NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1737-16T4
MARTIAL BRISMA and ALBERTE MILORD,
Plaintiffs-Appellants,
v.
RENEL LOUIS, LAX RECORDS CARIBBEAN MUSIC AND MOVIES STORE,
Defendants,
and
PARAMOUNT PROPERTY MANAGEMENT, INC., NEW VISTAS CORPORATION and COLLIERS INTERNATIONAL,
Defendants/Third Party Plaintiffs-Respondents,
JAMES MOREAU,
Third-Party Defendant. ___________________________ Submitted January 8, 2019 – Decided January 31, 2019
Before Judges Fisher and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2709-14.
John W. King, attorney for appellants.
Law Office of Steven J. Tegrar, attorneys for respondents (George H. Sly, Jr., on the brief).
PER CURIAM
Plaintiffs Martial Brisma and Alberte Milord, his wife, appeal from Law
Division orders denying an extension of discovery, barring additional expert
reports, denying reconsideration, denying a motion to compel a corporate
representative to appear for deposition, and granting summary judgment to
defendants Paramount Property Management, Inc., Colliers International, and
New Vistas Corporation (collectively defendants). Because we agree these
orders were properly granted, we affirm.
This matter arises from an armed robbery of Brisma and ten others on
Sunday, April 7, 2013, at approximately 11:00 p.m. in a restaurant under
construction. The restaurant and an adjoining record store known as LAX
Records Caribbean Music and Movies Store were located in a mixed use
building in Elizabeth. When the incident occurred, the storefront to the right of
LAX Records was under construction to become a restaurant. The restaurant
A-1737-16T4 2 was not yet open for business. LAX Records did not have regular hours on
Sunday and was closed at the time of the robbery.
Renel Louis, the owner and operator of LAX Records, leased the property
where the robbery occurred from Paramount. The lease provided the premises
could only be used as a retail store for the sale of records, and for no other
purpose unless approved in writing by the landlord. The leased premises are in
a two-story building containing multiple ground level stores in a row that front
a street. The second floor is occupied by residential tenants. The property does
not include a parking lot.
Both stores feature magnetized entrance doorways rigged to a buzzer
system Louis installed for security. 1 A heavy magnet keeps the door closed.
There is an exterior buzzer used to signal whoever is inside to let somebody i n.
The magnet is controlled by an interior buzzer that must be depressed to allow
entry or exit. In addition, the adjoining storefronts are connected by a doorway
that allows a person to cross over between stores.
Louis went to the store on Sundays to "hang out in there" with his friends.
On the night of the incident, Louis and about eleven of his friends met at the
store; they planned to hang out before going to a midnight party down the street
1 At his deposition, Louis explained he installed the lock system for maximum safety because of the area, since he was sometimes in the store by himself. A-1737-16T4 3 at Club Envy. As the events unfolded, Brisma and his friends were inside the
restaurant watching television and playing cards and dominoes for money.
While doing so, two gunmen entered the restaurant from the record store side of
the building, locked the door behind them, ordered everyone on the ground, and
robbed them of a small amount of money. Brisma was shot twice during the
robbery. One of the bullets is still lodged in his body.
In a recorded statement to police four days after the robbery, Brisma gave
the following account of the incident:
There were two men that walked in. Once they went in to the store one of them locked the door so no one else could come in. The two men were demanding money and they were telling everyone to empty their pockets. One of the men began hitting a couple of the other guys with the handle of the gun. At one point one of the men approached me and started hitting me with the gun and in my face. I turned and tried to run and I got shot in the back and I fell to the ground. He thought I was dead, after a couple minutes I was able to crawl to the front door. I went out the front door and fell to the sidewalk. I was able to crawl to my car which was parked right in front and I stayed there until a vehicle came by and a man asked me if I was okay. I told him I got shot and he called the police.
When asked how the gunmen circumvented the buzzer security system,
Louis stated, "I don’t know." The record does not disclose how the gunmen
gained entry. Following a police investigation, third-party defendant James
A-1737-16T4 4 Moreau was identified as the shooter, prosecuted, convicted of the robbery, and
sentenced to prison.
On July 30, 2014, plaintiffs filed suit against defendants Louis and LAX
Records alleging they breached their duty to secure all entrances and exits and
protect patrons and customers from unauthorized entry by gunmen, proximately
injuring Brisma and causing Milford to suffer loss of consortium. On January
7, 2015, plaintiffs filed a first amended complaint naming Paramount and New
Vistas as additional defendants. On July 20, 2015, plaintiffs filed a second
amended complaint naming Colliers as an additional defendant. Paramount,
New Vistas, and Colliers filed a third-party complaint against Moreau for
contribution and indemnification.
On September 18, 2015, plaintiffs' original counsel was relieved due to a
conflict of interest. Plaintiffs' successor counsel filed a substitution of attorney
on December 21, 2015. In the midst of plaintiffs' substitution of counsel,
defense counsel fell ill. She died on January 6, 2016.
The initial discovery end date was December 4, 2015. By consent,
discovery was extended until February 2, 2016, pursuant to Rule 4:24-1(c). On
January 22, 2016, Judge Thomas J. Walsh granted defendants' motion, extending
a second time discovery until April 2, 2016 and setting an arbitration date of
April 21, 2016. On February 17, 2016, Judge Walsh entered a consent order
A-1737-16T4 5 extending discovery a third time until June 30, 2016 based on plaintiffs'
counsel's recent substitution and personal injury, and defense counsel's untimely
death. The order did not set a new arbitration date.
Defendants moved to extend discovery a fourth time until August 30,
2016, based on substitution of new defense counsel two weeks earlier. On April
15, 2016, Judge Kenneth J. Grispin granted the motion for exceptional
circumstances, set a new arbitration date of September 8, 2016, required
depositions of parties and witnesses to be completed by May 15, 2016, and
required service of plaintiffs' expert reports by June 25, 2016.
Plaintiffs did not move to further extend discovery or the June 25, 2016
deadline for serving an expert report. On July 1, 2016, defendants moved to
compel Brisma to attend an independent medical examination (IME) after he
failed to appear for a previously scheduled IME and to bar plaintiffs' expert
reports as out of time. Only two days before the return date, plaintiffs filed
untimely opposing papers and a cross-motion to extend discovery a fifth time
by ninety days. On July 22, 2016, Judge Walsh granted defendants' motion as
unopposed,2 ordering Brisma to attend an IME on August 10, 2016 and barring
plaintiffs from serving expert reports. The same day, Judge Walsh denied
2 Judge Walsh did not receive the opposing papers before granting defendants' motion as unopposed. A-1737-16T4 6 plaintiffs' cross-motion to extend discovery, noting Judge Grispin's April 15,
2016 order extending discovery for exceptional circumstances stated no further
extensions would be granted.
Plaintiffs moved for reconsideration of the bar on expert reports. On
September 16, 2016, Judge Walsh denied reconsideration. Plaintiffs' motion for
leave to appeal the July 22 and September 16, 2016 orders was denied on
November 17, 2016.
Meanwhile, defendants moved for summary judgment. On November 18,
2016, Judge Walsh granted summary judgment to defendants, dismissing all
claims and cross-claims against them with prejudice. This appeal followed.
In the interim, default was entered against co-defendants Louis and Lax
Records. On April 21, 2017, the trial court conducted a proof hearing and
entered default judgment against them in the amount of $184,458.99.
As to the orders pertaining to discovery, plaintiffs argue the trial court
erred by: (1) barring plaintiffs' expert report by not considering the unique
factual circumstances surrounding the missed deadline for submission of the
report; (2) not further extending discovery for exceptional circumstances by
applying the wrong standard and relying on erroneous facts and deadlines; (3)
denying reconsideration when it did not consider plaintiffs' out-of-time
opposing papers to the underlying motion despite receiving them prior to the
A-1737-16T4 7 return date and the submission of a reply brief by the moving defendants; and
(4) not compelling the deposition of defendants despite an agreement between
the parties.
Plaintiffs further argued the trial court erred by granting summary
judgment to defendants because: (1) there are genuine issues of triable fact; (2)
defendants breached a duty of care owed to plaintiffs by taking no reasonable
measures in a high crime area and where illegal gambling activity was taking
place on a regular basis; and (3) expert testimony was not required in a factually
simple case in which the common knowledge doctrine applied.
We first address the orders relating to the extension of discovery deadlines
and barring the testimony of plaintiffs' expert. "[W]e apply an abuse of
discretion standard to decisions made by . . . trial courts relating to matters of
discovery." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371
(2011) (citing Bender v. Adelson, 187 N.J. 411, 428 (2006)). "As it relates to
extensions of time for discovery, appellate courts . . . have likewise g enerally
applied a deferential standard in reviewing the decisions of trial courts." Ibid.
Ordinarily, "we decline to interfere with discretionary rulings involving
discovery unless it appears that an injustice has been done." Cunningham v.
Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988).
A-1737-16T4 8 Plaintiffs' second application, which sought a fifth extension of discovery,
was filed on July 20, 2016, more than three months after the April 15, 2016 order
scheduled an arbitration date. Therefore, plaintiffs' motion was governed by
Rule 4:24-1(c), which provides that "[n]o extension of the discovery period may
be permitted after an arbitration or trial date is fixed, unless exceptional
circumstances are shown."
To demonstrate exceptional circumstances, we generally require a
showing that the attorney diligently pursued the information sought during the
discovery period but was frustrated from obtaining the discovery by
circumstances largely beyond counsel's control. Bender, 187 N.J. at 429.
Specifically, the moving party must show: (1) why discovery was incomplete
and the diligence in pursuing discovery; (2) the additional discovery is essential;
(3) an explanation for why an extension was not sought within the original
discovery period; and (4) the circumstances were beyond the party's and
counsel's control. Garden Howe Urban Renewal Assocs., LLC v. HACBM
Architects Eng'r Planners, LLC, 439 N.J. Super. 446, 460 (App. Div. 2015).
Because an arbitration date had already been set, plaintiffs were required
to demonstrate "exceptional circumstances." The motion judge denied the
motion, finding plaintiffs had not demonstrated exceptional circumstances
justifying a further extension of discovery, including the deadline for serving
A-1737-16T4 9 expert reports. We agree. Plaintiffs did not demonstrate diligence in pursuing
discovery or obtaining an expert. Nor did plaintiffs explain how the
circumstances necessitating a further discovery extension were beyond counsel's
control. Thus, denial of a fifth extension of discovery and barring plaintiffs'
expert report was not an abuse of discretion.
Turning to plaintiffs' argument that the judge erred in denying their
motion for reconsideration, we review for an abuse of discretion. Cummings v.
Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). A motion for reconsideration
of an order must "state with specificity the basis on which it is made, including
a statement of the matters or controlling decisions which counsel believes the
court has overlooked or as to which it has erred." R. 4:49-2.
Reconsideration should not be sought "merely because of dissatisfaction
with a decision." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
Reconsideration should be utilized only for those cases which fall within that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid.]
In addition, "[r]econsideration cannot be used to expand the record and
reargue a motion. Reconsideration is only to point out 'the matters or controlling
A-1737-16T4 10 decisions which counsel believes the court has overlooked or as to which it has
erred.'" Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super.
299, 310 (App. Div. 2008) (quoting R. 4:49-2).
On reconsideration, plaintiffs requested the judge consider the arguments
raised in their untimely opposition to the original motion. Plaintiffs' opposing
papers were submitted so late they did not reach the motion judge before the
return date. Judge Walsh noted it is inappropriate for the court to consider
arguments on reconsideration that should have been raised in opposing papers
submitted in a timely fashion so as to reach the court before the original motion
was decided. We discern no abuse of discretion.
Finally, we address plaintiffs' argument that the trial court erred by
granting summary judgment to defendants. We review the grant of summary
judgment de novo, applying the same standard used by the trial court, which:
mandates that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).]
A-1737-16T4 11 We also determine "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). We owe no deference to the trial court's legal analysis or interpretation
of a statute. The Palisades At Ft. Lee Condo. Ass'n v. 100 Old Palisade, LLC,
230 N.J. 427, 442 (2017) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512
(2009)).
We affirm the grant of summary judgment to defendants substantially for
the reasons expressed by Judge Walsh in his cogent opinion from the bench on
November 18, 2016. We add the following comments.
In order to prevail in an action based on premises liability, "a plaintiff
must establish four elements: (1) that the defendant owed a duty of care; (2) that
the defendant breached that duty; (3) actual and proximate causation; and (4)
damages." Fernandes v. DAR Dev. Corp., Inc., 222 N.J. 390, 403-04 (2015)
(citing Townsend v. Pierre, 221 N.J. 36, 51 (2015)). In some cases, expert
testimony may be required to allow a jury to causally connect a particular injury
of a plaintiff to a breach by a defendant when the question involves complexities
A-1737-16T4 12 beyond the ken of an average juror. Quail v. Shop-Rite Supermarkets, Inc., 455
N.J. Super. 118, 135 (App. Div. 2018).
The owner or operator of a store or restaurant owes a duty of reasonable
care to its customers and patrons who are legally on its premises to provide a
reasonably safe place to shop or have dinner. Butler v. Acme Food Markets,
Inc., 89 N.J. 270, 275, 280-81 (1982). This duty does not make store or
restaurant owners or operators guarantors of a customer or patron's safety;
however, if criminal activity is reasonable foreseeable, the store or restaurant
has a duty to take reasonable steps to protect its customers and patrons from that
danger. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005); see
also Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502-05 (1997); Butler,
89 N.J. at 276, 280-81; Trentacost v. Brussel, 82 N.J. 214, 223 (1980).
Typically, this duty cannot be disclaimed, but when the relationship
between a defendant and a plaintiff is unclear, a court must consider
foreseeability, fairness, and the public interest in determining whether
imposition of a duty of care is appropriate. Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 439 (1993). However, in cases involving third-party violence and
a commercial defendant, the focus is "primarily on foreseeability." Clohesy,
149 N.J. at 505. To determine foreseeability, courts should employ a totality of
A-1737-16T4 13 the circumstances test, which may or may not include prior incidents of criminal
activity on or near the property. Id. at 507-08.
At oral argument before the motion judge, plaintiffs asserted it was "clear"
that expert testimony on the issue of constructive notice was not required.
Plaintiffs contend the motion judge erred because expert testimony was not
required. On the contrary, Judge Walsh agreed that expert testimony was not
required in a premises security case. However, he cautioned there must be
"enough material facts" for "a reasonable jury" to find negligent lack of security
"based on just the facts of the case without [] expert testimony."
The judge recognized "foreseeability can stem from prior criminal acts
that are lesser in degree than the one committed against the plaintiff," whether
occurring at the rental premises or in close proximity thereto. The judge found
there was insufficient evidence for a jury to do anything other than "speculate"
as to the landlord's liability, noting the robbery happened late at night while
Brisma and the others were playing cards, an activity "other than the intended
use of the business, which is a record store."
The judge concluded there was "no credible evidence on the record to
suggest that there was any sort of nefarious activity going on at the time that this
shooting took place or that the landlord had any knowledge of any illegal activity
that was taking place on the premises." While plaintiffs provided police reports
A-1737-16T4 14 of police calls to the area, the reports were provided after discovery had ended.
More importantly, the reports did not show "pervasive, criminal activity that this
landlord should have been aware of such that they should have taken additional
precautions inside the record store." Additionally, the robbery took place inside
the store. The landlords "had no conceivable knowledge that anything untoward
was going on" inside the store. Under the terms of the lease, the interior of the
store was controlled by the tenant, not the landlords. Considering the totality of
these circumstances, the judge concluded that there were insufficient material
facts for the landlord and the building owner to be liable.
The building where the robbery occurred does not have a parking lot or
parking facilities for customers. Under the terms of the lease, the retail space
rented to LAX Records was to be used only as a record shop. Paramount did
not have control over the interior of the space rented for LAX Records or the
restaurant under construction. Instead, Paramount only controlled the exterior
of the building. The robbery and shooting did not occur outside of the building
leased by Paramount to Louis. Nor did it occur in a public place. It occurred in
a restaurant under construction that was not yet open to the public. The adjacent
LAX Records, through which the robbers may have gained access to the
restaurant space, was not open for business at the time of the robbery. It was
A-1737-16T4 15 secured by magnetized entrance doorways rigged to an interior buzzer that must
be depressed to allow entry or exit.
None of the persons inside LAX Records or the restaurant space were
there as customers or patrons; nor were they business invitees. There is no
evidence Louis charged admission or any fees to participate in the card playing
or dominoes. At most, they were social guests who were there to recreate with
friends before leaving to hear live music at another location.
The record contains no evidence of any prior robberies of customers while
inside LAX Records or as they attempted to enter or leave the store. The robbery
occurred late at night when the store was not open. We are unaware of any
precedent in this State extending liability to a landlord for failure to provide
adequate security to social guests of a commercial tenant who were inside a
rented retail space during hours the tenant's store was not open for business.
These facts are readily distinguishable from the cases relied upon by
plaintiffs in which liability has been found due to failure to provide adequate
security to patrons of stores that are open for business while those patrons are
in common areas such as parking lots, at locations where there had been prior
robberies. We decline to expand the commercial landlord's duties to provide
greater security through the installation of security cameras or other methods
under the facts of this case.
A-1737-16T4 16 We are unable to discern any basis for liability of Colliers and New Vistas
as there is no indication in the record that they are owners, landlords, property
managers, or tenants of the property where the robbery and shooting occurred.
Plaintiffs' remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1737-16T4 17