A New Jersey Appellate Court has again reversed a lower court’s denial of a defendant’s summary judgment motion in a personal injury negligence case because the trial court mistakenly decided that genuine issues of material fact needed to be determined by the jury as to whether defendant owed plaintiff a duty of care. Reiterating well-established New Jersey case law, the Court held that the determination of whether a duty is owed is a question of law that needs to be decided by the judge, not a jury at trial.
In Rivera v. Cherry Hill Towers, plaintiff filed suit against Cherry Hill Towers (the “Towers”), its former property manager, Vikco, and other parties after she was shot by her estranged husband in the Towers’ parking lot. In her Complaint, she alleged that Vikco’s negligence in failing to provide a safe environment as property manager of the Towers—an apartment complex in a known high crime area—was the proximate cause of her shooting injuries. According to the allegations, plaintiff’s estranged husband was able to access an unlocked and unsecured gate, after which he laid in wait for plaintiff in the parking lot. At the time of the incident, Vikco was no longer the property manager at the property; the management contract had been transferred to AION Management, LLC when new ownership purchased the Towers.
Plaintiff alleged that during Vikco’s 18-year tenure as property manager, the front gate was routinely unmanned and generally left open, even though access was supposed to be restricted in the evenings to residents only, and that AION continued Vikco’s practice of leaving the gate unsecured. She claimed that Vikco was negligent in providing security at the Towers. At the trial level, Vikco moved for summary judgment on the basis that it could not be held liable for plaintiff’s assault, as it was no longer property manager and had no control over security. It further argued that the assault was not foreseeable because it was so particularized as to plaintiff. Plaintiff countered that Vikco had a duty to her under the four-factor test set forth Hopkins v. Fox & Lazo Realtors. She further argued that her assault was foreseeable because Vikco had actual notice that the Towers was unsafe based on tenants’ complaints and hundreds of 911 calls.
The trial court denied Vikco’s summary judgment motion, finding that even though Vikco was not managing the Towers when the assault occurred, a jury could find that Vikco knew of significant criminal activity at the Towers, but did not prevent it. The court noted case law holding that significant criminal conduct is sufficient to place a party on notice to exercise a duty of care and that a jury could find that Vikco had the opportunity to exercise reasonable care regarding the criminal activity, but failed to do so. The court held that “it’s not to say that [Vikco is] responsible, but … it’s a jury issue as to whether or not the duty exists.”
The Appellate Court pointedly disagreed with this analysis and emphasized that the existence of a duty is a question of law for the judge to decide. Looking at the facts of the case, the Court found that the relevant question was whether Vikco owed a duty to plaintiff given that it was not the property manager at the time of the assault. Under New Jersey law, public policy and notions of basic fairness play a large role in determining whether a duty of care exists. A court has to look to the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution in making this determination. In weighing these factors, the Court found that Vikco did not owe a duty to plaintiff when the assault occurred because Vikco’s services as property manager had been discontinued at the time of the shooting, it did not have a relationship with plaintiff, and it had no ability to exercise control over the Towers. The Court reversed the trial court’s decision and granted Vikco’s motion for summary judgment.
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