other hand, the question of breach of duty is generally a jury question, Arvanitis v. Hios, 307 N.J. Super. 577, 582 (App. Div. 1998), although summary judgment is appropriate as to that issue where the court is "satisfied a rational fact finder could not conclude defendant breached [his or] her duty of care." Endre, supra, 300 N.J. Super. at 143.
As part of their duty, business owners, such as the PNC defendants, have a duty to protect patrons from the "foreseeable" criminal acts of third parties occurring on their premises, the scope of which may include providing security guards. Clohesy, supra, 149 N.J. at 504, 517. The issue here is not whether the PNC defendants owed a duty to plaintiff - they did - but whether the record supports the motion judge's decision that, as a matter of law, they did not breach that duty.
As to the security firm, though no New Jersey case discusses the duty of a security services provider, we see no reason not to apply traditional negligence principles in such a context. Whether a duty should be imposed requires consideration of the nature of the underlying risk of harm, that is, its "foreseeability" and severity; the opportunity and ability to exercise care to prevent the harm; the comparative interests of, and the relationships between or among, the parties; and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution. J.S. v. R.T.H., 155 N.J. 330, 337 (1998). There is no question that Ultimate Services like the PNC defendants, owed a duty to concert invitees, such as plaintiff. The question that we are asked to decide is whether, as a matter of law, the record supports the motion judge's decision that it did not breach its duty.
The trial court also found a lack of proximate cause between the actions of the PNC defendants and Ultimate Services and plaintiff's injuries. Issues of proximate cause are also generally considered jury questions. Garrison v. Twp. of Middletown, 154 N.J. 282, 308 (1998) (Stein, J., concurring). Nevertheless, the issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence; the plaintiff must introduce evidence that affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the plaintiff's injury. Davidson v. Slater, 189 N.J. 166, 185 (2007). Thus, where a plaintiff is unable to put forth at the summary judgment stage any evidence that the defendant proximately caused the plaintiff's injuries, summary judgment is appropriate. Said another way, summary judgment is appropriate where "no reasonable jury could find that the plaintiff's injuries [have been] proximately caused by the" defendant's conduct. Vega v. Piedilato, 154 N.J. 496, 509 (1998); see also Davidson, supra, 189 N.J. at 188 (trial court was capable of being the arbiter of "whether a genuine issue of proximate cause had been presented"); Fluehr v. City of Cape May, 159 N.J. 532, 543 (1999) (noting that "[p]roximate cause . . . may be removed from the factfinder in the highly extraordinary case in which reasonable minds could not differ on whether that issue has been established" and "conclud[ing] that as a matter of law, any negligence [there] . . . did not proximately cause plaintiff's injuries" (citing Vega, supra, 154 N.J. at 509)).
Based on the record before the trial court, we agree with Judge Perri that summary judgment was warranted. The material facts were not in dispute and the evidence was so one-sided that defendants were entitled to prevail as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). No reasonable jury could infer that either the security firm or the PNC defendants breached a duty of care to plaintiff, or that their actions were a proximate cause of plaintiff's injuries. When only one inference can be drawn from the facts, summary judgment is appropriate. See id. at 536, 540.
While plaintiff repeatedly references the events surrounding the mosh pit, and points to the failure of security to disperse the mosh pit as leading to the assault, the attack did not occur in the mosh pit. Though the initial contact between plaintiff's girlfriend and Rehfuss's friend may have occurred there, following that confrontation, the parties separated from each other. The attack on plaintiff was both physically and temporally separate from the initial contact between plaintiff's girlfriend and Rehfuss's friend.
Plaintiff also claims in alleging the existence of disputed material facts, that the parties disagree as to what color shirts the security personnel were wearing, blue or yellow, and that there were an insufficient number of security guards present. First, the color of the shirts of the security personnel is not material to the issue of whether security personnel were in a position to anticipate and stop Rehfuss's attack on plaintiff. Second, Rehfuss testified at his deposition that there was "absolutely" nothing security could have done to prevent him from hitting plaintiff. Furthermore, plaintiff's expert did not criticize the number of security personnel present, or indicate how many more security guards would have been needed to have prevented Rehfuss's assault on plaintiff. The trial court properly concluded that reasonable minds could not differ - nothing would have alerted the security staff of Rehfuss's anticipated attack on plaintiff; and, no matter how many security guards were present, the incident occurred so suddenly that the security personnel could not have prevented it.
The attack did not happen immediately after the initial contact between plaintiff and/or his girlfriend and Wallen; no continuing course of conduct or gradual escalation would have alerted the security personnel that Rehfuss intended to attack plaintiff. No words were exchanged. Rehfuss attacked plaintiff without warning. As the motion judge said, the facts simply do not support plaintiff's allegations that the attack could have been prevented by additional security or that the extant security personnel were in a position to prevent the harm.
Consequently, we affirm substantially for the reasons expressed by Judge Perri in her well-reasoned oral decision. We dismiss the cross-appeal as moot.