LARRY BURNS v. BRANDYWINE REALTY TRUST, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0647-09T30647-09T3

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.

____________________________________________________

 

Argued June 3, 2010 - Decided

Before Judges Fisher and Espinosa.

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

Steven E. Angstreich argued the cause for appellants (Weir & Partners, LLP, attorneys; Mr. Angstreich and Jennifer Hiller-Nimeroff, on the briefs).

Richard M. Darnall argued the cause for respondents (Reger Rizzo & Darnall, LLP, attorneys; Mr. Darnall and Scott E. Diamond, on the brief).

PER CURIAM

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, 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[], 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 plaintiff could not sustain his cause of action -- giving plaintiff the benefits required by Brill -- by resort to the facts and circumstances deemed relevant in Clohesy.

Based on the valid argument that rejection of the Somerson report does not require dismissal, plaintiff further argues that the judge was not authorized to reconsider whether the application of Clohesy warranted summary judgment in defendants' favor. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We would only add that upon concluding revisitation of his earlier ruling was appropriate, the judge was not required to limit the scope of reconsideration. Even if the judge felt reconsideration was appropriate because of the Somerson report, or the unpublished opinion referred to by defendants, the judge was nevertheless free to reconsider all aspects of his prior interlocutory rulings. No final judgment having been rendered, the judge was free to revisit his earlier interlocutory order "in [his] sound discretion" and "in the interest of justice." R. 4:42-2; see, e.g., Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356 (App. Div. 2004) (holding that judges are not "obligate[d] to slavishly follow an erroneous or uncertain interlocutory ruling"), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006); Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987) (holding that the power to revisit interlocutory orders prior to the entry of final judgment is "endowed with an unmistakable substantive content by the common understanding which underlies our jurisprudence of what is fair, right and just in the circumstances"), certif. denied, 110 N.J. 196 (1988); Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983) (holding that, prior to entry of final judgment, a judge "has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so").

We, thus, reject plaintiff's argument that the judge erred in granting, in whole or in part, reconsideration.

II

We also agree with the trial judge that the Somerson report could not defeat summary judgment because it did not provide an opinion as to what a risk assessment would have revealed.

Somerson opined that, as a general matter, parking lots are "favorite targets of criminals." He stated that "under standard security industry practices," defendants were required to "routinely conduct a risk assessment of their parking lot," and that their failure to maintain a risk assessment program fell below the standard of care. Somerson offered a list of "strategies," such as "conduct[ing] a regularly scheduled law enforcement liaison with" local police "to assure maximum patrol." He stated that "by failing to perform any risk assessment, [defendants] were unaware of their foreseeable risks." For summary judgment purposes, the trial judge was required to assume the truth of these assertions.

However, Somerson did not perform a risk assessment, which the judge found to be a critical omission:

[P]laintiffs' expert criticizes the defen-dants' lack of having conducted a risk assessment, suggesting that the lack thereof left the development of a proper security plan to guesswork; but, by the same logic, his own lack of having done a risk assessment means that his opinion in this regard is likewise speculative. There is no per se duty of an owner of a commercial development to conduct a formal risk assessment.

We agree.

Plaintiff was entitled to the benefit of the expert's opinion that a landowner in these circumstances is obligated to perform a risk assessment and that defendants failed to take that step. However, those assertions alone were not sufficient to support a claim that defendants were negligent. Absent an opinion from the expert as to what a risk assessment would have revealed had it been conducted, the conclusion that defendants were negligent or that their negligence was a proximate cause of the assault on plaintiff was purely speculative.

III

Plaintiff also argues that the facts contained in the record, when compared with Clohesy, were sufficient to defeat summary judgment. We disagree.

The key question in this case is whether the harm sustained by plaintiff was foreseeable, which in this context refers to "the knowledge of risk of injury to be apprehended." Clohesy, supra, 149 N.J. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)). This general question requires a weighing and balancing of four more specific factors: "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." Jerkins v. Anderson, 191 N.J. 285, 295 (2007) (quoting Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573 (1996)). With respect to whether a business owner owes a duty of care to its customers to protect against the criminal acts of third parties on its premises, the question is whether "a reasonably prudent person would foresee danger resulting from another's voluntary criminal acts . . . ." Butler, supra, 89 N.J. at 276. In Clohesy, the Court rejected the argument that this determination is made by resort solely to the existence of prior similar criminal incidents, adopting instead a "totality of the circumstances" test. 149 N.J. at 514.

In Clohesy, seventy-nine-year-old Kathleen Dalton was abducted from a supermarket parking lot and murdered. 149 N.J. at 500. The Foodtown property consisted of 44,279 square feet and was located on 3.32 acres; the parking lot contained 200 parking spaces. Ibid. The premises were adjacent to a liquor store and a gasoline station, and security was not provided. Id. at 503. Police records revealed that nearly sixty criminal incidents had occurred near the Foodtown over the two-and-one-half-year period that preceded the crime in question. Ibid. Dalton's estate alleged that Foodtown was negligent in failing to adequately secure the parking lot. Id. at 505.

In evaluating the foreseeability of the abduction and murder, the Court held that "[u]nder the totality of the circumstances approach, the actual knowledge of criminal acts on the property and constructive notice based on the total circumstances are relevant to foreseeability." Id. at 516. The Court further explained that "foreseeability can stem from prior criminal acts that are lesser in degree than the one committed against a plaintiff . . . [or] from prior criminal acts that did not occur on defendant's property, but instead occurred in close proximity to the defendant's premises." Id. at 516-17. The Court concluded that the kidnapping of Ms. Dalton from the parking lot was foreseeable based on

all the criminal acts that occurred on Foodtown's property and those that occurred in close proximity to its property; the property's size and location; the absence of any security; the architectural design of the building in relation to the area of the parking lot where the crime occurred; the size of the parking lot; the type of business defendant operates; the nature and circumstances of nearby businesses; and the increasing level of crime in the general neighborhood.

[Id. at 517.]

The Court then defined the scope of Foodtown's duty to ensure the safety of its customers as incorporating security for the parking lot through the utilization of "a security guard as well as other security systems or warnings deemed reasonable under all of the circumstances." Id. at 520.

Recognizing that the totality of the circumstances analysis must be applied "on a case-by-case basis," as the Court held in Clohesy, ibid., we later considered a claim that a tavern breached its duty of care to provide safe premises for its patrons in Ivins v. Town Tavern, 335 N.J. Super. 188, 190-91 (App. Div. 2000). The plaintiff was injured in a fight that occurred in the tavern's parking lot. The evidence revealed that police had responded to five reports of fights in the same parking lot in the year preceding the incident. Id. at 192. However, only two of these incidents actually involved violence and three reports were unfounded. Ibid. The plaintiff claimed these prior incidents were sufficient to place the defendant on notice that its duty of care required a security guard or bouncer in the parking lot. Id. at 193. After comparing the facts at hand to those of Clohesy and Butler, we concluded that the defendant had not breached its duty of care because only two incidents of violence had occurred in the prior year, the tavern was not located in a particularly violent area, and there was no reason for employees to have anticipated the fight. Id. at 197.

The circumstances here, when viewed as a whole and in the light most favorable to plaintiff, are more comparable to Ivins than Clohesy. As in Ivins, there were very few prior criminal incidents in the complex of which 305 Fellowship Road was a part, and there was no indication that the parking lot was located in a dangerous area. Plaintiff relies on police records as evidence that at least six theft-related crimes occurred in the vicinity during the year before the assault on plaintiff. However, at least two of the incidents occurred a mile from the premises, and police records reveal that from the period of January 1, 2000 to January 1, 2006, only one other incident occurred at 305 Fellowship Road, and that related to a dissimilar event -- a theft from within the building. Plaintiff also alludes to the building's alarm system report as evidence of prior criminal activity, but, as admitted by Somerson at his deposition, most of the instances on the report consisted of false alarms and only two instances resulted in the creation of a police report.

In addition, Somerson admitted in his deposition that "the crime levels around this property and on it were not very significant at all . . . . If I were to look at this property, I would say that most crime would not occur there because of the demographics and the history that property showed." Indeed, information provided to the trial judge reveals that Burlington County has a relatively low violent crime rate -- 1.8 per 1,000 crimes -- compared to other counties such as Cape May (3.1), Cumberland (9.0), Gloucester (2.1), Hudson (7.3), and Mercer (5.5). Moreover, the complex of which 305 Fellowship Road was a part housed primarily commercial tenants and was not located close to the types of properties that could attract transient criminals as in Clohesy.

Plaintiff relies also on the expert report of Robert C. McConnell, P.E., that concluded the dim, insufficient lighting of the parking lot substantially contributed to the crime. In addition, one of the assailants admitted he chose 305 Fellowship Road because it was "poorly lit." However, even when viewed in a light most favorable to plaintiff, this evidence is insufficient to establish that the totality of the circumstances rendered the crimes against plaintiff foreseeable. Like Ivins, there was a scant history of similar prior incidents and there was no evidence that defendants should have been aware of the likelihood of criminal activity at 305 Fellowship Road.

We, thus, conclude that the trial judge properly reconsidered his earlier denial of summary judgment and correctly granted summary judgment in favor of defendants.

 
Affirmed.

Although there are two plaintiffs in this case, we refer to "plaintiff" in the singular to avoid any confusion.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Specifically, the record contains information from the Mount Laurel Police Department that shows police were summoned to 305 Fellowship Road or nearby areas six times during the year preceding the incident:

-- On January 18, 2005, there was a report of a stolen vehicle from 700 East Gate Drive;

-- On January 18, 2005, two individuals were reported for lifting door handles off of vehicles parked in the lot at 307 Fellowship Road;

-- On December 22, 2004, a suspicious vehicle was reported at 305 Fellowship Road;

-- On June 14, 2004, there was a report of a break-in of vehicles and a shed located at 124 Gaither Drive, approximately one mile from 305 Fellowship Road;

-- Between February 8, 2004 and November 30, 2004, eight vehicles were reported stolen from Nixon Drive, approximately one mile from 305 Fellowship Road; and

-- On August 9, 2004, a stolen wallet was reported at 307 Fellowship Road.

According to the 2004/2005 New Jersey Municipal-County Offense & Demographic Data submitted by plaintiff, Burlington County had the sixth lowest violent crime rate out of all twenty-one counties.

(continued)

(continued)

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A-0647-09T3

June 24, 2010