RYAN FELEGI VS. STONEY BROOK GRILLEÂ (L-349-13, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0289-15T3
RYAN FELEGI,
Plaintiff-Appellant,
v.
STONEY BROOK GRILLE,
Defendant-Respondent,
and
CHRISTOPHER KOSOVICH,
Defendant.
__________________________________
Argued May 23, 2017 - Decided June 26, 2017
Before Judges Koblitz and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. L-349-13.
Kyle G. Schwartz argued the cause for
appellant.
AnnMarie Flores argued the cause for
respondent MK Food Service d/b/a Stoney Brooke
Grille (Gage Fiore, LLC, attorneys; Ms.
Flores, on the brief).
PER CURIAM
Plaintiff Ryan Felegi appeals the trial court's June 26, 2015
order, granting summary judgment in favor of defendant MK Food
Service d/b/a Stoney Brooke Grille, improperly pled as Stoney
Brook Grille (Grille). Plaintiff also appeals the August 7, 2015
order denying his motion for reconsideration. We affirm both
orders.
Plaintiff filed a complaint alleging personal injuries caused
by defendant Christopher Kosovich arising from a stabbing outside
a restaurant known as the Grille. Plaintiff claimed the Grille
was negligent in providing security to its patrons and was
negligent in serving alcohol to a visibly intoxicated person in
violation of the New Jersey Licensed Alcoholic Beverage Server
Fair Liability Act, N.J.S.A. 2A:22A-1 to -7 (Dram Shop Act).
To support his negligent security claim, plaintiff retained
an expert, who opined that the Grille had a duty "to provide a
safe environment for its guests." According to plaintiff's
security expert, the Grille's failure to hire properly trained
security personnel and provide security in the parking lot was a
breach of the Grille's duty of care.
Plaintiff also claimed that the Grille's service of alcohol
to a visibly intoxicated Kosovich proximately caused his injuries.
No expert report was proffered to support plaintiff's Dram Shop
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Act claim against the Grille. Rather, plaintiff stated witnesses
would testify at trial that Kosovich was visibly intoxicated.
We review the facts in a light most favorable to plaintiff,
and therefore the following discussion summarizes plaintiff's
version of the relevant events. Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995). The Grille is a family-style
restaurant that provided a disc jockey (DJ) on Friday evenings
after 10:00 p.m. Although the Grille stopped serving food at
10:00 p.m. on Friday, the bar remained open for the purchase of
alcohol. The Grille also removed the dining tables to create a
dance club atmosphere.
The Grille did not hire private security for its DJ
entertainment. Friends of the Grille's owner checked
identification documentation to ensure that patrons were over
twenty-one years of age.
One Friday evening, plaintiff, his brother Robert, and two
friends went to the Grille for the DJ entertainment. Plaintiff
saw Kosovich at the Grille. Plaintiff's brother had a prior
incident with Kosovich. However, plaintiff assured Kosovich that
he and his companions had no intention of causing trouble that
evening.
Just prior to closing, someone told plaintiff, who was inside
the Grille, that plaintiff's brother and Kosovich were about to
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fight outside the Grille. One of the Grille's managers, Robert
Long, saw plaintiff and other individuals run from the bar to the
parking lot. An angry crowd had surrounded Kosovich. Plaintiff
told Kosovich to leave the Grille parking lot before something
happened. Kosovich was leaving when Long grabbed plaintiff. It
was at that moment that Kosovich swung a knife cutting both
plaintiff and Long.1
Upon completion of discovery, the Grille moved for summary
judgment. In a letter opinion, Assignment Judge Yolanda Ciccone
granted the Grille's motion and dismissed plaintiff's claims with
prejudice.
On the negligent security claim, the judge found that because
no criminal activity occurred at or near the Grille for a three-
year period prior to plaintiff's injury, the claim failed. While
plaintiff argued that security staff was needed outside the Grille
to "deter incidents," the judge rejected plaintiff's argument
because there were no incidents outside the Grille prior to
plaintiff's injury giving rise to a legal duty.
Similarly, the judge rejected plaintiff's argument that the
Grille's change in use from a restaurant establishment to a DJ
1
For summary judgment purposes, we must accept plaintiff's version
of the facts. However, we note that Kosovich denied being the
aggressor and claimed he acted in self-defense after plaintiff and
his brother attacked him.
4 A-0289-15T3
dance club altered the Grille's legal duty to provide adequate
security. The judge found that plaintiff was unable to articulate
any legal support for such a theory.
The judge also dismissed plaintiff's Dram Shop Act claim,
concluding that plaintiff failed to establish Kosovich was visibly
intoxicated. At best, plaintiff offered evidence that Kosovich
had been drinking, but submitted no evidence to support a claim
of visible intoxication. Plaintiff and others at the Grille were
unable to state the amount of alcohol consumed by Kosovich.
Plaintiff argued that additional depositions were needed to
establish that the Grille served alcohol to Kosovich after he was
visibly intoxicated. However, the twice-extended discovery period
expired prior to the Grille filing for summary judgment. Plaintiff
submitted no affidavits or certifications from individuals who
would testify as to Kosovich's visible intoxication.
Plaintiff moved for reconsideration, and Judge Ciccone denied
the motion. The judge ruled that plaintiff did not satisfy Rule
4:49-2 governing a motion for reconsideration. The judge
determined plaintiff was rearguing matters addressed by the court
in granting summary judgment. The judge found plaintiff failed
to cite any relevant evidence that the court did not consider or
failed to appreciate. Nor did plaintiff articulate why the judge's
summary judgment decision was palpably incorrect or irrational.
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On appeal, plaintiff alleges that the judge abused her
discretion as to both motions and disputed material facts warranted
denial of the Grille's motion for summary judgment.
Appellate review of an order granting summary judgment is de
novo, applying the same standard governing the trial court.
Cypress Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 414
(2016); Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405
(2014). Summary judgment must be granted if there is no genuine
issue of material fact and the moving party is entitled to judgment
as a matter of law. R. 4:46-2(c). Thus, we consider "whether the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso,
P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J.
at 536). Courts reviewing summary judgment motions must "consider
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." Brill, supra, 142 N.J.
at 540. "If there is no genuine issue of material fact," an
appellate court must then "decide whether the trial court correctly
interpreted the law." DepoLink Court Reporting & Litig. Support
Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013)
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(citations omitted). We accord no deference to the trial judge's
legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013)
(citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).
A motion for reconsideration is reviewed for abuse of
discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div.
1996). Reconsideration is appropriate only in those cases "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." D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
Applying these standards, we conclude the Grille was entitled
to summary judgment because plaintiff failed to establish the
elements necessary to prevail on his negligent security claim as
well as his Dram Shop Act claim. We also conclude that the judge
properly denied plaintiff's motion for reconsideration.
In general, to sustain a negligence claim, a plaintiff must
prove the following elements: "(1) a duty of care, (2) a breach
of that duty, (3) proximate cause, and (4) actual damages."
Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty.
of Essex, 196 N.J. 569, 584 (2008)). Whether a duty exists is a
question of law to be determined by the court. Clohesy v. Food
Circus Supermarkets, 149 N.J. 496, 502 (1997). Imposition of a
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legal duty to exercise care requires establishing foreseeability
of harm. Ibid. Business owners, such as the Grille, "have a duty
to protect patrons . . . from foreseeable criminal acts of third
parties occurring on their premises." Id. at 504; see also Butler
v. Acme Markets, 89 N.J. 270, 280 (1982); Peguero v. Tau Kappa
Epsilon Local Chapter, 439 N.J. Super. 77, 91 (App. Div. 2015)
(the duty question focuses on the foreseeability of injuries caused
by third parties).
The judge properly concluded that plaintiff failed to
demonstrate foreseeability by way of prior incidents to establish
a duty of care. The judge found that plaintiff was unable to show
any criminal conduct at or near the Grille during the three years
prior to the incident. The only incidents involved public
urination and/or instances of vomiting. Plaintiff did not claim
that the geographic location of the Grille or the layout of the
parking lot made the incident between plaintiff and Kosovich
foreseeable.
On appeal, plaintiff argues the judge overlooked two cases
in support of his negligent security claim, Bencivenga v.
J.J.A.M.M., Inc., 258 N.J. Super. 399 (App. Div.), certif. denied,
130 N.J. 598 (1992) and Blazovic v. Andrich, 124 N.J. 90 (1991).
We find plaintiff's reliance on these cases misplaced. The
Bencivenga and Blazovic cases address apportionment of fault under
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the Comparative Negligence Act, not the duty of a business owner
to protect against criminal acts of a third party. See Clohesy,
supra, 149 N.J. at 516-17. Simply because there was a crowd at
the Grille,2 coupled with the service of alcohol and live
entertainment, does not prove a reasonably foreseeable link to
criminal behavior.
To prevail on a Dram Shop Act claim, a party must present
evidence that the establishment served alcohol to a visibly
intoxicated individual. N.J.S.A. 2A:22A-5; see also Halvorsen v.
Villamil, 429 N.J. Super. 568, 575 (App. Div. 2013). The Dram
Shop Act defines "visibly intoxicated" as "a state of intoxication
accompanied by a perceptible act or series of acts which present
clear signs of intoxication." N.J.S.A. 2A:22A-3.
In support of his Dram Shop Act claim, plaintiff offered
Kosovich's statement to the police after the incident that he was
drunk. Also, plaintiff's friend guessed Kosovich was drunk because
everyone at the Grille was drunk. Based on these statements,
plaintiff argued the judge should have allowed a jury to infer
that Kosovich was visibly intoxicated.
The judge properly ruled that mere evidence of drinking failed
to establish visible intoxication sufficient to prevail on a Dram
2
Witnesses estimated that the number of people at the Grille
ranged between 100 to over 250 people.
9 A-0289-15T3
Shop Act claim. Mazzacano v. Estate of Kinnerman, 197 N.J. 307,
320-21 (2009). Plaintiff presented no direct or circumstantial
evidence supporting his claim that Kosovich was visibly
intoxicated. Those who saw Kosovich did not observe him slurring
his speech or behaving erratically. Plaintiff also failed to
submit an expert toxicology report to substantiate a claim of
visible intoxication. Absent direct evidence of visible
intoxication, or an expert report establishing visible
intoxication based upon the amount of alcohol consumed by Kosovich,
when the alcohol was consumed, Kosovich's body weight and his
tolerance to alcohol, the judge correctly dismissed the Dram Shop
Act claim.
Lastly, we find the judge did not abuse her discretion in
denying plaintiff's motion for reconsideration. Plaintiff failed
to establish any of the bases for reconsideration. R. 4:49-2.
"[A] motion for reconsideration provides the court, and not the
litigant, with an opportunity to take a second bite at the apple
to correct errors inherent in a prior ruling." Medina v. Pitta,
442 N.J. Super. 1, 18 (App. Div.), certif. denied, 223 N.J. 555(2015).
Plaintiff's argument on reconsideration that the judge
overlooked two key cases and additional evidence is flawed. First,
the cases and evidence presented by plaintiff were not new, and
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were available to plaintiff in opposing the motion for summary
judgment. It was improper for plaintiff to raise those cases and
evidence for the first time in his reconsideration motion. Ibid.Second, the cases that plaintiff claimed were overlooked by the
judge are irrelevant to disposition of the Grille's motion.
Affirmed.
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