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Burns v. Brandywine Realty Trust

June 24, 2010

LARRY BURNS AND DIANE BURNS, H/W, PLAINTIFFS-APPELLANTS,
v.
BRANDYWINE REALTY TRUST, INC. A/K/A BRANDYWINE REALTY TRUST, AAPOP 1, L.P., AAP SUB ONE, INC., ATLANTIC AMERICAN PROPERTIES TRUST AND ATLANTIC AMERICAN LAND DEVELOPMENT, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-897-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2010

Before Judges Fisher and Espinosa.

In this appeal, we review the dismissal of plaintiff's claim that the landowners of an office park were negligent in failing to employ safety measures that would have prevented him from being victimized by criminals in the property's parking lot. We affirm because plaintiff's expert report was inadequate to support a finding of proximate cause and because an application of the principles set forth in Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496 (1997), preclude a finding of liability in these circumstances.

The record reveals that, at approximately 6:30 p.m. on February 25, 2005, plaintiff Larry Burns exited his office at 305 Fellowship Road in Mount Laurel and walked to his vehicle in the adjacent parking lot. As plaintiff approached his vehicle, he was ambushed by a man brandishing a gun. Another assailant emerged, and plaintiff was forced into his car. The assailants took all plaintiff's cash and then drove to an ATM where plaintiff was compelled to withdraw money from his account. The assailants then drove a short distance on the New Jersey Turnpike before forcing plaintiff out of his vehicle. The assailants shot plaintiff four times in the chest and drove off. Plaintiff managed to walk almost a mile to a restaurant, where emergency care was summoned. He was required to undergo multiple surgeries and still has a bullet lodged in his left shoulder.

Plaintiff and his wife filed this suit against defendants,*fn1 who collectively own and maintain the property at 305 Fellowship Road and other adjacent properties, due to their alleged failure to adequately secure the property against the foreseeable criminal acts of third parties.

The property consists of a three-story office building that houses corporate tenants; it is one of eleven buildings that comprises the East Gate Center. At the time of the incident, the buildings were equipped with a card access system and emergency telephones in their front entrances. The parking lot was lit in accordance with a local lighting ordinance and also contained clear lines of sight to enable surveillance from the building's interior.

Defendants moved for summary judgment, claiming they could not be held liable because the criminal conduct in question was not foreseeable. They also argued that plaintiff's expert, Ira Somerson, provided an inadequate opinion; specifically, they argued that although he asserted defendants failed to conduct a risk assessment of the property, Somerson did not conduct a risk assessment himself and, thus, could not opine whether the results of a risk assessment would have led to an understanding that greater security was necessary and that such additional security would have prevented the incident in question.

Plaintiff argued the incident was foreseeable under the totality of the circumstances, which included the "size of the parking lot, the location and number of buildings, the number of people, and the lack of cameras, emergency phones," and thus defendants were negligent in failing to provide adequate security. The trial judge found that Somerson's "opinion supports a prima facie claim for premises liability, based on the inadequate security of the sort that is set forth here by the plaintiff." The judge concluded that "defendant is not entitled to a judgment as a matter of law, as contemplated by Brill[*fn2 ], given some factual support behind the plaintiff's expert opinion saying that the abject failure of really any kind of security plan constitutes a breach of the standard of care."

Defendants sought reconsideration. The judge determined, after examining Somerson's report "more thoroughly, in light of the controlling case law," that "it's difficult to see how any . . . reasonably foreseeable risk of harm from criminal activity could exist." He explained that "[t]he general act of foreseeability" to which plaintiff's expert alluded, "that all parking lots are per se places where crime is foreseeable, goes beyond the notion of foreseeable as contemplated by our case [law] here." He also found that Somerson's "own [failure to do] a risk assessment means that his opinion in this regard is . . . speculative." As a result, the judge concluded he was previously mistaken and granted summary judgment in favor of defendants.

In appealing, plaintiff makes three essential arguments. First, he argues the trial judge improperly concluded that reconsideration was appropriate because of his subsequent rejection of Somerson's opinion. That is, plaintiff argues that it did not automatically follow that the rejection of their expert's opinion required dismissal. Second, plaintiff contends the judge mistakenly found Somerson's opinion to be inadequate. And third, plaintiff argues the totality of the circumstances deemed relevant in Clohesy, when applied here, would permit the factfinder to conclude that the assault was foreseeable.

I.

As a threshold matter, we agree with plaintiff's argument that expert testimony is not necessarily required for a case like this to survive summary judgment. "There is no general rule or policy requiring expert testimony as to the standard of care." Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982). The test is whether the matter was "so esoteric that jurors of common judgment and experience [could not] form a valid judgment as to whether the conduct of the party was reasonable." Ibid. We agree that, in this case, plaintiff's case was not dependent upon expert testimony. Instead, to obtain summary judgment, defendant was required to show that ...


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