March 31, 2008
JOSEPH SILERTO, DIANA MENDOZA, AND SHEYLA P. IBAZETA, PLAINTIFFS,
394 ST. PAUL'S AVENUE CORP. T/A FOXES, SAMY SHAKER, AND CLARENDON NATIONAL INSURANCE COMPANY, DEFENDANTS, AND LAKEISHA MIXSON, AS NOMINAL DEFENDANT AS TO THE DECLARATORY JUDGMENT COUNT ONLY, DEFENDANT.
LAKEISHA MIXSON, PLAINTIFF-APPELLANT,
394 ST. PAUL'S AVENUE CORPORATION D/B/A FOXES DANCE CLUB, DEFENDANT-RESPONDENT, AND EMC REALTY CORPORATION AND TANETTA HALL, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-6018-06 and L-8511-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2008
Before Judges Lintner and Sabatino.
Plaintiff, Lakeisha Mixson, appeals from a judgment of no cause for action following a bench trial and a subsequent order entered by the trial judge denying her motions for reconsideration, new trial, and additur. On appeal, plaintiff asserts that the trial judge misapplied the law in arriving at his factual findings and that she is entitled to damages, notwithstanding the judge's decision, because defendant's insurance carrier deposited its policy limits with the court prior to trial. We reject both contentions and affirm.
Plaintiff was injured on May 23, 2002, when she was attacked from behind by defendant Tanetta Hall while in the process of leaving a Jersey City nightclub known as "Foxes" and owned by defendant 394 St. Paul's Avenue Corporation.*fn1 During the attack, Hall cut plaintiff's wrist with a box cutter. Plaintiff instituted a Law Division suit for personal injuries against Hall and defendant in Hudson County.*fn2
On November 30, 2001, Joseph Silerto and Diana Mendoza were assaulted by a number of individuals who had congregated in the Foxes' parking lot after closing. They filed a Law Division complaint in Middlesex County against defendant.*fn3 While both cases were pending, defendant moved in the Middlesex action, on the part of its liability insurance carrier, to deposit the liability policy limits into court, reciting the pendency of plaintiff's suit in Hudson County. In support of the motion, defendant's counsel certified that, under the assault and battery endorsement, the aggregate limits for occurrences between November 19, 2001, and September 28, 2002, amounted to $100,000. Counsel advised:
While maintaining that the incidents were not the fault of [defendant], and also disputing plaintiffs' claims, nevertheless the defendant's insurance carrier and this defendant have offered the $100,000 policy limits to settle all claims by plaintiffs . . . Silerto and . . . Mendoza . . . and the claim brought by . . . Mixson, which offers have yet to be accepted. (emphasis added).
A Law Division judge in Middlesex County granted defendant's motion and the insurance carrier's limits were deposited with the clerk of the court. Thereafter, in a declaratory judgment action brought by Silerto and Mendoza, in which plaintiff was named as a defendant, the Law Division judge found that the applicable aggregate policy limits for both actions was $100,000.*fn4 Plaintiff's Hudson County action was then consolidated with Silerto and Mendoza's complaint and transferred to Middlesex County for trial.
Prior to the commencement of trial, the following stipulation was placed on the record by Silerto's counsel.
We've . . . agreed by stipulation so we're absolutely clear that one of the many reasons we're doing a bench trial and proceeding in this fashion is that given the court's prior rulings with respect to the aggregate amount of insurance in this case, the parties have agreed that damages sought in this case are capped at $100,000.
The [c]court is here to hopefully make a determination that -- to get past liability on the issue of damages, but damages are capped at a hundred thousand dollars with respect to the corporate entity 394 St. Paul's Avenue Corporation trading as Foxes.
Acknowledging his understanding of counsel's agreement, the judge stated the following prior to the presentation of the first witness:
We are here having a bench trial concerning both of these matters; that is the Middlesex County matter and the Hudson County matter, which has been also filed in Middlesex or transferred in Middlesex before disposition as to the issues concerning the liability and any damages which may be awarded against [defendant] . . . .
So we're prepared to take that testimony this morning. As I understand it, further, counsel have stipulated that only the plaintiffs in this matter will testify and that they will submit and make use of other documents such as reports, medical reports and other types of expert reports during the course of this trial.
I indicated to counsel that when the testimony is complete in lieu of closing remarks or summations, the attorneys will submit to the [c]court within fifteen days after the conclusion of the trial a proposed findings of facts and conclusions of law for the [c]court's consideration prior to making its decision.
Counsel for Silerto added that he would also be permitted to call Ibazeta as a liability witness. Silerto was then called as the first witness. The trial took place over a two-day period. The trial judge issued his written decision and order, finding no cause for action as to plaintiff, determining defendant liable to Silerto and Mendoza, and assessing damages in the amounts of $57,154.43 and $12,500 respectively.
We limit our rendition of the evidence to that bearing on the issue of defendant's liability to plaintiff. Defendant owns and operates Foxes, located on St. Paul's Avenue in Jersey City. Plaintiff arrived at Foxes with three friends, Jaki Morris, Ebony Grant, and Sakeisha Maxwell, at approximately 12:45 a.m. She entered the front door and paid a $15 cover charge. There, she observed three individuals wearing black shirts with the word "security" emblazoned across the front in white lettering. Plaintiff passed through a metal detector and one of the security guards searched her purse and patted her down. She then passed through a magnetometer and the process was repeated by another security guard.
She described the scene on the first floor as "crowded, but it was nice . . . [because] you didn't have to squeeze, saying excuse me every time you turned around." She did not immediately purchase a drink. She admitted, however, to consuming one Coors beer while at the club.
At one point, while on the dance floor, plaintiff observed a fight between two men in which one of the men knocked the other to the ground, after which the man on the ground got up and punched his assailant. Individuals on the dance floor, rather than the club's security personnel, broke up the fight. During and after the fight, the music continued playing, the lights were not turned on, and no announcement was made instructing the club-goers to exit the club.
Approximately one to one-and-one-half hours after her arrival, plaintiff heard the deejay announce last call. She headed toward a side exit, where it was "crowded" because all of the patrons had formed a line to exit. There were two security personnel standing in the vicinity, approximately twenty feet from the side exit. Plaintiff testified that those security guards were not ushering people out the side door, rather they were talking with the bartender.
As she was standing in line waiting to exit, plaintiff "felt a tap on [her] head." When she did not respond, she felt another tap and turned around but could not see who tapped her. She then felt another tap, which she described as "somebody really trying to grab me from my head." With her jacket in her hand, plaintiff turned and saw a woman reaching over another patron with what she described as "a silver thing" and "a shiny reflective thing." Although she attempted to shield herself with her jacket, the woman pulled her out of the line by her hair. The woman pulled plaintiff's hair and was "trying to cut [her]." Plaintiff told the woman, "get off of me . . . [and] let me go." Plaintiff's friends implored the woman to let her go. Plaintiff claimed she swung at and possibly punched the woman during the altercation. Plaintiff also stated that "kicking and screaming and swinging" were involved in the fight and that she believed that she won the fight.
Plaintiff recognized her attacker as defendant Hall, with whom she had an altercation three months earlier at another Jersey City bar, The Pit Stop. At The Pit Stop, Hall hit plaintiff in the face with a beer bottle, leaving her with a scar.
Plaintiff asserted that at Foxes she and Hall tussled for anywhere from seven to twenty minutes without any security personnel responding to stop the altercation. After about five minutes, plaintiff claimed she felt a stinging sensation, which she compared to pouring alcohol on oneself. Finally, some people who were on the line to exit came over and got Hall off her. According to plaintiff, with the lights dimly lit and the music playing, the security guards were unable to hear her, and other patrons' calls for help. She claimed a bouncer did not walk toward her until after the fight had ended.
At no point while at Foxes did plaintiff alert the club's security personnel that Hall was at the club and might be looking to fight with her. Plaintiff testified on direct examination that she stood on the dance floor for approximately three minutes, not wanting to go back on the exit line. Nobody from the club approached her, nor did they try to stop Hall. She then stood in front of the club for twenty minutes, during which time no club employees approached her.
On cross-examination, plaintiff was confronted with the following answer to interrogatories and asked whether "it was right or wrong." "Tanetta Hall grabbed my hair from behind, pulled out a box cutter and sliced my right wrist/forearm. A bouncer from Foxes finally came over and grabbed . . . Hall away from me." She responded: "No. He came over there to the altercation. He never came to me nor her. That's how she got away." When asked again whether her interrogatory answer was wrong, plaintiff replied, "He probably did grab her. He came, but I know he didn't come to me." Plaintiff was also confronted with her deposition testimony that "I got cut, like it was right away."
Following the attack, plaintiff approached a police officer outside the club, pointing Hall out. The officer told her she needed to go to the hospital, and did not attempt to pursue Hall. Maxwell drove plaintiff to Jersey City Medical Center. At 6:00 a.m. that morning, she underwent surgery to her right wrist for tendon repairs, leaving her with a permanent scar.
Plaintiff filed a police report, stating that her attacker "pulled her by her hair, then pulled out a razor cutting [her] right wrist." She informed the police that she was able to identify the woman, having seen her face during the attack at Foxes, as well as three months earlier at The Pit Stop. She identified Hall from a mug shot.
Plaintiff introduced an expert report prepared by Leslie Cole, Sr. Cole asserted that because the guards did not find the box cutter on Hall, they were not consistent in their application of security protocol and defendant did not live up to its affirmative duty to protect its patrons. He wrote that he "would not be surprised if the bouncers on duty on that morning were not provided with a written security plan." He believed that the bouncers failed to take "proactive measures," because they were not "adequately trained." Cole opined that there was inadequate manpower and that Foxes should have been equipped with a closed circuit television system.
Cole recounted that, between January 1998 and May 2002, the Jersey City Police responded to Foxes fifty-one times "rang[ing] from aggravated assaults to armed robbery, from unlawful possession of a weapon to resisting arrest." Cole maintained that, had defendant's security been "hardened or enhanced," the assault on the plaintiff would have been prevented. He also opined that the security was "lax and nonexistent." Cole concluded "that there were causal connections between the breach of the defendant['s] duty and the assault[,] . . . that these deviations . . . were the direct and proximate causes of the assault . . . [and] the incident was both foreseeable and preventable."
We first address plaintiff's Point Two argument, that the judge erred by misapplying the law in rendering his factual findings as to defendant's liability. In reaching his decision, the judge framed the important issue to be determined as "the foreseeability of the acts of Hall." He observed that during the time plaintiff and Hall were at the club there was no indication of trouble between them. Although noting plaintiff's assertion that the altercation lasted several minutes, the judge pointed out the discrepancies between the statement plaintiff gave to the police and her trial testimony. He found that it was undisputed that Hall's actions were sudden, intentional, and without warning. He found that the fact that there had been another altercation earlier that evening did not in and of itself automatically impose liability. He rejected plaintiff's expert opinion respecting the adequacy of the club's security, pointing out that "[e]ven with more stringent security standards, a patron could easily obtain a sharp instrument and attack another patron suddenly and before any bouncers would be aware of what was going on." He found that defendant "satisfied its duty to [plaintiff] by having bouncers in place for the general safety of the patrons." He commented that his decision would be different if plaintiff "had notified [defendant] that another patron would try to attack her or if there were a reasonable period of time where it was clear that an altercation between [plaintiff] and Hall was about to ensue."
Plaintiff maintains that the judge should have given more credence to her expert's opinion because it was uncontested. She claims that Cole's report set forth numerous factors including some fifty-one previous crimes and the lack of implementation of a plan "to properly identify and neutralize problematic patrons" despite the presence of guards, who Cole opined were inadequately trained. She maintains that the type of clientele and the large crowd also established foreseeability. She also asserts that she proved proximate cause, arguing that had the box cutter been discovered or the guards been properly trained her injuries would have been prevented.
Initially, we note that a fact finder "has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary." Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985). This is especially true here, where the bulk of Cole's opinion was conclusory without any factual explanation causally connecting the acts complained of to the injury suffered. See Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
"Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). Although, historically, a landowner's duty to a person on his or her land was determined by that person's right to be on the land, id. at 433, the law now favors "a general tort obligation to exercise reasonable care against foreseeable harm to others." Butler v. Acme Markets, Inc., 89 N.J. 270, 277 (1982).
"[B]usiness owners . . . have a duty to protect patrons . . . from foreseeable criminal acts of third parties occurring on their premises." Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 504 (1997). "The duty owed [by a possessor of land] requires the possessor . . . to exercise ordinary care to protect invitees from potential injury inflicted by individuals that the landowner could have reasonably foreseen might be present on the premises." Id. at 516-17 (stating that the scope of this duty may include provision of security guards). "'If the place or character of [a land possessor's] business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.'" Id. at 507 (quoting Restatement (Second) of Torts § 344 comment f (1965)).
"[W]hat precise actions that [a business owner's] duty of care may require under the attendant circumstances . . . is for the court to decide." Ivins v. Town Tavern, 335 N.J. Super. 188, 194 (App. Div. 2000). The court should consider the totality of the circumstances, including: "(1) the relationship of the parties; (2) the nature of the attendant risk; (3) the ability and opportunity to exercise control; (4) the public interest in the proposed solution; [and] (5) the objective foreseeability of harm." Ibid. (citing Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999)). Other factors to be considered include "all prior criminal incidents occurring on the landowner's premises and adjacent properties, whether similar or not, as well as other types of evidence such as the nature, location, condition, and the architectural design of the landowner's property." Clohesy, supra, 149 N.J. at 509.
The trial judge properly determined that defendant owed plaintiff a duty. The imposition of the duty of care was fairly based upon the number of incidents on the premises requiring police response, a clientele known to attract and initiate unlawful or disruptive conduct, and the nature of a dance club where alcohol is served. Where a business owner owes a duty to patrons, fulfillment of that duty requires the business owner "to employ 'reasonable' safety precautions." Kuehn v. Pub Zone, 364 N.J. Super. 301, 314 (App. Div. 2003) (quoting J.S. v. R.T.H., 155 N.J. 330, 339 (1998)), certif. denied sub nom., Kuehn v. Kekoulas, 178 N.J. 454 (2004) ; see also Butler, supra, 89 N.J. at 279 (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 605-06 (1962)) (stating that a business owner's duty is "'to take reasonable precautions'"). The judge essentially found that defendant satisfied that duty by employing security personnel and requiring patrons to pass through a metal detector, thus guarding against the type of conduct reasonably anticipated given the foreseeable harm that might occur on its premises.
Contrary to plaintiff's argument, the judge did not apply the abolished "prior similar incidents" test, but rather based his findings on the appropriate "totality of the circumstances" test. A business owner will be held liable where there exists "sufficient information to apprise the proprietor of the existence of danger and enough time to act on behalf of the patron's safety." Ventresco v. Gokvlesh Convenience, Inc., 318 N.J. Super. 473, 478 (App. Div. 1999); see also Dubak v. Burdette Tomlin Mem'l Hosp., 233 N.J. Super. 441, 458-59 (App. Div.) (holding "that a tavern owner owes the duty to seek police assistance when it is reasonably foreseeable that such a measure is necessary to avert harm to a patron by reason of another's criminal acts"), certif. denied, 117 N.J. 48 (1989). In Kuehn, supra, 364 N.J. Super. at 314-15, the plaintiff was assaulted by members of a biker gang in the pub's restroom. The appellate panel reinstated the jury verdict, finding the defendant pub owner liable because the owner knew that the gang members were likely to engage in violence, had a policy of denying admission to gang members, but, in allowing those gang members entry to the pub, failed to enforce that policy.
In the instant case, the judge rejected the notion that the employment of additional bouncers would have prevented the harm. He concluded that it would be unfair to impose liability upon defendant because Hall's attack was sudden, unanticipated, and could not have reasonably been foreseen or prevented by defendant. We are satisfied from our review of the entire record that the judge's factual findings are supported by sufficient credible evidence in the record as a whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993).
Plaintiff asserts, for the first time on appeal, that by depositing the policy proceeds into court defendant waived its defenses on the issue of liability. Plaintiff maintains that the reference in defense counsel's affidavit that his client had offered its policy limits to settle the cases amounted to a declaration that the deposit was being made in settlement, thereby justifying a presumption on the part of plaintiff that defendant waived its liability defenses.
Generally, "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also State v. Marain, 322 N.J. Super. 444, 447 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000); Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511-12 (App. Div. 1999). Nevertheless, we address the issue and plaintiff's arguments.
Plaintiff completely misreads the record in support of the deposit of defendant's policy into court. Her argument also ignores the stipulation that she entered into with the other parties at the commencement of the trial and her actual participation in both a liability and damages trial. First and foremost, when defense counsel moved to deposit the policy limits with the court, he made it clear that the carrier had offered its policy limits in settlement of all claims but all plaintiffs had rejected the offer.
Although Rule 4:57 authorizes the deposit of funds with the court, it does not resolve the ownership of funds so deposited. We have pointed out that once funds are deposited with the court those funds are no longer an asset of the depositing party but instead subject to disposition by the court. Granduke v. Lembesis, 256 N.J. Super. 546, 549 (App. Div. 1992) (citing Kostick v. Janke, 223 N.J. Super. 311 (App. Div. 1988)). A carrier's deposit of its policy limits, together with an offer to pay up to those limits in settlement of all claims against its insured, is made to close the case without exposing its insured to an excess verdict above those limits. See Connelly v. McVeigh, 374 N.J. Super. 159, 167 (App. Div. 2005). Such an offer is consistent with a carrier's duty to make a good faith settlement. See Rova Farms, supra, 65 N.J. at 496. A plaintiff who fails to settle a case "is not automatically entitled to deposited funds regardless of the outcome of the underlying case." Granduke, supra, 256 N.J. Super. at 550 (citing, as analogous, R. 4:58-1, where an offer of judgment has not been accepted). A deposit of a carrier's limits into court does not negate the undisputed principle that a plaintiff who does not accept a settlement offer cannot later recover the offer where the defendant prevails at trial. Ibid. Simply stated, the deposit of defendant's liability policy limits with the court did not amount to confession of judgment or waiver, as asserted by plaintiff.
The stipulation entered into by the parties at the commencement of trial made it clear that the damage verdict was being capped at the policy limits in return for the parties' agreement to a bench trial,*fn5 permitting plaintiffs to introduce medical and expert reports, rather than live testimony, and limit testimony to plaintiffs' witnesses only. Plaintiffs could have chosen a different strategy by settling the issues of liability and agreeing to try the issue of their individual damages by seeking an apportionment of those damages within the aggregate policy limits. They chose not to do so. Instead, all plaintiffs participated in a bench trial with just their own witnesses on the issue of defendant's liability for each incident and their respective damages. It is disingenuous for plaintiff's counsel to now take a contrary position that the deposit of the policy limits and/or capping of defendant's damages exposure represented an admission of liability or a waiver of defenses by defendant.*fn6