Kepler v. Taylor Mills Developers, Inc.

815 A.2d 988, 357 N.J. Super. 446, 2003 N.J. Super. LEXIS 35
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 28, 2003
StatusPublished
Cited by5 cases

This text of 815 A.2d 988 (Kepler v. Taylor Mills Developers, Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kepler v. Taylor Mills Developers, Inc., 815 A.2d 988, 357 N.J. Super. 446, 2003 N.J. Super. LEXIS 35 (N.J. Ct. App. 2003).

Opinion

The opinion of the court was delivered by

LANDAU, J.A.D.,

retired and temporarily assigned on recall.

This is an appeal by defendants-eross-claimants, who are together denominated herein as “the Club,” from grants of summary judgment to the co-defendants denominated herein as “Cherry Hill” and “Garden State”,2 on the Club’s cross-claims in an action commenced by plaintiffs Michael Kepler and Bryan Kepler. Summary judgments were granted to Cherry Hill and Garden State against the plaintiffs, who have since settled with the Club and have not appealed from those judgments.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs were patrons at a Cherry Hill nightclub known as the Iguana Beach Club during the early morning hours of April 12, 1997. They had parked in an area on premises of defendant Garden State, located three to four hundred yards from the Club, that served as an additional parking facility pursuant to a license [449]*449agreement between the Club and Garden State. The license provided for monthly payments to Garden State by the Club, in return for which Club patrons were permitted to use that parking lot. Garden State agreed to keep the lot illuminated from dusk until 4:00 A.M. The Club agreed to indemnify Garden State against claims arising out of use of the lot by its patrons.

Plaintiffs were injured when a conversation they were having with several other men turned into an argument and then erupted into a fight that resulted in the complained-of injuries. The incident occurred at the Garden State parking area as plaintiffs were returning to their car. Plaintiffs said it began and ended in a very short period of time; “real short,” “maybe a minute.”

The Club had an arrangement with the Police Department of Cherry Hill Township (the Department) for the posting of a security detail, usually consisting of two officers 3 “at The Iguana Beach Club,” generally for about four hours during late night and early morning periods on most days of the week. Indoor security was maintained by the Club. The Club reimbursed the Department, which paid the assigned officers’ respective overtime charges as reflected in a letter from the Department to the Club. Officers’ participation was voluntary, and assignments to the Club detail were made by the Department pursuant to a rotating schedule of officers interested in such overtime duty.

The officers’ presence was ordinarily established in a marked patrol car outside of the Club, although there was testimony that a closing sweep of the Garden State lot was made by some officers at the end of a tour. Two Club employees certified that they “understood” that the Cherry Hill Police Department provided security for the entire parking area, inclusive of the Garden State lot, and not just the front of the Club.

Defendants, Officers Leone and Stewart, were detailed to the Club on April 12, 1997. They responded immediately in their [450]*450patrol car to the Garden State lot upon receiving a police radio call respecting the subject incident. Other Cherry Hill officers and an ambulance responded shortly thereafter.

Plaintiffs’ amended complaint joined the Club defendants, the Garden State defendants, and the Cherry Hill defendants, alleging various breaches of duty. The Club cross-claimed against Garden State and Cherry Hill, alleging not only breaches of duty but, as to Cherry Hill, a breach of the “agreement” between its Police Department and the Club.

On Garden State’s motion, summary judgment in its favor was entered on March 2, 2001, dismissing with prejudice plaintiffs’ complaint and any and all cross-claims. On May 30, 2001, an order was entered granting summary judgment to the Cherry Hill defendants and dismissing plaintiffs’ complaint against them. While there was no specific mention of the Club’s cross-claim, the briefs demonstrate that all defendants contemplated that the order also had the effect of dismissing the Club’s cross-claim against Cherry Hill. Only the Club appealed.

We' scheduled a telephonic conference-argument among the parties and the court, during which counsel for the Club and Cherry Hill, as well as Garden State, stipulated that the Cherry Hill order be regarded as dismissing the Club’s cross-claim. This enabled us to decide the appeal as taken from a final determination, rather than subjecting the parties to a costly corrective remand. Finality of the orders had been assumed by the parties after the stipulation of settlement between plaintiffs and the Club was entered into on December 27, 2001. Although that settlement was subject to the terms of an installment payout, counsel have represented to the court that payment has been completed, removing any further question respecting finality of the judgments.

As plaintiffs have not appealed, only the Club’s appeal from the judgments rejecting its cross-claims is before us for review.

For the reasons set forth below, we affirm, both as to Garden State and Cherry Hill.

[451]*451 I. GARDEN STATE

The Club’s cross-elaim against Garden State is primarily grounded in the assertion that Garden State failed to maintain premises reasonably safe for business invitees because it failed to properly illuminate the lot. As the motion judge observed, however, factual support was lacking for the complaint’s allegation that the area was unlit, or that inadequate lighting was causally linked to the fight in which plaintiffs suffered injury. Plaintiffs said in discovery that they had no difficulty seeing the persons with whom they engaged in the altercation. The resulting injuries had nothing to do with the presence or absence of light. Moreover, the duration of the dispute as testified to by plaintiffs in discovery was so brief as to negate any effect of lighting upon the ability of the security guards or others to prevent its occurrence. There was neither proof of a breach of duty owed by Garden State nor of proximate causation sufficient to submit the cross-claim against Garden State to a fact-finder under Brill v. Guardian Life Ins. Co., 142 N.J. 520, 666 A.2d 146 (1995).

Finally, the record discloses that the Club agreed to hold harmless Garden State from liability arising out of its grant of the parking license.

Accordingly, we affirm the judgment for Garden State.

II. CHERRY HILL

The motion judge concluded that a letter from the Cherry Hill Police Department regarding payment of its bills for reimbursement of the overtime payments to officers assigned to the “security detail at The Iguana Beach Club” was sufficient to reflect existence of an agreement. The judge concluded, however, that the record reflected nothing to support the existence of an obligation to “extend the geographical seope of the security detail beyond the premises of The Iguana Beach Club ...” and that as a matter of law, “the contract did not extend an obligation to provide a security detail on the Garden State lot.” The judge also [452]*452found that there was “no factual basis to support any claim of proximate cause [of the plaintiffs’ injuries].” Although he declined to reach the Tort Claims Act immunity defense raised by Cherry Hill, we hold that defense to be alone sufficient to warrant summary judgment.

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815 A.2d 988, 357 N.J. Super. 446, 2003 N.J. Super. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kepler-v-taylor-mills-developers-inc-njsuperctappdiv-2003.