JONATHAN LLOYD VS. UNDERPASS ENTERPRISES, INC., T/A THE HAREM (L-1503-14, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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
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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
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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.
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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).
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"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
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foreseen that plaintiff would attempt to intercede in the
altercation." Ibid.
Affirmed.
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