Peguero v. Tau Kappa Epsilon Local Chapter
| Decision Date | 15 January 2015 |
| Docket Number | DOCKET NO. A-5419-12T4 |
| Citation | 106 A.3d 565,439 N.J.Super. 77 |
| Parties | Felix PEGUERO, Plaintiff–Appellant/Cross–Respondent, v. TAU KAPPA EPSILON LOCAL CHAPTER, Tau Kappa Epsilon national chapter, Greg Spinner, and Thomas Price, Defendants–Respondents, and Carl Tattoli and Alex De Sousa, improperly impleaded as Alex De Souza, Defendants–Respondents/Cross–Appellants, and Charlton Stanton, Jesse Alava, Elio Bustamonte, and Matthew Filo, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
Michael A. Orozco argued the cause for appellant/cross-respondent Felix Peguero (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Mr. Orozco and Terence Steed, Newark, on the briefs).
David P. Bateman (Bateman Caliendo, LLC) argued the cause for respondents Tau Kappa Epsilon local chapter & Tau Kappa Epsilon national chapter (Mr. Bateman and Craig M. Caliendo (Bateman Caliendo, LLC), attorneys; Messrs. Bateman and Caliendo, on the brief).
David A. Christie, Jr., Shrewsbury, argued the cause for respondent/cross-appellant Carl Tattoli (Law Office of Debra Hart, attorneys; Mr. Christie, of counsel and on the brief).
William C. Bochet, Fair Lawn, argued the cause for respondent/cross-appellant Alex De Sousa (Muscarella, Bochet, Edwards & D'Alessandro, P.C., attorneys; Mr. Bochet, on the brief).
Respondents Greg Spinner and Thomas Price have not filed briefs.
Before Judges SABATINO, GUADAGNO, and LEONE.
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal implicates the legal duties that a college fraternity and its officers or members may owe to guests who are injured while attending social gatherings at premises used as a fraternity house.
Plaintiff attended a large party hosted at a private residence rented by several fraternity members. After consuming several drinks, plaintiff interceded in an argument that erupted in the backyard among other persons who were at the party. While trying to assist a friend involved in that argument, plaintiff was shot and wounded
by another person who was at the party. The shooter was never apprehended or identified. There was no evidence that the fraternity had any past incidents involving guns on the premises or involving violent criminal behavior.
Plaintiff brought a negligence action against the national fraternity, the local fraternity chapter, and several students who were officers or members of the fraternity. Defendants moved for summary judgment, which the trial court granted.
We affirm the summary judgment order because we agree with the motion judge that there was no evidence showing that it was reasonably foreseeable that plaintiff would have been shot by a third party while attending the fraternity event. Hence, defendants who leased the house breached no legal duty to plaintiff in these circumstances and were therefore entitled to a judgment dismissing his negligence claims.
Between 10:30 p.m. and 11:00 p.m. on Friday, September 5, 2008, plaintiff Felix Peguero and a friend arrived at a large party taking place at a house in Elizabeth. The party was being hosted by members of the local chapter of Tau Kappa Epsilon, Tau Lambda (“TKE local”) of the Tau Kappa Epsilon (“TKE national”) fraternity.1 TKE local is chartered by TKE national and is affiliated with Kean University2 in Elizabeth. Both TKE national and TKE local are nonprofit organizations, and both entities were named as co-defendants in this case.
According to deposition testimony of TKE local's vice president, who joined TKE the year after the shooting, seven fraternity brothers3 were renting the house from the property owner as of the fall of 2008. The owner did not live on the property, nor did any other tenants. The rental arrangements were informal and not embodied in a written lease. The residence was not recognized by TKE national organization as an “official chapter house,” although the record suggests that the house was regarded by students and other guests as having an affiliation with TKE.
Plaintiff, who was twenty-one years old and employed at the time of the shooting, was neither a member of TKE nor a student at Kean University or any other college. However, he had attended social events at the house approximately fifteen to twenty times in the past. When there, he noticed items in the house with TKE insignia. Plaintiff also recalled that the fraternity brothers at times would chant when parties took place there. The friend who accompanied plaintiff to the house on the night of the shooting also was not a Kean student nor a member of TKE.
The parties dispute the nature of the social gathering on the night in question. Plaintiff believed that it was a fraternity-sponsored event. The TKE defendants disagree, contending that the occasion was only a birthday party for a female friend.
In any event, the record indicates that the party drew a large crowd. Plaintiff estimated at his deposition that seventy-five to one hundred guests were in attendance. Certifications from two other witnesses gave a higher figure, although we will use plaintiff's estimate for purposes of our analysis.
According to plaintiff, when he arrived at the party, he paid a $5.00 charge and received a red plastic cup, which he used for drinking beer at the event. He contends that he paid a similar “cover charge” when he previously attended at least five other events at the house. Defendants dispute the charge and deny that any such charge, if it were imposed, related to the provision of alcohol.4 By his own admission, plaintiff drank about five-and-a-half cups of beer between the time of his arrival and the shooting incident.
At about 1:30 a.m., a fight broke out in the backyard of the premises. Plaintiff decided to go outside with one or more of the fraternity brothers and attempt, as he phrased it, to “diffuse” the situation. As plaintiff recounted at his deposition:
According to plaintiff, the fight initially involved about five people, some of whom he perceived to be together. He recalled that after he attempted to intercede, he observed for the first time a person holding a handgun:
Upon picking up his friend, plaintiff was punched and then shot. As he described it:
Plaintiff sustained one gunshot wound
to the chest. He eventually learned that the bullet had grazed his spine, punctured his lung and diaphragm, and exited through his right rib cage. After the bullet passed through plaintiff, it ricocheted and injured a member of the fraternity.7
The identity of the person who shot plaintiff is still unknown. Apparently, plaintiff had observed the assailant at the party before the melee. Two other guests who had been at the party confirmed in certifications that they both recalled seeing the assailant about thirty minutes before the shooting. Plaintiff described the individual as someone who did not “seem like he was meshing with the party.” There was no proof that the shooter was a minor or a visibly intoxicated person who had been served alcohol at the party.
Plaintiff further recalled in his deposition that the shooter was accompanied by four other men, only one of whom he could describe with any detail. Although he was unsure of the criteria used that night for gaining admittance to the party, plaintiff presumed that the shooter was a friend of someone else who was in attendance.
There is no claim, nor any indication in the record, that the shooter was a fraternity member or a Kean student. There is also no proof that he was a minor, or that he had been served alcohol at the event. Nor is there any proof that he had been seen by plaintiff or any of the defendants carrying a gun on the premises, until he brandished and fired it during the backyard altercation.
Plaintiff had not seen a gun on the premises during any of his multiple prior visits. Nor is there evidence that any other witnesses had seen a gun there previously. Plaintiff did recall once seeing a serrated knife in a fraternity brother's bedroom on a prior occasion, but he had no evidence that the knife had been used to harm anyone.
The only prior incident of violent conduct at the house that plaintiff could specifically recall was an incident in which a male had whispered something to a female, and the female “smacked him.” Plaintiff...
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