On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-283-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 6, 2011 -
Before Judges Axelrad and J. N. Harris.
Plaintiff Jason Molino appeals from the summary judgment dismissal of his action against defendant Greg Cassidy for negligence associated with the tortious conduct of defendant Michael Coluzzi. The Law Division dismissed the complaint, finding that because Cassidy did not stand in a "special relationship" with Molino, he did not owe Molino a duty either to prevent harm by Coluzzi or a duty to warn of impending mayhem and injury. Because we disagree with the ascertainment of the existence of one such duty, we affirm in part, reverse in part, and remand for further proceedings.
The Law Division resolved the dispute between Molino and Cassidy in the context of Cassidy's motion for summary judgment. Accordingly, our recitation of the facts is most favorable to Molino, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Wilson ex rel. Manzano v. City of Jersey City, 415 N.J. Super. 138, 145 (App. Div. 2010), certif. granted, 205 N.J. 80 (2011).
In early July 2006, Molino (then almost twenty-three years old) and Cassidy (then twenty-one years old) were friends, having been acquainted for approximately one year. Cassidy and Coluzzi (then eighteen-years old) were also acquainted, having been introduced to each other by Cassidy's younger brother about two years earlier. Notwithstanding the common link of Cassidy, Molino had only once before met Coluzzi prior to July 11, 2006.
It was on that day that Molino was assaulted by Coluzzi while Coluzzi was in possession of a baseball bat and a firearm.
In the twenty-four hours preceding the assault, Molino and Cassidy attended a liquor-influenced and cocaine-laden*fn1 party in Wildwood. Among the revelers was Rita Saccavino -- the then-seventeen-year-old girlfriend of Coluzzi -- and two of her female friends, all who were invited by Cassidy. After almost eight hours carousing, where at least one witness alleged that Cassidy was "trying to, you know, kind of get with [Saccavino]," Cassidy tired, and departed by car for Ocean City. Cassidy testified in his deposition that Saccavino stayed behind in Wildwood with Molino because "earlier in the night when [they] were hanging out she made mention that she was interested in [Molino]." The last thing that Cassidy said to Molino before heading for Ocean City was, "[Saccavino] had a boyfriend and to watch out."*fn2
A few hours later, around nine in the morning, "Coluzzi barged through the front door of the Ocean City residence looking for his girlfriend Rita [Saccavino]." Cassidy recounted that Coluzzi was "unbelievably agitated, crying hysterical. Madman on a mission."*fn3 He "was just ranting on and on about where Rita was, he couldn't get a hold of Rita, he's been trying to call her all night." In response to Coluzzi exclaiming, "[w]here's Rita, where's Rita," Cassidy said the following:
[S]he was in Wildwood where I left her. I told him that I tried to get her to come with us, she didn't want to come and that she was in Wildwood, if he wanted to go get her, he could go get her because I didn't want any part of it.
According to Coluzzi's deposition, Cassidy filled him in on ...