Saltsman v. Corazo

• Decision Date: 29 December 1998
• Citation: 317 NJ Super. 237,721 A.2d 1000
• Parties: Douglas SALTSMAN, Plaintiff-Appellant, v. Michael J. CORAZO, Paul L. Masciocchi, Albert and Elizabeth Giannone, Defendants, and John J. Eichman, Peter Midiri, Josephine Midiri, Charles Verdi, Nicki Jeff, Inc., d/b/a The Greens At Delran, a New Jersey Corporation, Defendants-Respondents.
• Court: New Jersey Superior Court

721 A.2d 1000

317 NJ Super. 237

Douglas SALTSMAN, Plaintiff-Appellant, v. Michael J. CORAZO, Paul L. Masciocchi, Albert and Elizabeth Giannone, Defendants, and John J. Eichman, Peter Midiri, Josephine Midiri, Charles Verdi, Nicki Jeff, Inc., d/b/a The Greens At Delran, a New Jersey Corporation, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued October 27, 1998.

Decided December 29, 1998.

Betsy Bisset, Berlin, for plaintiff-appellant (Maressa, Goldstein, Birsner, Patterson, Drinkwater & Oddo, attorneys; Benjamin Goldstein, on the brief).

Stuart M. Goldstein, Philadelphia, PA, for defendants-respondents (Hollstein, Keating, Cattell, Johnson & Goldstein, attorneys; Mr. Goldstein, on the brief).

Before Judges MUIR, Jr., KEEFE and COBURN. The opinion of the court was delivered by KEEFE, J.A.D

Plaintiff Doug Saltsman appeals from the entry of summary judgment in favor of defendants The Greens at Delran ("The Greens"), Nicki Jeff, Inc., John J. Eichman, Peter and Josephine Midiri, and Charles Verdi. The issues presented are whether plaintiff has demonstrated a genuine issue of fact concerning defendants' duty to provide security on the premises where he was injured, and whether the rescue doctrine applies to the facts of this case.

Because this appeal arises from the entry of summary judgment, we view the facts in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523, 666 A.2d 146 (1995). The Greens is a multi-acre entertainment complex consisting of batting cages, a miniature golf course, a golf driving range, bumper cars, and a video arcade. It is owned by a partnership whose operating entity is defendant Nicki Jeff, Inc. Defendant John J. Eichman was an officer of the corporation and a partner in the general partnership. Defendants Peter and Josephine Midiri were the owners and landlords of the property on which The Greens is located. Defendant Charles Verdi was the manager of The Greens at the time relevant to this suit. Part of his duties as manager required that he enforce The Greens' regulations concerning conduct on the premises. Plaintiff was a social acquaintance of Verdi.

On June 6, 1993, plaintiff went to The Greens with his girlfriend, Kelly McShaw, and her son. According to plaintiff, the purpose of the visit was two-fold: for Kelly's son to use the batting cages and other equipment on the premises and for plaintiff to invite Verdi and his parents to a show. Shortly after plaintiff arrived, defendant Michael Corazo, who was at the time using a batting cage with defendant Paul Masciocchi, was observed bringing cups of beer onto the premises from the parking lot where he had parked his vehicle. The Greens had a policy prohibiting alcoholic beverages on the premises. Upon observing the violation, Verdi approached Corazo and Masciocchi and asked them to leave. They responded by becoming verbally abusive toward Verdi. Verdi then grabbed the cup of beer from the table where it had been placed and went to the office to call the police. He was followed there by Corazo and Masciocchi. While in the process of calling the police, Masciocchi "slammed" the cup of beer into Verdi's face.

Corazo and Masciocchi then left the building and entered the parking lot, where they were joined by Corazo's sister and a female cousin who had accompanied them to The Greens. Verdi followed Corazo and Masciocchi into the parking lot for the purpose of recording their vehicle's license plate number. Verdi and the foursome exchanged words, which eventually led to a physical scuffle between Verdi and Masciocchi. Verdi claimed that the physical assault was provoked by his effort to obtain the license plate number from the vehicle. Masciocchi, however, claimed that the physical encounter occurred because Verdi pushed him after exclaiming that he should take his "whorey girlfriend" and leave the premises. Corazo and his sister joined the fray by jumping onto Verdi's back.

Plaintiff, who had observed the foregoing events, decided to assist Verdi because "[t]hree on one, just seemed a little unfair." Corazo, apparently upset by plaintiff's intervention, reacted by attacking plaintiff with a golf club that he ripped out of the hands of a young female bystander. Plaintiff was seriously injured as a result of the attack.

Plaintiff instituted suit seeking compensation for his injuries against the foregoing defendants. He also sued defendants Albert and Elizabeth Giannone, the hosts of the party where Corazo and Masciocchi had been drinking before going to The Greens. Corazo apparently did not answer the complaint. On October 28, 1996, summary judgment was entered in favor of The Greens, Nicki Jeff, Inc., Eichman, Verdi, and the Midiris. Plaintiff ultimately settled with defendants Masciocchi and the Giannones. This appeal was then taken.¹

I.

Relying essentially on Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 694 A.2d 1017 (1997), plaintiff contends that the trial judge erred in holding that, because The Greens had no history of violence, it had no duty to provide security on the premises in addition to Verdi's presence, or to protect its invitees against criminal attack. In deference to the trial judge, we note that Clohesy, supra, was decided eight months after summary judgment was entered in this case. Nonetheless, even applying the Clohesy principles, we find no error in the trial judge's decision on this issue.

Clohesy, supra, held that in determining whether the operator of a business has a duty to protect its customers against criminal incidents, the foreseeability of risk stemming from such criminal conduct depends on an evaluation of the "totality of the circumstances." Id. at 516, 694 A.2d 1017. The absence of similar criminal activity on the premises is one of the circumstances to be considered but is not determinative. Id. at 516-17, 694 A.2d 1017. Other relevant circumstances include criminal acts that occurred in proximity to the premises, as well as:

the property's size and location; the absence of any security; the architectural design of the building in relation to the area of the parking lot where the crime occurred; the size of the parking lot; the type of business defendant operates; the nature and circumstances of nearby businesses; and the increasing level of crime in the general neighborhood.

[Id. at 517, 694 A.2d 1017.]

Applying the facts from the record before us in a light most favorable to plaintiff requires the same result arrived at by the trial judge. While Verdi estimated in his deposition that he had to eject one patron a month, the reasons for the ejections were minor infractions of The Greens' rules, such as walking onto the driving range, playing without paying, or bringing their own golf balls to play miniature golf. A sign was posted in the lobby prohibiting the use of drugs or alcohol on the premises. There had never been an ejection for that reason nor did Verdi ever have to call the police prior to the incident involving Corazo and Masciocchi. Further, there is no evidence that the surrounding businesses had experienced criminal activity. Plaintiff has offered no evidence disputing those facts.

As noted earlier, The Greens is a multi-acre facility that caters to families and children for sport-related activities. There is nothing about the nature of the business suggesting foreseeability of violent behavior. The fact that the fence surrounding the premises might permit unauthorized access to the recreation area without passing through the main building is insufficient to draw any adverse inference concerning risks to patrons from criminal activity. Plaintiff also makes much of the fact that there could have been as many as six hundred people at The Greens on the Sunday in question, and that The Greens normally hired an additional security officer on Fridays and Saturdays once schools in the area recessed for the summer. Nonetheless, there is no indication that The Greens was crowded at the time of this event, or that the number of patrons in some way contributed to Verdi's inability to control the conduct of Corazo and Masciocchi.

It is important to note that the Clohesy Court did not hold that the circumstances in that case required the defendant business to provide security guards. Rather, the Court simply stated "that the duty to provide security may include a security guard as well as any other security system or warnings deemed reasonable under all of the circumstances." Id. at 520, 694 A.2d 1017. Here, plaintiff specifically maintains that The Greens had a duty to provide security guards in addition to Verdi who functioned essentially in that capacity. However, even if additional security personnel had been on the premises on the Sunday in question, there is no indication that the incident would not have occurred as it did. As the Clohesy Court recognized, security guards must serve "limited role[s]." Id. at 519, 694 A.2d 1017. They should not act as police officers would act in arresting offenders. Rather, their only function is "to report suspicious criminal activities to the police and thus help [ ] avert criminal conduct.... Guards serve as a deterrent to crime and assist the police as would any other citizen." Ibid. In this case, Corazo and Masciocchi knew that Verdi had the authority to enforce The Greens' regulations and were aware that he had called the police for assistance. Their assaultive behavior occurred because of Verdi's authority, not because there was an absence of it. Moreover, Verdi reported their behavior to the police and requested help.

II.

Plaintiff argues, alternatively, that Verdi's actions incited the altercation with Masciocchi and Corazo and, in doing so, he breached a duty of care owed to plaintiff. Plaintiff contends that it was foreseeable that the altercation would result in injury to a third party and that the trial judge's reliance on Genovay v. Fox, 50 N.J.Supe...