JONATHAN LLOYD VS. UNDERPASS ENTERPRISES, INC., T/A THE HAREM (L-1503-14, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 4, 2017
• Docket: A-5228-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5228-15T2

JONATHAN LLOYD and MELY E. LLOYD, his wife,

Plaintiffs-Appellants,

v.

UNDERPASS ENTERPRISES, INC. t/a THE HAREM,

Defendant-Respondent. ____________________________________

Submitted July 25, 2017 – Decided August 4, 2017

Before Judges Reisner and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1503-14.

Lanza & Lanza, LLP, attorneys for appellant (John R. Lanza, of counsel and on the brief).

Muscio & Kaplan, LLC, attorneys for respondent on Counts One and Six (Michael Muscio, on the brief).

PER CURIAM

Plaintiffs Jonathan and Mely Lloyd appeal orders dated May

13 and June 27, 2016 that dismissed their personal injury complaint against Underpass Enterprises, Inc. t/a The Harem (the Harem). We

affirm.

In March 2013, after playing poker tournament style in a

hotel room with co-workers, plaintiff Jonathan Lloyd (Lloyd)

agreed with other players to go to "the Harem," which was a

gentleman's club. Cecil George, who was at the poker game, invited

Meg James, who was not at the game, to join him at the Harem.

Lloyd arrived at the Harem around midnight. Lloyd testified in

his deposition that George was inebriated. About an hour later,

Lloyd saw George fighting with another person, who may have been

George's friend Meg James. The Harem's bouncers broke up the

fight and then escorted George and the other combatant outside to

the parking lot. Lloyd followed. After they were all outside,

the bouncers stood near the door at the Harem's entrance. Lloyd

was standing near George when he saw the other combatant rushing

quickly, looking "menacing and coming at [them] with intent."

Lloyd stepped in between George and the person rushing at them to

"put [him]self as a barrier between [the other combatant] and

[George]." Lloyd stated "[e]verything happened quickly." He

awoke four days later in the hospital, having sustained a serious

head injury.

In April 2014, Lloyd and his wife filed a personal injury

complaint against the Harem. The Harem's motion for summary

2 A-5228-15T2 judgment was granted in a May 13, 2016 order, which dismissed the

negligence and per quod counts.1

The court found the Harem did not have a legal duty to the

plaintiffs because the incident with Lloyd was not foreseeable.

Relying on Peguero v. Tau Kappa Epsilon, 439 N.J. Super. 77 (App.

Div. 2015), in finding a lack of foreseeability, the court found

it was "not foreseeable that a third party, not in any way involved

in the fight inside [would] voluntarily leave[] and put[] himself

in between the two formerly fighting patrons . . . ." The court

distinguished our opinion in Cassanello v. Luddy, 302 N.J. Super.

267 (App. Div. 1997), because "[Lloyd] was not in any way involved

in the altercation in this case. It's not foreseeable that he

would have been in any kind of danger outside. He did not ask for

help and, indeed, he placed himself in harm's way voluntarily."

As such, the court found even if there were a duty by the Harem

to protect patrons, it did not continue under these circumstances.

On appeal, Lloyd contends the court erred because the Harem

had actual knowledge of a dangerous condition based on the fight

between two patrons inside the club and had a duty to protect him

1 The remaining counts were voluntarily dismissed with prejudice, except Count Three. That count was against John Doe employees of the Harem and was dismissed by the court on June 26, 2016 for the same reasons the May 13, 2016 order dismissed Counts One and Six.

3 A-5228-15T2 from a known danger. He alleges the club's duty was breached when

the bouncers merely escorted the combatants outside to the parking

lot and did not protect him.

We review a trial court's order granting or denying summary

judgment under the same standard employed by the trial court.

W.J.A. v. D.A., 210 N.J. 229, 237 (2012). The question is whether

the evidence, when viewed in a light most favorable to the non-

moving party, raises genuinely disputed issues of fact sufficient

to warrant resolution by the trier of fact, or whether the evidence

is so one-sided that one party must prevail as a matter of law.

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

The determination of whether a duty of care exists is a legal

question, the analysis of which depends upon weighing and balancing

"the relationship of the parties, the nature of the attendant

risk, the opportunity and ability to exercise care, and public

interest in the proposed solution." Hopkins v. Fox & Lazo, 132

N.J. 426, 439 (1993) (citing Goldberg v. Housing Auth., 38 N.J.

578, 583 (1962)); see also Peguero, supra, 439 N.J. Super. at 88

(citations omitted). "[W]hether a duty exists is ultimately a

question of fairness." Id. at 89 (alteration in original) (quoting

Weinberg v. Dinger, 106 N.J. 469, 485 (1987)). "The application

of these four factors is 'both very fact-specific and

principled[.]'" Ibid. (quoting Hopkins, supra, 132 N.J. at 439).

4 A-5228-15T2 "The foreseeability of the harm involved is one of the many

considerations in assessing whether a duty is owed." Ibid.

"Foreseeability is essentially 'based on the defendant's knowledge

of the risk of injury.'" Id. at 93 (quoting Podias v. Mairs, 394

N.J. Super. 338, 350 (App. Div.), certif. denied, 192 N.J. 482

(2007)).

Here, the court did not err in granting summary judgment

that dismissed plaintiffs' complaint. Lloyd was not involved in

the fight and simply decided to step in to help a friend. As

Lloyd stated in his deposition, "[e]verything happened quickly."

There was no evidence of prior similar incidents, that the fight

would continue outside, or that the Harem was familiar with the

combatant. Under these circumstances, the court correctly

determined that it was "not foreseeable that [Lloyd] would have

been in any kind of danger outside," particularly when he decided

to shield one person from another. We agree that this is not like

Cassanello, supra, 302 N.J. Super. at 269, where a tavern patron

who had been involved in an altercation "was attacked by two other

patrons after he had left the tavern." Rather, it is more

analogous to Peguero, supra, 439 N.J. Super. at 93, where we found

no duty by a fraternity club for a shooting that occurred at a

party. In that case, we found "it [could not] be reasonably

5 A-5228-15T2 foreseen that plaintiff would attempt to intercede in the

altercation." Ibid.

Affirmed.

6 A-5228-15T2