MELISSA ALVARDO v. THE BLAIR HOUSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MELISSA ALVARDO,

Plaintiff-Appellant,

v.

THE BLAIR HOUSE, IMPAC PROPERTY

MANAGEMENT, a body corporate,

PREMIER SECURITY SERVICES, INC.,

Defendants-Respondents,

and

PREMIER SECURITY SERVICES, INC.,

Third-Party Plaintiff/

Respondent,

v.

ERIC OBUGYEI and CATHERINE SMITH,

Third-Party Defendants.

____________________________________

August 27, 2014

Argued January 14, 2014 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-9240-10.

Barry D. Epstein argued the cause for

appellant (The Epstein Law Firm, P.A.,

attorneys; Mr. Epstein, of counsel;

Michael A. Rabasca and Erika S. Cabri,

on the brief).

Walter F. Kawalec, III, argued the cause for

respondents The Blair House and Impac

Property Management (Marshall Dennehey Warner Coleman & Goggin, attorneys; Mr. Kawalec, on the brief; Matthew S. Schorr, on the brief).

Judy Selmeci argued the cause for respondent

Premier Security Services, Inc. (Wilson Elser Moskowitz Edelman & Dicker, L.L.P., attorneys; Bruce W. McCoy, Jr., of counsel and on the brief).

PER CURIAM

Plaintiff Melissa Alvarado brought this negligence action against defendants The Blair House (Blair), a condominium complex; Impac Property Management (Impac), the property manager of Blair; and Premier Security Services, Inc. (Premier), which provided Blair with concierge and security services. Plaintiff alleges she was injured due to defendants' failure to provide adequate security while she was at Blair. The trial court granted summary judgment as to these defendants1, as well as denied plaintiff's motion to extend discovery. We affirm.

I

The undisputed facts are as follows. At about 12:15 a.m. on July 11, 2010, plaintiff drove to Blair to visit her boyfriend. She parked in the visitors' lot on the side of the building. While walking toward the front entrance, Eric Obugyei and Catherine Smith, who plaintiff did not know, approached plaintiff in the parking lot. Obugyei asked to use plaintiff's cell phone, explaining that his cell phone had run out of power. Plaintiff handed her phone to him, which he returned after completing his call.

Obugyei then asked plaintiff to drive him and Smith to a bus station. Plaintiff initially hesitated but agreed after the couple offered to pay her (she does not recall how much they offered to pay). She also consented to drive them to the bus stop because she wanted to be "nice," and admitted she would have driven them to the station even if they had not offered money.

Plaintiff then got into her car and unlocked the other doors to the car. Obugyei got into the front passenger seat and Smith into the back seat. They drove out of the lot and Obugyei gave plaintiff directions to the bus station. Plaintiff estimated that the entire encounter with Obugyei and Smith in the parking lot lasted about five minutes. While in the parking lot, plaintiff did not find anything about Obugyei or Smith that was alarming or threatening. Plaintiff acknowledged she was aware of the dangers of letting strangers into her car.

When they were about a mile from Blair, Obugyei told plaintiff to drive into the parking lot of a residential building. Plaintiff complied, assuming the couple was going to disembark. After plaintiff put her car in park, Smith put a wire around plaintiff's neck, started to choke her, pulled her into the backseat, put a bag over her head, and bound her wrists and ankles. Obugyei drove the car to the Hackensack River, where plaintiff was made to walk into and sit in knee-deep water. The couple then drove off in plaintiff's car. Eventually, plaintiff was able to get to the road where she flagged down a motorist, who called the police.

At the time of the incident, there was a camera pointed at the area where plaintiff encountered Obugyei and Smith in the Blair parking lot. The images from the camera were streamed live on a television monitor inside of the building, twenty-four hours a day. An employee from Premier was also on duty at Blair twenty-four hours a day.

Although there was evidence Blair is located in an "upscale" neighborhood, plaintiff pointed out that records from the Hackensack Police Department for the period July 2007 to July 2010 revealed the police were called to Blair eighty-five times, suggesting Blair was rife with criminal activity. However, the records indicate there was in fact very little of such activity.

Sixty of the eighty-five calls merely concerned rendering aid or assistance; seven were for "disputes," five of which had occurred inside of the units; five calls concerned traffic accidents or violations; three were "notifications"; and two were related to thefts, one of which was in 2007 and the other in 2010. In addition, on eight separate occasions there was a call concerning: an identity theft; a 911 hang-up; a "suspicious" person in a unit; lost property; harassment; disturbing the peace; a threat to kill, which was made inside of a unit, in 2008; and the possession of a weapon, a call that was also made in 2008. Plaintiff did not produce evidence of the outcome of those very few calls that may have involved the commission of a crime.

Plaintiff's expert2 claims that the eighty-five calls from Blair to the police department showed there was sufficient criminal activity on the property between July 2007 and July 2010 to have made the plaintiff's incident foreseeable. Reduced to its essence, the expert opines defendants should have had a security guard constantly watching the monitor and, when Obugyei and Smith appeared in the parking lot, the guard should have approached and asked them "what was happening." The expert claimed such questions would have deterred them from committing a crime, because they would have realized they had been recognized and captured on a closed-captioned television.3

II

In reviewing a summary judgment decision, we apply the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Viewing the evidence "in a light most favorable to the non-moving party," we determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We review questions of law de novo, State v. Gandhi, 201 N.J. 161, 176 (2010), and need not accept the trial court's conclusions of law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).

A negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). Generally, whether a duty exists and the scope of that duty are questions of law, see Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997), although whether a duty has been breached is a question of fact to be decided by a jury. Arvanitis v. Hios, 307 N.J. Super. 577, 582 (App. Div. 1998). However, whether a duty has been breached can be decided on a motion for summary judgment if 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).

As a landlord, Blair had a duty to take reasonable security precautions to protect tenants and their guests from foreseeable criminal acts in common areas. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005). Under general negligence principles, Impac and Premier also owed plaintiff a duty of care. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (identifying relevant factors to be relationship between parties, nature of attendant risk in light of hazard presented, ability and opportunity to exercise care, and public interest). In our view, the issue here is not whether defendants owed a duty of care but whether they breached that duty.

Plaintiff contends the guard should have been monitoring the closed circuit television and, when he saw Obugyei and Smith, was obligated to approach and ask why they were on the premises. Assuming under the totality of the circumstances surveillance of the Blair lot by a guard was even required, see Clohesy, supra, 149 N.J. at 516-19, under these specific factual circumstances, we hold that, no reasonable jury could infer that defendants breached a duty of care to plaintiff because the security guard failed to question Obugyei and Smith. When only one inference can be drawn from the facts, none of which here are in dispute, summary judgment is appropriate. See Brill, supra, 142 N.J. at 536, 540.

Anyone viewing what unfolded in the parking lot would have observed an innocuous, unremarkable encounter among three adults having a conversation. The plaintiff would have been seen handing her cell phone over to Obugyei who, after a few moments, handed the cell phone back to her. Following some additional conversation, plaintiff got into her car, and did so without any force or coercion. Obugeyi and Smith were still outside of plaintiff's car when plaintiff got in behind the wheel. A second or so later, Obugeyi and Smith entered the car and they all drove off. Given plaintiff's own description of what transpired, Obugyei and Smith did not exhibit any outward signs of confrontation, hostility or aggression. There was nothing to suggest that any criminal action had or was going to occur. Under these facts, we find defendants did not breach their duty of care.

Plaintiff also argues that summary judgment was not properly granted because she had not yet completed discovery, and that the trial court erred by not granting her motion to extend the discovery end date. We need not address the merits of these arguments as we are persuaded further discovery would not change the outcome. Under Brill, supra, 142 N.J. at 529, if the issues challenged by the party opposing summary judgment are insubstantial, "the proper disposition is summary judgment."

Affirmed.

1 Premier maintained that, under its contract with Blair, it was not obligated to provide security services. However, for purposes of its summary judgment motion, Premier did not dispute it was retained to provide security in addition to concierge services.

2 Although plaintiff's expert's report was served after the discovery end date, like the trial court, we also reviewed and considered this report.

3 Plaintiff's expert's report set forth other alleged deviations from "accepted principles and practices of security," such as the management company failed to state in writing what it wanted or expected from the security company. Plaintiff does not appear to be advocating that these other deviations proximately caused her injuries.