JASON MOLINO v. MICHAEL COLUZZI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4851-09T3

JASON MOLINO,

Plaintiff-Appellant,

v.

MICHAEL COLUZZI and

KENNETH COLUZZI,

Defendants,

and

GREG CASSIDY,

Defendant-Respondent.

___________________________________

April 28, 2011

 

Submitted April 6, 2011 - Decided

 

Before Judges Axelrad and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-283-08.

 

The Chartwell Law Offices, LLP, attorneys for appellant (Michael J. Needleman, on the brief).

 

Powell, Birchmeier & Powell, attorneys for respondent (Edward N. Romanik, on the brief).

PER CURIAM

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.

I.

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-laden1 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."2

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."3 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 further details:

Q. What did [Cassidy] tell you?

 

A. He just said she was in the house with a bunch of his guy friends which are all older than [Saccavino], older than me, and I know they were drinking, doing drugs, whatever they were doing in the house. And to me, that kind of scared me, I didn't know what happened, I didn't know what was going on.

 

Q. Well you told me before that Cassidy told you that Rita [Saccavino] and whomever else was in the house had been drinking the night before. Did Cassidy also tell you that there were drugs?

 

A. Yes.

 

Q. What did he tell you specifically in terms of the drugs?

 

A. Cocaine.

Then Cassidy volunteered the Wildwood address, and Coluzzi departed for Wildwood. Cassidy did not try to call the inhabitants in Wildwood, although he conceded that it would have been a good idea, "after the fact . . . [b]ut it all happened so quickly. I wasn't thinking straight." Cassidy admitted that after confiding in Coluzzi, "[he] was hoping that [Molino] listened to me the night before and I just hoped for the best." His hope for the best was not to be.

Although Cassidy claimed that Coluzzi drove off by himself,4 Coluzzi testified that Cassidy accompanied him on the drive to Wildwood, and back to Ocean City after he retrieved Saccavino. Although Coluzzi's state of mind during the drive to Wildwood is not material to the legal question of duty in this appeal, he testified in his deposition about his concerns as follows:

Q. All right. Let me try it another way. Were you concerned that [Saccavino] had been doing drugs or did you have other concerns?

 

A. Concerned doing drugs and other concerns too.

 

Q. What were your other concerns?

 

A. That she was in an apartment or in a party with a whole bunch of older guys. She didn't know any of them, she never met them. I knew she didn't know them so I didn't know what was happening. I didn't know what was going on.

 

Q. What specifically was your concern?

 

A. I mean, I had a whole bunch of things running through my head, if they raped her, beat her up, I don't know, I had no idea.

 

Coluzzi shortly appeared at the Wildwood address. Leaving Cassidy in the car, Coluzzi opened the dwelling's unlocked front door and ascended a flight of stairs where he opened a second unlocked door that led into a beer-can littered living room and hallway leading to bedrooms. He walked down the hallway until he saw a "wide open" door; looking in, he observed Molino and Saccavino asleep, dressed in "boxer shorts, maybe like pajamas, something, sleeping wear, not like jeans or nothing." While Coluzzi was trying to awake Saccavino, Molino "jumped up out of bed" and fisticuffs (and worse)5 ensued between Molino and Coluzzi: "that's when [Coluzzi] went towards [Molino] and that's

when [Molino] and [Coluzzi] went at it."6

As a result of the tumult, Molino suffered facial fractures that required reconstructive surgery. He commenced this lawsuit seeking remedies against several defendants. This appeal relates only to his negligence claims against Cassidy, which were dismissed by summary judgment for want of any duties of care owed to Molino.

The Law Division wrote a thorough and thoughtful opinion in which it concluded that in the absence of a "special relationship between Molino and Cassidy," akin to that required by Sacci v. Metaxas, 355 N.J. Super. 499, 508 (App. Div. 2002), "[t]hat should foreclose the claim against Cassidy by itself." Finding no such special relationship plaintiff, by the way, does not urge the existence of such a relationship on appeal the Law Division examined whether any other circumstances would give rise to the duties alleged by Molino. The distillation of its analysis is best expressed in the court's conclusion:

To impose a duty between casual social friends in this situation would open up every Jersey Shore weekend party of teens and young adults to claims of failure to warn of every jealous lover's potential to get angry. With today's sexual mores, that is a large universe. No such duty should be imposed. No such duty shall be imposed here.

 

This appeal followed.

II.

Our review of a motion for summary judgment is guided by the same standard as used by the Law Division. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div.), certif. denied, 200 N.J. 209 (2009). In our de novo review, we initially determine whether there was a genuine issue of material fact in dispute; if not, we then decide whether the motion court's ruling on the law was correct. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 374 (App. Div.) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 196 N.J. 601 (2008). We "owe[] no deference to the trial court's 'interpretation of the law and the legal consequences that flow from established facts . . .' and, hence, [our] review of legal issues is de novo." Pressler & Verniero, Current N.J. Court Rules, comment 3.1 on R. 2:10-2 (2011) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

"Negligence as it is commonly understood is conduct that creates an undue risk of harm to others." Erny v. Estate of Merola, l 71 N.J. 86, 97 (2002). To prove a cause of action sounding in negligence, a plaintiff must establish: (1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach. Siddons v. Cook, 382 N.J. Super.1, 13 (App. Div. 2005); Gilleski v. Cmty. Med. Ctr., 336 N.J. Super. 646, 652 (App. Div. 2001).

The foundational underpinnings of negligence jurisprudence require that a plaintiff cannot recover from one who owes him no duty of care. J.S. v. R.T.H., 301 N.J. Super. 150, 154 (App. Div. 1997), aff'd, 155 N.J. 330 (1998). "[U]nder our system it is simply not enough to ground liability in the fact that the defendant did not act with reasonable care and that his carelessness caused injury." Taylor ex rel. Taylor v. Cutler, 306 N.J. Super. 37, 42 (App. Div. 1997), aff'd in part, 157 N.J. 525 (1999). "To establish liability, the plaintiff must demonstrate that the defendant owes him a duty of care." Ibid.

The existence of a duty of care is a legal issue to be determined by the court, not by the fact finder. Carvahlo v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). Also, the scope of any such duty is to be determined by the court as a matter of law. Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). Whether a duty exists is fact sensitive, and depends upon an evaluation of various factors including:

[T]he nature of the underlying risk of harm, that is, the foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interest of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.

 

[J.S., supra, 301 N.J. Super. at 337 (citing Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439 (1993).]

 

"An important factor in applying an objective analysis is the foreseeability of the risk of harm based on a defendant's knowledge of the risk." Sacci, supra, 355 N.J. Super. at 508. However, "[e]ven if the risk is foreseeable, a legal duty does not necessarily arise." Ibid. "Reasonableness, public policy, fairness and common sense . . . must be taken into account when imposing new legal duties." Sanchez v. Indep. Bus Co., Inc., 358 N.J. Super. 74, 81 (App. Div. 2003).

A related question is whether plaintiff lacked the ability or opportunity to avoid the harm. Kuehn v. Pub Zone, 364 N.J. Super. 301, 310 (App. Div. 2003) (citing J.S., supra, 155 N.J. at 337), certif. denied, 178 N.J. 454 (2004). Finally, the public interest concern revolves around whether a plaintiff's interests, along with those similarly situated, are entitled to legal protection against defendant's conduct. See Weinberg v. Dinger, 106 N.J. 469, 481 (1987); Portee v. Jaffee, 84 N.J. 88, 101 (1980).

In the words of appellant's brief, a prime issue in this matter is whether Cassidy owed Molino "a duty to refrain from affirmatively acting to substantially exacerbate an already known risk of injury to [a]ppellant . . . by not only informing M. Coluzzi of the [Wildwood] property's location but inflaming M. Coluzzi's already heated passions and providing M. Coluzzi with false and misleading information." Spinning the duty calculus 180 degrees, appellant further argues, "the lower court erred in holding Mr. Cassidy did not owe a duty to either warn or protect [Molino] from a foreseeable risk of harm." Molino's claimed duties, then, involve on the one hand, active wrongdoing: exacerbation of a known risk of harm and spreading falsehoods; on the other hand, passive wrongdoing: neglecting to provide security measures and failing to warn the victim of impending danger.

When viewed through the Brill lens established by the facts of this case, we find that the duties owed to Molino by Cassidy were not duties to warn, see, e.g., J.S., supra, 155 N.J. at 352; to otherwise take active steps to protect Molino against harm from the actions of Coluzzi, see, e.g., Podias v. Mairs, 394 N.J. Super. 338, 347-48 (App. Div.), certif. denied, 192 N.J. 482 (2007); or to actively lessen a risk of harm to Molino by providing unspecified security measures. See Trentacost v. Brussel, 82 N.J. 214, 222 (1980). Instead, the duty applicable to Cassidy was the duty to refrain from affirmatively acting to substantially exacerbate an already known likely risk of harm.

Recognizing that a rational jury might not believe Coluzzi's version of events, we nevertheless observe that such a jury could conclude Cassidy had affirmatively acted in a fashion that increased the risk of harm to Molino that were already manifested by the actions and statements of Coluzzi when he first arrived in Ocean City. Such a jury could conclude that acting out of jealousy or harboring another motivation relating to Molino's interest in Saccavino, Cassidy's inciting an "unbelievably agitated, crying hysterical[,] [m]adman on a mission" to set out to the scene of either his girlfriend's defilement or dalliance, and then acting as the navigator to the potential battle site carried an unreasonable and foreseeable risk of harm. As an objective matter, we regard it appropriate to conclude, in light of the risks posed, that conduct of this nature failed to conform to the legal standard applicable to Cassidy's position, without regard to any "special relationship," and thus a breach of duty could be found to exist.

In recognizing the existence of this duty, we do not impose strict liability upon Cassidy for the injuries suffered by Molino. Cassidy retains the full panoply of defenses to any negligence action, which include for illustrative purposes only whether Cassidy's conduct, in fact, knowingly increased the risk of harm to Molino; whether Cassidy's conduct was a proximate cause of Molino's injury or whether there were superseding causes; and admeasurement of comparative fault. However, these are the raw materials that will be used to build a verdict by a jury; all we have done is to identify the prism of duty through which the jury's deliberations will pass.

This is a reasonable duty to impose upon persons, whether they vacation or live at the Jersey Shore, or elsewhere in this State, where the facts present as here. We regard as overheated hyperbole Cassidy's claim that such will produce a "torrent of litigation . . . involving teens and young adults, alcohol parties, and fights due to jealous boyfriends and girlfriends." We believe that most of our citizens are better behaved than that, and the conjectural tsunami of lawsuits is neither likely to occur nor something to fear.

Affirmed in part, reversed in part, and remanded for further proceedings.

 

 

1 Coluzzi reported that he was told by Cassidy that cocaine was ingested by Molino and several others at the party. Many other accounts denied that cocaine was present.

 

2 Cassidy indicated that although he had not personally witnessed Coluzzi engage in any fights, when asked what he knew of them, Cassidy testified as follows:

 

Q. Tell me what you know.

 

A. That most of [Coluzzi's fighting] is based off jealousy, his girlfriend would be flirting with another guy and it's more of a macho man syndrome.

 

Q. Macho man syndrome?

 

A. Yeah, like bad ass on the block, I'm going to prove myself type deal.

3 Contrawise, Coluzzi testified that when he arrived in Ocean City he was neither "upset at all [n]or agitated."

4 Cassidy's deposition testimony indicated that as soon as Coluzzi left for Wildwood, he "started packing [his] stuff up to go home because [he] knew it was going to get bad."

5 Molino claimed that when Coluzzi walked into the room, Molino "stood up and he walked towards me and hit me in the jaw with the gun, with the butt of the gun." Coluzzi disputed the use of the firearm, instead asserting that after exchanging punches and wrestling, he jabbed Molino in the face with the baseball bat: "I had the baseball bat the handle towards my waist, my right hand and the top of the bat with my left hand and I kind of put it in an upward motion, upward jab."

 

6 After the encounter, Saccavino left with Coluzzi. Molino did not call either the police or an ambulance, but later went to a local emergency room where he recounted his injury as having occurred when he "fell out of bed." Later, at a hospital in Pennsylvania, it dawned on Molino that his injuries were serious, and efforts were made to contact the Wildwood police.