September 17, 2013
MARK D'ALESSIO, Plaintiff-Appellant,
STARLAND BALLROOM, ANSCHUTZ ENTERTAINMENT GROUP, AEG LIVE NJ, LLC and STRIKE FORCE PROTECTIVE SERVICES, INC., Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-715-10.
Matthew P. Pietrowski argued the cause for appellant (Levinson Axelrod, P.A., attorneys; Tara L. Johnson, on the brief).
Christopher E. Martin argued the cause for respondent Anschutz Entertainment Group (Morrison Mahoney, L.L.P., attorneys; Mr. Martin, of counsel and on the brief; Emily C. Kidder, on the brief).
John M. Tuntevski argued the cause for respondent Strike Force Protective Services, Inc. (Chasan Leyner & Lamparello, PC, attorneys; Mitchell L. Pascual, on the brief).
Before Judges Graves and Ashrafi.
In this personal injury action, plaintiff Mark D'Alessio appeals from two orders dated August 24, 2012, granting summary judgment in favor of defendants AEG Live NJ, LLC (AEG) and Strike Force Protective Services, Inc. (Strike Force) and dismissing his complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The Starland Ballroom, located in Sayreville, New Jersey, is owned and operated by AEG, which hired Strike Force to provide security services. On October 3, 2009, plaintiff and his nephew, James D'Alessio,  attended a concert by the musical group Seether at Starland Ballroom. Plaintiff alleged he suffered injuries due to defendants' negligence. Specifically, plaintiff testified at his deposition that near the end of the concert, the crowd started "pushing." He described the incident as follows:
Q. And you felt comfortable prior to your accident where you were, correct?
Q. Okay. And then what happened?
A. People started pushing.
Q. From the time that the people started pushing, did you eventually fall after that?
A. Yeah, they pushed. It resulted in a fall.
Q. Okay. How much time occurred between the time when you felt people push to the time that you said you had your fall?
Q. When you fell, what part of your body did you land on?
A. My hands, face. First my hands.
That's not when I got hurt though. This is prior to getting hurt.
Q. How much time passed after your hands are on the ground until you felt pain?
A. About four seconds.
Q. And what happened?
A. Two guys picked me up, one on each side with – under my arms they picked me up. And as people were still pushing, a big guy landed on the back of my legs. And I fell down knees first. Heard the pop.
Q. Do you know who picked you up?
Q. Where was [James] when you went down?
A. [James] was watching the band, [he] didn't know what happened, maybe a few feet away from me.
Q. So at the time you went down and your hands went down as you described, before they picked you up, at that point when you were going down, did you see anybody being thrown around?
Q. Okay. Then how do you know it was a big guy?
A. How did I know it was a big guy? I saw him, I saw him. It was a big, huge guy.
Q. When did you see this guy?
A. When I got up.
Q. The second time?
A. When I got up, yeah, he said he was sorry or something.
When asked if he ever felt "unsafe" during the concert, plaintiff responded: "No, I felt safe the whole time until I got hurt." Plaintiff described Seether's music as "just rock and roll . . . alternative maybe" and said the accident occurred when he was to the right of the stage and "maybe half way back, halfway in between the stage and the back part." Plaintiff testified that James drove him "straight to the hospital."
Plaintiff was diagnosed with a broken foot and a torn ACL, which required surgery and therapy. At the time of his deposition on July 11, 2011, plaintiff said that he was still unable to squat or kneel, had "trouble going up and down steps, " and felt "pain all around, pain constant."
Sean Cornato, the assistant general manager of Starland Ballroom, testified at his deposition that the fire capacity of Starland Ballroom was 2831 people, that the Seether concert sold 2082 tickets, and that the "actual attendance in the building was somewhere in the 1900 range." He further stated Seether had performed at Starland Ballroom "multiple times, " and was "low maintenance" because there were no "incensed fans or anything like that." He described Seether's music as "straight ahead rock music, " "not an aggressive band, " and "not really" the type of band "that would invoke wild behavior by a crowd." Based on his prior experience with Seether, Cornato did not believe the concert "would require any less or any more security than just would generally be required."
According to Cornato, Strike Force was hired to provide crowd control, prevent underage drinking, and to address matters that would "present a safety risk to patrons." Cornato testified there were eighteen Strike Force employees working the night of the concert, together with an EMS worker to provide medical services. Cornato emphasized that mosh pits and crowd surfing were not permitted at Starland Ballroom, and neither were "common practice" when Seether performed. He also stated that to his knowledge no one had ever been hurt at any other Seether concert.
Hazem Ibrahim, director of operations for Strike Force, was deposed on August 9, 2011. He testified he did not recall the placement of the security guards on the night of the concert, but stated that "generally" for a night like that, there would be eighteen security guards, with six at the front door "to get the crowd in, " three at the side doors, "four to six in the barricade, " who would be redeployed from the front door, "some staff on the bars, " and "some roam teams." He further stated "crowd behavior" was considered by Strike Force and AEG in determining the need for security personnel and their placement, but Seether was "a middle of the road show" and "not too crazy." Ibrahim testified, "I've done a bunch of Seether shows, it's not a moshing, crowd surfing [audience] but it's active, they dance. You know, it's a rock show but it's not like a hard-core show."
When James was deposed on December 13, 2011, he testified he had been to Starland Ballroom "many times" and attended a Seether concert once before in Pennsylvania. He stated he never felt "threatened" or "unsafe at any time" while at Starland Ballroom. James also confirmed he did not see how the accident happened.
In a report prepared for plaintiff, Dallas Security, Inc., concluded that "[t]he owners and managers of Starland Ballroom created an environment which was prone to violence by routinely serving alcohol to patrons that included physically active, rowdy males." The report stated:
The nature and extent of the security program at Starland should have been commensurate to the likelihood that misbehavior, aggressive behavior and violence would occur in such an environment, and in fact, may have been, in part.
An additional factor was the type of band in concert that night. "Seether" is a rock band that attracts a young and aggressive audience that frequently acts out in the form of moshing and crowd surfing.
AEG submitted a report by Ira Somerson dated April 12, 2012, which concluded: "There is no evidence that on the date and time of the subject incident, any 'moshing' or 'surfing' occurred on the dance floor increasing the risk of an accident." The report noted "Strike Force had provided security for a 'bunch' of Seether concerts, " and Strike Force described "the patrons as a dancing crowd but not a surfing or moshing crowd. The policy for the Starland Ballroom prohibits moshing and surfing."
Strike Force moved for summary judgment and AEG cross-moved for summary judgment. Following oral argument on August 24, 2012, the court found that the attack, if "it was an attack in any way, shape, or form or just clumsy people at a Seether concert, " "happened within such a short period of time that any negligence theory against AEG or Strike Force would be unsustainable as a matter of law." The court stated:
We all agree there was an injury. But I believe AEG and Strike Force's motions for summary judgment must be granted. The mere occurrence of an accident causing injuries to the plaintiff is not sufficient to authorize an inference of negligence.
There is no evidence of any prior issues relating to a potentially dangerous conduct by this unidentified patron who caused [plaintiff] to suffer a very serious injury. And unfortunately, I don't see any evidence here about the conduct of the patrons on the evening of the incident that would provide any kind of inference of negligence on the part of AEG and Strike Force.
Plaintiff argues on appeal that the August 24, 2012 orders should be reversed because "the proofs weighed in plaintiff's favor would allow a jury to reasonably conclude that the defendants' breached their duty to protect the plaintiff from reasonably foreseeable harm inflicted by third-parties." We do not agree.
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). As stated by the Court:
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)).]
When reviewing an order granting summary judgment, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 536 (quoting Liberty Lobby, supra, 477 U.S. at 251-52, 106 S.Ct. at 2512, 91 L.Ed.2d at 214). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J.Super. 255, 258 (App. Div. 1987).
A negligence cause of action has four elements: "(1) duty of care, (2) breach of duty, (3) proximate cause, and (4) actual damages." Weinberg v. Dinger, 106 N.J. 469, 484 (1987) (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts, § 30 at 164-65 (5th ed. 1984)). The "scope of a duty owed is a matter of law" and the "determination of the existence of a 'duty to exercise reasonable care to avoid the risk of harm to another . . . is one of fairness and policy that implicates many factors.'" Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502 (1997) (quoting Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996)). Summary judgment is appropriate when the court is "satisfied a rational fact finder could not conclude defendant breached [its] duty of care." Endre v. Arnold, 300 N.J.Super. 136, 143 (App. Div.), certif. denied, 150 N.J. 27 (1997). The issue here is not whether defendants owed a duty to plaintiff––they did––but whether the record supports the court's decision that, as a matter of law, they did not breach that duty.
"It is well recognized that the common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm." Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 306 (2010). "[T]he business entity will not be held liable for injuries sustained 'so long as [the business] has acted in accordance with the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.'" Id. at 307 (quoting Hojnowski v. Vans Skate Park, 187 N.J. 323, 341 (2006)) (alteration in original).
Foreseeability, "the foundational element, " is based on a "defendant's knowledge of the risk of injury and is susceptible to objective analysis." J.S. v. R.T.H., 155 N.J. 330, 337-38 (1998). This knowledge may be actual or constructive, and "[i]n some cases where the nature of the risk or the extent of harm is difficult to ascertain, foreseeability may require that the defendant have a 'special reason to know' that a 'particular plaintiff' or 'identifiable class of plaintiffs' would likely suffer a 'particular type' of injury." Id. at 338 (citing People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 262, 263 (1985)). Furthermore, "when the risk of harm is that posed by third persons, a plaintiff may be required to prove that defendant was in a position to 'know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a] third person' that was 'likely to endanger the safety' of another." Ibid. (quoting Clohesy, supra, 149 N.J. at 507).
In this case, we are in substantial agreement with the trial court's analysis. There is nothing in the record to support plaintiff's claim that defendants knew or had reason to know that a dangerous condition existed or that defendants failed to properly protect plaintiff against such a condition. AEG took reasonable precautions to enforce its policy against unsafe crowd behavior by employing Strike Force. Additionally, Seether had performed at Starland Ballroom in the past without incident; the accident occurred within a matter of seconds; and plaintiff concedes he "felt safe the whole time until [he] got hurt." Under these circumstances, "the evidence 'is so onesided that [defendants] must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214).