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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...