SHARON GLENN v. VILAIRE DUROSEAU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SHARON GLENN,

Plaintiff-Respondent,

v.

VILAIRE DUROSEAU,

Defendant-Appellant.

____________________________________________

December 10, 2015

Submitted November 17, 2015 Decided

Before Judges St. John and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-4034-14.

Pitman, Mindas, Grossman, Lee and Moore, P.C., attorneys for appellant (Brendan H. Morris, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Vilaire Duroseau appeals from an order of the Special Civil Part awarding plaintiff, Sharon Glenn, $600. For the reasons that follow, we vacate the order and dismiss plaintiff's complaint.

We glean the following facts from the very brief proceeding held before the Special Civil Part judge. On September 27, 2014, plaintiff entered a UPS store in Orange, New Jersey and spoke with an employee about shipping a large phone. Plaintiff testified that the employee quoted a price of $180, and she told him she was not going to decide then, but would come back.

Plaintiff claimed that she had an envelope containing $600 in cash and placed the envelope and her purse on the counter of the store when she walked in. When she left, she took her purse but claims she left the envelope. Plaintiff walked about four blocks before remembering that she left the cash behind. She ran back to the store and asked the employee if he had seen the envelope. He looked around and responded that plaintiff did not leave an envelope in the store.

Plaintiff began to cry and called her boyfriend. The boyfriend spoke with the employee and told him to give plaintiff her money. The employee again denied that plaintiff left an envelope in the store. Plaintiff then called the police. A responding officer asked if the store's security camera was working and the employee responded that he would have to call the manager.

Later that day, the manager1 arrived and agreed to review anything that was captured on the security camera. Plaintiff's boyfriend returned to the store on the following Monday and was told that the security camera was not working.

Although defendant responded to questions from the judge, he was not advised of his right to cross-examine plaintiff or present evidence on his own behalf. Defendant stated that he is the owner of the UPS store but was not present when this incident occurred. Defendant explained that he attempted to review images from the security camera with plaintiff's boyfriend,2 but they could not see anything and determined that the camera was broken. The judge then asked defendant why he had not replaced the security camera. Defendant explained that he was not aware that the camera was malfunctioning and had been "going through a lot," caring for his six children after his wife died from breast cancer.

The judge then asked defendant if he was concerned that his employee was being "accused of taking someone's money." Defendant attempted to explain that he knew the employee and that his father had worked for defendant for ten years, but the judge interrupted him and questioned his faith in the employee's integrity because defendant had not "reviewed the camera." Defendant explained that he would have to pay a $200 fee for a UPS expert to determine why the camera malfunctioned.

Either not understanding or not accepting defendant's explanation that no images were recorded on the malfunctioning camera, the judge ordered defendant to return to court with the "film" from the security camera so he could review it. The judge said that if he could view the "continuous uninterrupted feed" he would be able to determine whether plaintiff left the envelope on the counter and if someone took it.

The judge then appeared to initially conclude that defendant's employee took the $600 and presented defendant the option of getting the employee to return the money or proving that he did not steal it by bringing in the camera: "if you want the gentleman who you have so much trust and faith in to give back $600, that's fine. It will be done. But if you don't, then bring in the camera."

Defendant asked the judge if he wanted an expert report but the judge repeated that he wanted to see the "film." When defendant again attempted to explain that nothing was recorded, the judge abruptly awarded $600 to plaintiff. Defendant offered to bring in an expert report on the camera but the judge refused

I I don't want to read the expert report. I want to see the I want to see the film. That film is there for your benefit for this very reason, to protect you and your customers. It's there to protect you and your customers. And I'm not saying that you or your employees did anything, but when a customer comes in and says I've a crime has been committed again[st] me, you're telling me this camera needs some expert to review it. Okay. Get the expert to review it. That's what it's for. Otherwise, you can submit this judgment to your insurance company and explain to them why your cameras weren't working. She lost $600.

When defendant indicated that he would file an appeal, the judge made the following finding

I I find that you've been negligent in this theft that occurred for one of your customers, and your customer has the right to believe that the camera that you had up there would have protected her and it hasn't.

On appeal, defendant raises the following points

point I

the trial court erred as a matter of law as the requisite elements to establish a prima facie case of negligence do not exist herein.

a. defendant did not breach a duty owed to plaintiff.

b. a causal nexus does not exist.

point ii

the trial court erred as a matter of law by failing to find plaintiff culpable of comparative negligence.

In her complaint, plaintiff alleged that defendant "took my money and refused to return it." However, at trial, plaintiff accused defendant's employee, not defendant, of stealing her money. Since it is not disputed that defendant was not present at the time of the incident, plaintiff's claim must be viewed as alleging that defendant was liable for his employee's theft of plaintiff's money. Drawing all inferences in plaintiff's favor, there is insufficient evidence to establish that the employee took plaintiff's money. Given that failure of proof, there is no need to examine whether defendant could have been held vicariously liable for such a theft.

Plaintiff testified that she entered the store carrying a purse and an envelope containing $600 in cash, placed both on the counter, and left the store without the envelope. There was no proof as to how long it took plaintiff to walk the four blocks before she realized her cash was missing, or how many people were in and out of the UPS store during that time. Plaintiff's claim that defendant's employee must have taken her money finds no support on the record.

The judge did not find that defendant's employee stole plaintiff's cash. Rather, he specifically noted that he was "not saying that [defendant] or [defendant's] employees did anything . . . ." The judge based the award on his conclusion that defendant was negligent in not maintaining a functioning security camera which would have established who actually took the money. Such an extension of a business owner's duty to a patron is untethered to any precedential or statutory authority.

Business owners have a duty to protect patrons from foreseeable criminal acts of third parties occurring on their premises. Butler v. Acme Mkts., Inc., 89 N.J. 270, 280 (1982). The Butler Court defined the duty of care owed by a shopkeeper to the public

the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation. The measure of that care has been described as due care under all the circumstances. Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others. If the reasonably prudent person would foresee danger resulting from another's voluntary criminal acts, the fact that another's actions are beyond defendant's control does not preclude liability. Foreseeability of the risk that criminal acts of others would cause harm is the crucial factor.

[Id. at 275-76 (internal citations and quotation marks omitted).]

Defendant's testimony that he has owned the UPS store since 2010 and never experienced a similar theft was unrefuted. While not dispositive of whether a duty exists, foreseeability of harm is a "crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994).

In the absence of any proof that thefts had occurred in defendant's store before, and considering defendant's unrefuted testimony that he was unaware of his malfunctioning security camera, there was no basis to conclude that defendant was negligent in failing to maintain the security system and that this negligence was the proximate cause of plaintiff's loss.

The judgment in favor of plaintiff is vacated.

1 Defendant testified that he was the owner of the store and not the manager. It is not clear from the record whether the person who responded on September 27 was defendant or someone else.

2 Defendant identified the man as plaintiff's husband but plaintiff testified that he was her boyfriend.