September 7, 2011
CRAIG KEVIN SOMERS, PLAINTIFF-APPELLANT,
HOME PROPERTIES REGENCY CLUB, LLC, D/B/A REGENCY CLUB APARTMENTS, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
ERIC ADAIR, JOSHUA GONZALEZ AND DASHAUN RANDOLPH, THIRD-PARTY DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3786-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 8, 2011
Decided March 8, 2011
Before Judges Carchman and Graves.
Plaintiff Kevin Somers appeals from an April 30, 2010 order granting summary judgment to defendant/third-party plaintiff Home Properties Regency Club, LLC (Home Properties). For the reasons that follow, we affirm.
In 2005, Home Properties was the owner of the Regency Club Apartments (the Regency), a residential complex containing 372 apartments on approximately twenty-seven acres. Around midnight on November 13, 2005, plaintiff, then a senior in high school, arrived at the Regency with Nicholas Spallos to visit Jason Freeman, a friend who resided there. After approximately one hour, the three left the apartment and walked to Freeman's car. As they approached the vehicle, plaintiff noticed three individuals, later identified as third-party defendants Eric Adair, Joshua Gonzalez, and Dashaun Randolph, sitting in a car "about three spaces down" from Freeman's. According to plaintiff, the three "didn't really seem to be going anywhere," but he "didn't think anything would happen." He and his friends entered Freeman's car, with Freeman in the driver's seat, plaintiff in the passenger's seat, and Spallos in the back seat on the passenger side.
Before leaving, they spent several minutes in Freeman's car to connect his iPod to the car stereo. They then drove to plaintiff's car, which was parked in the same lot, to retrieve another accessory. According to plaintiff, as they prepared to leave, the third-party defendants "pulled up" next to the passenger side of Freeman's car, fired five shots, and drove away. Two bullets struck plaintiff, and one struck Spallos. They were ultimately taken to Jersey Shore Hospital by paramedics, and plaintiff underwent abdominal surgery. One bullet remained inside his body because it was located in "a very sensitive area," and doctors "didn't want to risk doing any further damage" by attempting to remove it. Plaintiff remained in the hospital for nine days, underwent four weeks of physical therapy, and missed seven weeks of school.
On November 13, 2007, plaintiff filed a complaint against Home Properties, alleging that it had been "negligent in the ownership, leasing, operation, maintenance, and/or control" of the Regency. More specifically, plaintiff contended that "a lack of safety and security for residents and visitors in the subject apartment complex, including the parking areas and access roads contained therein," had caused him "to be assaulted and sustain severe, life-threatening physical injuries." Home Properties denied the allegations, and obtained leave to file a third-party complaint against Adair, Gonzalez, and Randolph. The third-party complaint was filed on September 19, 2008, and Home Properties obtained default judgments against all three individuals on December 1, 2008.*fn1
During discovery, plaintiff obtained a report from Francis R. Murphy, M.A.S., M.A., of Law Enforcement and Security Management Consulting, LLC. Murphy catalogued approximately eighty incidents involving police that occurred at the Regency in the five years preceding plaintiff's assault, including several violent offenses. He stated that it was "incomprehensible that the owners and/or the property management company failed to know of the existing criminal activity occurring on this commercial property . . . well before the instant matter giving rise to this litigation." Murphy elaborated:
These data provide credible evidence that prior to the attempted murder in the Somers case, there had been previous serious crimes occurring on the property and the owners and[/]or their management company should have been aware of this criminal activity. Having knowledge that there was serious criminal activity occurring on the property should have given rise to a full evaluation of security at this apartment complex or lack thereof. At the time of Mr. Somers['s] attempted murder there was no security at all. Even with another homicide occurring earlier at the apartment complex, the property owner/s and[/]or management failed to institute any reasonable security measures for their tenants. To date, I have not been presented with any evidence that the owners and[/]or property management conducted any risk or vulnerability assessments as is standard security practice.
Following a motion by plaintiff regarding apportionment of fault,*fn2 Home Properties filed a cross-motion for summary judgment. On April 30, 2010, the court granted the cross-motion and entered an order for summary judgment in favor of Home Properties. The order was accompanied by a twenty-one-page written decision in which the court found that plaintiff had failed to establish a pattern of criminal activity at the Regency warranting a heightened duty to protect its guests. The court reasoned as follows:
[T]his Court can't help but have a tremendous level of sympathy for this innocent victim of a drive-by shooting . . . .Nevertheless, this Court must apply New Jersey case law, in determining the existence and scope of any duty owed by the apartment complex owners to this plaintiff, Mr. Somers. Under the "totality of the circumstances," this three hundred seventy-two (372) unit complex, spread over some twenty-seven (27) acres of property, was not a gated community. The apartment management did not assume a duty to provide security to outdoor common areas through written lease agreements with respect to tenants, or otherwise. The only prior serious incident occurring in the outdoor common area, [which] originated between two (2) groups of tenants and their invited guests, did not create any pattern . . . of criminal activity. Similarly, no facts have been offered to show any nexus between . . . the [prior] stabbing incident, and the random, thoroughly unprovoked, shooting of Mr. Somers.
Accordingly, under these specific facts, the landlord, [Home Properties], cannot be found to have undertaken, or be responsible for, a virtually limitless duty to provide security to outdoor common areas of the non-gated community. The community itself has various entrances and exits. As per the uncontroverted facts, the property is regularly patrolled by the Jackson Township Police Department. . . . Absent more specific facts and circumstances establishing the requisite component of foreseeability in the application of such a "totality of the circumstances" standard, the plaintiff's theory, if upheld, would represent a quantum leap, rather than a nudge in expanding liability for the landlord apartment owners. Under these specific facts, the scope of any duty from the landlord to the victim of the random shooting, has not been established. This Court will therefore grant the defendant's summary judgment motion.
Plaintiff filed a notice of appeal on July 13, 2010, after his motion for reconsideration was denied. He now submits the following arguments for our consideration:
POINT I THE STANDARD OF REVIEW IS DE NOVO.
POINT II THE PROPERTY OWNED BY THE DEFENDANT IS COMMERCIAL.
POINT III THE SAME DUTY OWED TO A TENANT IS OWED TO A TENANT'S GUEST.
POINT IV A COMMERCIAL LANDLORD HAS A DUTY TO PROVIDE SECURITY TO TENANTS AND THEIR GUESTS.
POINT V THE TRIAL COURT ERRED BY DETERMINING, SUA SPONTE, THAT THE EXPERT'S REPORT CONSTITUTED [A] NET OPINION.
When considering orders for summary judgment, we utilize the same standard as the trial court. See Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008). Summary judgment is appropriate where the pleadings and evidence "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Because the element of duty is a purely legal issue, we review the trial court's conclusions de novo. See Jerkins v. Anderson, 191 N.J. 285, 294 (2007) ("Whether a duty of care exists is a question of law that must be decided by the court.").
"In the common areas of an apartment complex, tenants and their social guests are deemed to be business visitors of the landlord." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005). Thus, the landlord owes them a duty "to guard against any dangerous conditions . . . that the owner either knows about or should have discovered." Ibid. (omission in original) (internal quotation marks omitted) (quoting Park v. Rogers, 176 N.J. 491, 498 n.3 (2003)). This includes an obligation "to take reasonable security precautions to protect tenants and their guests from foreseeable criminal acts," ibid., regardless of whether these acts are committed by third parties beyond the landlord's control. Id. at 121-22.
To determine the scope of a landlord's duty, i.e., whether a criminal act was foreseeable, our courts have adopted a "totality of the circumstances approach," Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 514 (1997), which requires consideration of "all the factors a reasonably prudent person would consider," id. at 508. These include: "'the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.'" Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).
In this case, the record before us does not support the broad duty advocated by plaintiff. Given the random nature of the crime committed, it was not foreseeable and, as the trial court correctly determined, plaintiff failed to establish a pattern of prior criminal activity sufficient to warrant protective security measures in the Regency's common areas. Although the prior incidents at the complex confirm that various offenses occurred prior to the November 13, 2005 shooting, they do not establish a pattern of dangerous or violent activity. Given the arbitrary and unprovoked nature of the incident that resulted in plaintiff's injuries, we decline to impose upon Home Properties a duty to self-police its many parking lots and other common areas.
In view of the foregoing, we need not consider plaintiff's arguments regarding Murphy's expert report. Accordingly, the order for summary judgment is affirmed substantially for the reasons stated by Judge John A. Peterson, Jr., in his comprehensive written opinion on April 30, 2010.