Richard Garbacki v. Alshon Young ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0021-22
RICHARD GARBACKI,
Plaintiff-Appellant,
v.
ALSHON YOUNG, CHELSEA
MANAGEMENT, LLC, and
ECHELON GLEN 2016,
LLC, a/k/a ECHELON GLEN
APARTMENT HOMES,
Defendants-Respondents.
_____________________________
Argued December 4, 2023 – Decided January 12, 2024
Before Judges DeAlmeida, Berdote Byrne, and Bishop-
Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-3134-20.
Keith Andrew Peterson argued the cause for appellant
(Donelson, D'Alessandro & Peterson, LLC, attorneys;
Keith Andrew Peterson, on the briefs).
Jeffrey Francis Talbot argued the cause for respondents
(Law Offices of James H. Rohlfing, attorneys; James
Patrick Meissler, on the brief).
PER CURIAM
In this appeal from a summary judgment order in a personal injury action
alleging negligence, plaintiff argues the trial court erred in finding defendant-
landlords breached no duty to plaintiff when he was injured after he opened his
apartment door and was assaulted by an inebriated man. Because we find , after
reviewing the totality of the circumstances, the landlords could not have
foreseen this random, intentional assault, we concur with the trial court and
affirm.
I.
Like the motion court, we view the evidence in the landlords' summary
judgment motion in the light most favorable to plaintiff, the non-moving party.
Harz v. Borough of Spring Lake, 234 N.J. 317, 329 (2018); Rivera v. Cherry
Hill Towers, LLC, 474 N.J. Super. 234, 238 (App. Div. 2022). Plaintiff resided
at Echelon Glen Apartments in Vorhees Township, an apartment complex owned
and managed by defendants Echelon Glen and Chelsea management (landlords),
comprised of approximately 36 buildings and 432 apartments on 25 acres. On
November 8, 2018, plaintiff was in his apartment when defendant Alshon Young
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(Young) knocked on the door. Plaintiff was expecting his wife, who had left to
run an errand an hour prior, and did not look through the peephole before
opening the door.
Young believed he was knocking on his grandfather's door, where he was
staying. When plaintiff opened the door, Young, apparently believing plaintiff
was a stranger in his grandfather's apartment, pushed his way in and struck
plaintiff several times, injuring him. After the attack, Young fell asleep on the
couch. Plaintiff crawled out of his apartment and down the steps while bleeding
until emergency responders and the police arrived. Young eventually pleaded
guilty to a lesser charge for the aggravated assault on plaintiff.
Plaintiff filed a five-count complaint against Young, Echelon Glen, and
Chelsea Management. Counts one through four alleged assault and battery,
intentional infliction of emotional distress (IIED), negligent infliction of
emotional distress (NEID), and trespass against Young. Counts three and five
alleged NEID and premises liability against landlords.
The landlords moved for summary judgment after the close of discovery.
In their Rule 4:46-2(a) statement of material facts, they highlighted plaintiff's
deposition testimony stating he "never had any visitors or strange people or
solicitors or anything knock at the door." Additionally, they asserted the only
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police reports involving the apartment complex were from three false burglar
alarms in the management office in 2016, two years before the assault.
Plaintiff opposed summary judgment and emphasized two discrete
incidents of criminal activity at the Vista apartments, a neighboring property
also owned and managed by landlords, and a separate incident on a nearby road.
Citing deposition testimony from landlords' principal, plaintiff stated landlords
had "actual knowledge" of a prior similar criminal act of violence that occurred
at the nearby Vista Apartments.
The trial court granted summary judgment, dismissing landlords from the
case with prejudice, after finding the determinative issue was whether the
incident was a "foreseeable criminal act of third parties." In granting summary
judgment, the trial court ultimately found plaintiff voluntarily opened his door,
"there was no break in," and "[t]here was no inadequate lock on the door." The
court further held plaintiff failed to produce any evidence from which a jury
could find this type of criminal activity was foreseeable. This appeal followed.
II.
An appellate court reviews de novo orders granting summary judgment
and applies the same standard that governed the trial court's ruling. Lee v.
Brown, 232 N.J. 114, 126, (2018); see also Bhagat v. Bhagat, 217 N.J. 22, 38
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(2014). Summary judgment will be granted if, viewing the competent evidential
materials in the light most favorable to the non-moving party, "there is no
genuine issue of material fact and 'the moving party is entitled to a judgment or
order as a matter of law.'" Conley v. Guerrero, 228 N.J. 339, 346 (2017)
(quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)).
In order to demonstrate the existence of a "genuine issue [of] material
fact" and survive a summary judgment motion, "the opposing party [must] do
more than 'point[ ] to any fact in dispute.'" Globe Motor Co. v. Igdalev, 225
N.J. 469, 479 (2016) (emphasis omitted) (quoting Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 529 (1995)). "The practical effect of this rule is that
neither the motion court nor an appellate court can ignore the elements of the
cause of action or the evidential standard governing the cause of action."
Bhagat, 217 N.J. at 38.
Whether plaintiff is owed a legal duty is a question of law ripe for
summary judgment. See Delvalle v. Trino, 474 N.J. Super. 124, 135 (App. Div.
2022); see also Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502
(1997) (citing Carvalho v. Toll Bros. & Devs., 143 N.J. 565, 572 (1996); Kelly
v. Gwinnell, 96 N.J. 538, 552 (1984)).
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III.
Plaintiff argues the trial court resolved "disputed material facts in favor of
the moving party" by commingling two prior discrete events — the criminal act
at the Vista apartments and the shooting on a nearby road — into one event,
diminishing the significance of each event in the process. He argues the trial
court engaged in impermissible fact finding by conflating the two incidents. He
further argues those facts should have been resolved by the jury, because a
reasonable jury could find that two incidents of prior criminal acts, as opposed
to merely one, could make the difference "in the determination of the landlord's
duty."
Landlords argue neither Echelon Glen nor Chelsea Management had
notice of criminal activity to justify heightened security on the premises. They
argue even assuming the trial judge found two separate incidents of prior
criminal activity near the property, those incidents were so isolated and distinct
in time and manner from the present incident that no rational fact finder could
find defendants breached a duty to plaintiff. Additionally, they argue any
precautions landlords could have taken would not have prevented this incident.
We agree.
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The "mere relationship of landlord and tenant imposes no duty on the
landlord to safeguard the tenant from crime." Braitman v. Overlook Terrace
Corp., 68 N.J. 368, 387 (1975). However, "a residential landlord has a legal
duty to take reasonable security measures for tenant protection on the premises."
Scully v. Fitzgerald, 179 N.J. 114, 122 (2004) (citing Trentacost v. Brussel, 82
N.J. 214, 231 (1980)). "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." Trentacost, 82 N.J. at 222 (quoting
Rappaport v. Nichols, 31 N.J. 188, 201 (1959)). Foreseeability of harm is
"essential to holding a landlord potentially liable," E.S. for G.S. v. Brunswick
Inv. Ltd. P'ship, 469 N.J. Super. 279, 297 (App. Div. 2021), and is a fact-
sensitive inquiry, Coleman v. Martinez, 247 N.J. 319, 339 (2021).
Foreseeability of criminal incidents is determined by a review of the
totality of the circumstances. Clohesy, 149 N.J. at 507 (1997). In the case of a
residential landlord, harm may be reasonably foreseeable by a high incidence of
crime in the area, previous attempted break-ins, or failure to equip doors with
working locks. Trentacost, 82 N.J. at 222-23. Evidence of break-ins at other
apartments in a general area may also be considered. Braitman, 68 N.J. at 373,
382.
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Plaintiff's reliance upon Clohesy is misplaced. The Court in Clohesy
specifically rejected finding liability based solely on prior similar criminal
incidents, in favor of a totality of the circumstances analysis. Est. of Desir ex
rel. Estiverne v. Vertus, 214 N.J. 303, 319 (2013). Although prior criminal
incidents may be considered as a factor in assessing the totality of the
circumstances, the incidents must be numerous and sufficiently frequent to be
foreseeable and constitute, at minimum, constructive notice. Inapposite to
Clohesy, where "approximately sixty criminal incidents either on or near" the
supermarket premises occurred over the course of the preceding two years, there
were no prior reported incidents at the Echelon Glen apartment complex.
Plaintiff relies upon a report summarizing violent crimes in all of Voorhees from
2015 through 2018, and an eleven-page police report regarding a February 2017
shooting on a nearby road at a different apartment complex, stating a gun went
off by accident during an argument. Plaintiff also relies on deposition testimony
from landlord's principal, where he recalled "one incident" at the Vista
apartment complexes, not Echelon Glen. There was no documentation of that
incident other than this testimony, which may have been referring to the same
event – the misfiring of a gun on a nearby road.
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Regardless, even accepting plaintiff's position, these two discrete
incidents do not establish a duty. Plaintiff fails to show "the landlord[s] ha[d]
sufficient control to prevent [plaintiff's attack]." Scully, 179 N.J. at 123 (citing
Braitman, 68 N.J. at 382-83); see Peguero v. Tau Kappa Epsilon Loc. Chapter,
439 N.J. Super. 77, 87 (App. Div. 2015) (defendants owed no duty to protect
plaintiff from being shot by a third-party assailant). Plaintiff cannot articulate
any action landlords could have taken to prevent Young, who was staying with
his grandfather in another apartment at the complex, from knocking on the
wrong door. The totality of the circumstances here demonstrates a random,
unpreventable criminal act by a third party and plaintiff's suggestion, that the
landlords had a legal obligation to post nearby crime statistics, could not have
prevented plaintiff's injuries.
To the extent we have not addressed plaintiff's remaining arguments, they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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