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Pisciotti v. P.F. Pasbjerg Development Co.

July 16, 2009

PHYLLIS PISCIOTTI AND PETER LAMONICA, HER HUSBAND, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
v.
P.F. PASBJERG DEVELOPMENT CO. AND JACKSON PLAZA ASSOCIATES, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND PERLMART, INC., D/B/A SUPER SHOP RITE OF JACKSON, DEFENDANTS, AND P.F. PASBJERG DEVELOPMENT CO., JACKSON PLAZA ASSOCIATES AND PERLMART, INC., D/B/A SUPER SHOP RITE OF JACKSON, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
v.
EDWARD C. HODUM, JR., THIRD-PARTY DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1012-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2008

Before Judges Skillman, Graves and Grall.

Plaintiff Phyllis Pisciotti was assaulted in the parking lot of a shopping center in Jackson owned by defendant Jackson Plaza Associates (Plaza) and managed by defendant P.F. Pasbjerg Development Co. (Pasbjerg). Edward C. Hodum, Jr., plaintiff's assailant, entered her car as she was preparing to leave the shopping center with groceries she had purchased at the Plaza from defendant Perlmart Shop Rite (Perlmart).

Pisciotti and her husband, whose claims were per quod, commenced this litigation to recover damages for injuries sustained as a consequence of the negligence of Perlmart, Plaza and Pasbjerg. Perlmart, Pasbjerg and Plaza filed third-party complaints seeking contribution and indemnification from Hodum. Perlmart settled with plaintiffs, and the jury awarded Pisciotti damages in the total amount of $275,000 and allocated eighty percent of the fault to Hodum, twenty percent to Plaza and Pasbjerg and no fault to Perlmart.

Plaintiffs appeal, and defendants Plaza and Pasbjerg cross-appeal from that judgment. Because plaintiffs' evidence was insufficient to establish defendants' negligence, we reverse on defendants' cross-appeal. That disposition obviates the need to address the issues raised by plaintiffs.

I.

As reflected on the video-recording of activity at the entranceway of the Shop Rite, Pisciotti left that store with her groceries at 4:13 p.m. on Sunday, May 16, 2004. After putting her purchases into the back of her van, Pisciotti opted to forego return of the twenty-five cent deposit for the shopping cart she had used and left it by her car. She got into the driver's seat and put on her seatbelt. Hodum approached. Assuming that he wanted her shopping cart, she opened her window and said he could have it. He thanked her. When Pisciotti turned to reach for a cigarette, Hodum opened her car door and grabbed her by the neck. He said, "Shut up or I'm going to kill you." She struggled, called for help and honked the horn of her car. A passer-by shouted at Hodum, and he fled. Pisciotti saw him run first to a red truck and then to a black car, in which he drove away. At 4:16 p.m., three minutes after she had left the store with her groceries, Pisciotti re-entered the Shop Rite and called the police.

Pisciotti was able to give the police the license plate number of Hodum's car, and he was arrested. Both Hodum and Pisciotti had minor injuries that were visible. Hodum had a scratch and Pisciotti's neck was red, her face was scratched and her lip was cut.

The police kept Pisciotti's van but returned it without searching for evidence at her husband's request. She subsequently found rags in the van that did not belong to her or a member of her family. In June, she found a knife wedged in the back seat of the van. She viewed the items as evidence indicating that Hodum had entered and left her car while she was shopping. By the time of trial, Hodum had pled guilty to attempted kidnapping.

The Shop Rite is the anchor store of Plaza's shopping center. There are fourteen other tenants including Blockbuster, Cingular, a pizzeria, a fitness center, a mattress store, a dry cleaner, a bank, a Hallmark shop and a liquor store. On the far side of the parking lot, there is a McDonald's restaurant. As noted above, Shop Rite has a surveillance camera focused on the entrance to the store. The Shop Rite has additional cameras inside the store. Outside the store, Shop Rite's surveillance cameras cover the lane of traffic between the store front and the parking aisles and a portion of the parking lot. Neither Pisciotti's van nor Hodum's car, however, was parked in an area of the lot within the range of a camera.

Hodum's first appearance on Shop Rite's videotapes from May 16, 2004 was around 2:00 p.m. He left the liquor store carrying beer at 2:13 p.m. and was in front of the store at 2:24. He used a payphone in the store at 2:31, was outside at 2:41, used the phone again at 2:55, and was outside at 3:02 and 3:49.

There are no signs in the Plaza parking lot alerting would-be predators to the surveillance or warning patrons of danger. A security guard patrols the parking lot after dusk, but there is ...


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