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Former Property Manager of Apartment Complex Found Not Liable to Plaintiff Who Was Shot by Estranged Husband While at Complex

Plaintiff Fritzy Rivera was leaving her friend’s apartment at the Cherry Hill Towers apartment complex when she was shot by her estranged husband. He had accessed the apartment complex through an open security gate. The issue in Rivera v. Cherry Hill Towers, LLC, 2022 N.J. Super. LEXIS 142 (App. Div. Dec. 12, 2022) was whether the defendant Vikco, Inc., as the former property management company, could be liable for the shooting based upon the practice that it had established to leave open the security gate after hours.

Vikco was not the property manager at the time of the shooting. However, for 18 years, it served as the property manager for this 434 residential apartment complex. The apartment complex was fully enclosed by a security gate with one central entrance point and three exits. When it was the property manager, Vikco was responsible to ensure the safety of its residents and guests. The complex was sold in October 2018 and when new ownership took over, AION Management assumed all Vikco’s property management duties.

Just seventeen days later, Plaintiff’s estranged husband, Brian Walker, drove through the open security gate at the front entrance at about 11:30 pm to lay in wait for Plaintiff to leave the complex. He confronted her in the parking lot and shot her in the head, chest, and arm.

While Vikco was the property manager, the front gate was unmanned and generally left open during leasing office hours.  After hours, which would be after 5pm, the gate was supposed to be closed with access restricted to residents. AION apparently continued Vikco’s practice of leaving the gate unsecured after hours.

Plaintiff Rivera sued Vikco, and other defendants, for alleged negligence in providing security at Cherry Hill Towers, a high crime area, claiming that was the proximate cause of the assault. Vikco filed for a summary judgment, arguing that it could not be held liable for the assault because its property management contract had ended. The trial court judge denied the motion, finding that it was a jury question as to whether it owed a duty to plaintiff in not taking steps to prevent the assault.

Vikco filed for an interlocutory appeal over this decision and the Appellate Division granted leave for Vikco to appeal. Upon reviewing the appeal, in a published decision, the Appellate Division reversed the trial court ruling, finding that Vikco was entitled to a summary judgment dismissal of the lawsuit.

First, the Appellate Division found that the trial court judge mistakenly found that it was up to the jury to decide whether a duty was owed to Plaintiff. The Court noted that whether a duty is owed to another party is for the court to decide, not the jury. While Vikco was the property manager, Vikco had a duty to prove safe premises by “taking reasonable security precautions to protect [Cherry Hill Towers] tenants and guests from foreseeable criminal acts.”

But, once Vikco was no longer the property manager, it had no relationship with Plaintiff and no ability to exercise control over the complex.  The Court found that there was “no public interest in imposing security responsibility upon Vikco for conduct that was under the full control of AION without input from Vikco.”

The Court rejected the Plaintiff’s argument that Vikco should be held responsible for the security measures continued by AION. There were no allegations that any deficiencies in that security system could not have been remedied by AION after it took over as the property manager. Further, Vikco has no contractual obligation as to the management of the property at the time of the assault. It would not have been able to prevent the assault because it was no longer responsible for the safety of Cherry Hill Towers’ residents and guests.  

The Court pointed out that New Jersey case law has not addressed “whether an apartment complex’s property manager has a common law duty to residents and their guests to provide a safe environment after the property manager’s duties are discontinued.” The Appellate Division further stated that “[u]nder the circumstances presented, we see no reason to do so now.”

Because it found that Vikco did not owe a duty to Plaintiff when she was assaulted, the Court ruled that Vikco was entitled to a summary judgment. Hence, the trial court judge’s decision was reversed.

Appellate Division Reverses Denial of Summary Judgment to Social Hosts for Plaintiffs’ Son Drowning in Their Pool

By: Erika Vasant, Law Clerk
Editor: Betsy G. Ramos, Esq.

In August 2017, intoxicated, twenty-six year old Raniel Hernandez attended a party, where he subsequently drowned after jumping into a pool. Earlier this week, the New Jersey Appellate Division, addressed the tort claims arising from the tragic accident. Plaintiffs Silvana Lansigan Delvalle and Ralph Hernandez, parents of the deceased Raniel Hernandez, sued with claims of common law negligence, intentional infliction of emotional distress, as well as a Portee claim regarding their son’s death. The issued on appeal in Delvalle v. Trino, 2022 N.J. Super. LEXIS 139 (App. Div. Dec. 6, 2022) was whether the defendant homeowners, Henry and Charlene Trino, and their son, Airel Trino, (and some of the guests) were liable as social hosts for Raniel’s death.  

Airel Trino hosted a party at his parents’ house, and allowed attendees to use the swimming pool if they wished to. He purchased alcohol for guests, and about 60 people attended, including Raniel. During the party, a visibly intoxicated Raniel entered the pool, after Wendy, another attendee, agreed to let him throw her into the pool – an activity he had planned weeks before.  Afterwards, Wendy was exiting the pool when she noticed that Raniel was not getting out. She tried to pull Raniel out, but was unsuccessful. Kevin Garcia, another attendee, jumped in and tried to rescue Raniel, but all efforts to save him were ineffective. After about 25 minutes, 9-1-1 was called. The autopsy report showed that Raniel’s blood alcohol content (BAC) was significantly high, causing the accidental drowning and cardiac arrest.

At the close of discovery, the defendants filed for a summary judgment dismissal, which was denied at the trial court level. However, leave to appeal was granted and, in a published decision, the Appellate Division reversed those decisions.

In addressing the defendants’ appeal, the Appellate Division found that there was nothing in the record that indicated that Garcia had any influence on Raniel’s decision to jump into the pool. More specifically, Garcia owed no statutory duty to save Raniel, and the Social Host Liability Act (SHLA), did not apply either, because Garcia was not a host. Even though Garcia attempted to rescue Raniel, his rescue efforts were protected by the Good Samaritan Act. The plaintiffs failed to allege any evidence of roughhousing or altercations between Garcia and Raniel. Although Garcia left the party after attempting to rescue Raniel, he was not fleeing. Instead he left the premises to escort his underage girlfriend away to avoid being cited for underage drinking. In consideration of all of these facts, Garcia was entitled to summary judgment, and the Appellate Division reversed the denial of summary judgment for this defendant.

In regards to the Trinos defendants the Appellate Division came to the same conclusion: that there was no genuine issue of fact that would justify the denial of a grant of summary judgment. SHLA did not apply to the Trinos because that statute is exclusive to injuries related to the negligent operation of a motor vehicle. SHLA is not triggered simply because a social host decided to serve alcohol. Furthermore, the Trinos did not owe a duty to Raniel since there was no public safety concern of him ever operating a motor vehicle in the situation.  Nonetheless, the Court noted that the plaintiffs may have a potential claim regarding a failure to warn. However, there was no case law suggesting that socials hosts have a duty to “prevent a voluntarily intoxicated adult guest from going swimming to safeguard the guest’s own well-being.” Although the plaintiffs contend that the Trinos should have had a lifeguard at the pool party, there was no regulation or case law suggesting it was required. Underage drinking at the party, although a concern, was not at issue in this case, because Raniel was a twenty-six-year-old ex-Marine.

The Appellate Division also found summary judgment should have been granted for the claims regarding intentional infliction of emotional distress. Plaintiffs allege that there was a deliberate attempt to cover up Raniel’s death since no one told them about what happened to their son after they arrived. This behavior does not, however, amount to extreme and outrageous as defined by case law. The plaintiffs also failed to allege sufficient facts for a Portee claim, because Ralph was not present when his son drowned.

Federal Judge Finds Mode of Operation Rule Does Not Apply to Accident Involving Motorized Cart in Store

Plaintiff Talia Pena claimed that, while shopping in a store, she was struck by an unidentified customer operating a motorized shopping cart. While bending over to smell body sprays on a lower shelf near the self-checkout lanes, an unidentified female customer drove a motorized cart into her. The woman did not see Plaintiff because her cart was stacked so high with paper products, they blocked the woman’s vision. The issue in the District Court of New Jersey Pena case (2022 U.S. Dist. LEXIS 215009 Nov. 29, 2022), was whether the mode of operation rule would apply to this accident, which would obviate the need for the Plaintiff to prove that the store had actual or constructive notice of the alleged dangerous condition.

The defendant store filed for a summary judgment, arguing that the mode of operation rule did not apply and, because Plaintiff could not demonstrate actual or constructive notice of the “dangerous condition,” it should be granted a summary judgment dismissal.

The District Court noted the general duty under New Jersey law that “business owners owe to invitees a duty of reasonable care to provide a safe environment for doing that which is within the scope of the invitation.”  That duty would include an obligation “to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” The plaintiff must prove that “the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”

The District Court also noted that “a plaintiff need not prove actual or constructive notice under the ‘mode of operation’ rule, which applies ‘when a substantial risk of injury is inherent in a business operator’s method of doing business.’” For that rule to apply, “the plaintiff must show there was a ‘reasonable probability’ that the dangerous condition would occur ‘as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.’”

The Court rejected the Plaintiff’s argument that the mode of operation rule should apply to the use of a motorized cart. Merely providing shopping carts as a self-service equipment “does not alone increase the risk of a dangerous condition to warrant application of the mode of operation rule.” The District Court found that the rule would not apply because Plaintiff was unable to produce any evidence to support her position that supplying motorized carts, as opposed to non-motorized shopping carts, “is an aspect of the store’s self-service operation that creates a substantial risk of injury.”

Further, the Plaintiff presented no evidence that the store had actual notice of the alleged dangerous condition. As for constructive notice, Plaintiff had produced no evidence of how long this unidentified customer had over stacked her cart before Plaintiff’s accident. Thus, without the application of the mode of operation rule, and Plaintiff being unable to prove that the store had actual or constructive notice of the alleged hazard, the District Court granted the defendant’s motion for summary judgment, dismissing the lawsuit.

Plaintiff’s Loading Dock Injury Claim Dismissed Due To Failure To Obtain Liability Expert Report

Plaintiff Paomar Konteh was picking up a shipment at defendant McCollister’s Technical Services Inc.’s warehouse in New Jersey when he suffered an injury attempting to roll the defendant’s computer cabinets from the loading dock onto the back of his truck.  He sued the defendant McCollister for his injuries based upon several theories of liability.  The issue in Konteh v. McCollister’s Tech. Servs., 2022 N.J. Super. Unpub. LEXIS 888 (App. Div. May 24, 2022) was whether the plaintiff’s claim was subject to a dismissal for failure to obtain an expert report as to liability. 

The plaintiff’s accident occurred when defendant’s warehouse employee asked plaintiff to help him load the defendant’s cabinets onto the back of the truck.  The plaintiff was transporting in his truck certain four-wheeled computer cabinets, known as “Netshelters.”  The Netshelters can weigh up to 3000 pounds.   As the two men were attempting to roll the first cabinet from the loading dock onto the back of the truck, it fell on plaintiff, causing him injuries. 

Plaintiff had a number of theories as to defendant’s liability, including whether the ramp was defective, whether the other defendant’s employee did not properly align the ramp, whether the defendant’s employee should not have continued pushing once the wheel became stuck, whether the defendant’s employee pushed the cabinet with too much force, whether the defendant did not have sufficient personnel for the loading, whether or not the defendant heeded warnings and had proper safety measures, and whether the defendant should have had a lift for heavy merchandise.

In answers to discovery, plaintiff stated that he was caused to fall when the wheel of the cabinet became stuck in a crack or separation in the floor.   The defendant produced an OSHA report confirming that the dock plates were in proper working condition in the month prior to the accident.  In his deposition, plaintiff acknowledged that he had previously loaded Netshelters with the assistance of only one other person. 

The truck was connected to the warehouse loading dock via a dock plate that automatically lifted and lowered to form a ramp between the two.  However, even when properly set, it left a gap.  Plaintiff stated that the defendant’s out of state workers (when he made out of state deliveries) always covered the gap with a piece of metal, unlike in New Jersey, where they simply pushed “with power” to get the Netshelter onto the dock plate.  When the Netshelter’s first wheel rolled into the gap, it became stuck and fell on him.

The plaintiff never produced an expert report, despite having discovery extended twice for him to do so.  Following the close of discovery, the trial judge entered an order, barring the plaintiff from serving any liability expert report.  That motion was unopposed.

The defendant filed a summary judgment motion, arguing that the case should be dismissed due to the plaintiff’s failure to produce a liability expert report.  The trial judge pointed out that it is the “plaintiff’s burden to prove that the dock plate used by the defendant was defective or dangerous or substandard.”  The plaintiff’s theory that the elevation difference between the loading dock and the hydraulic dock plate was dangerous or defective did require expert testimony.  It would be “beyond the ken of an average juror to understand what was defective or dangerous.”  Further, plaintiff was aware of the height difference and there was no indication that plaintiff was concerned about a defective condition on the property.  Thus, the trial court judge ruled that the plaintiff’s claim would be dismissed for the failure to produce a liability expert report.

This decision was appealed to the Appellate Division.  The standard utilized by the Appellate Division to review the trial court ruling to dismiss the case due to the failure to produce an expert report was the “abuse of discretion” standard.  Under the case law, an “abuse of discretion occurs when a decision is made without a rational explanation, inexplicably departed from established policies, are rested on an impermissible basis.” 

The Appellate Division pointed out that in most negligence cases, a plaintiff is not required to retain an expert to establish the applicable standard of care.  However, in some cases, a jury would not be competent to supply the standard by which to evaluate the defendant’s conduct and therefore, the plaintiff must present the testimony of a liability expert.  To determine whether a plaintiff must produce a liability expert, a court must consider “whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the defendant was reasonable.” 

Here, the Appellate Division agreed with the trial court judge that the plaintiff was required to retain an expert to be able to pursue his claim.  The Court pointed out that “although the average person knows from common experience that a wheel can become stuck in a gap, causing a wheeled object to topple, the average person is not equipped to consider the physics of loading unusually heavy objects, and the point at which a gap between flooring, or changes in elevation, become dangerous.”  Further, because the plaintiff advanced different theories of liability, it could not be “reasonably expected” for a jury to be able to decide liability based upon those different theories.

The Court also noted that, in a different context, an accident from pushing a heavy object over irregular flooring might not require expert testimony.  But here, OSHA had found nothing deficient in the dock ramp and the plaintiff had used this ramp many times before to maneuver a Netshelter onto the back of his truck with just one person to help him.  Because the plaintiff was uncertain as to what caused the accident, and his description conflicted with the defendant employee’s description and involved trucking industry standards, the Court found that the need for an expert report and expert testimony was clear.  Thus, the Appellate Division ruled that the judge’s decision was not an abuse of discretion and affirmed the decision, dismissing the case. 

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