SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0021- 22 RICHARD GARBACKI, Plaintiff-Appellant,

v. ALSHON YOUNG, CHELSEA MANAGEMENT, LLC , and ECHELON GLEN 2016, LLC , a/k/a ECHELON GLEN APARTMENT HOMES, Defendants-Respondents.

__ ___________________________

Argued December 4, 2023

– Decided January 12, 2024Before Judges DeAlmeida, Berdote Byrne, and BishopThompson. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L- 3134

- 20

. Keith Andrew Peterson argued the cause for appellan t (Donelson, D'Alessandro & Peterson, LLC, attorneys; Keith Andrew Peterson, on the briefs ).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0021

- 22 Jeffrey Francis Talbot argued the cause for respond ent s (Law Offices of James H. Rohlfing, attorneys; James Patrick Meissler, on the brief).
PER CURIAM In this appeal from a summary judgment order in a p ersonal injury action alleging negligence, plaintiff argues the trial cou rt erred in finding defendantlandlords breached no duty to plaintiff when he was injured after he opened his apartment door and was assaulted by an inebriated m an. Because we find, after reviewing the totality of the circumstances, the la ndlords could not have foreseen this random, intentional assault, we concu r with the trial court and affirm.
I. Like the motion court, we view the evidence in the landlords' summary judgment motion in the light most favorable to plai ntiff, the non-moving party. Harz v. Borough of Spring Lake, 234 N.J. 317, 329 ( 2018); Rivera v. Cherry Hill Towers, LLC , 474 N.J. Super

. 234, 238 (App. Div. 2022). Plaintiff resided at Echelon Glen Apartments in Vorhees Township, an apartment complex owned and managed by defendants Echelon Glen and Chelsea management (landlords), comprised of approximately 36 buildings and 432 apartments on 25 acres. On November 8, 2018, plaintiff was in his apartment wh en defendant Alshon Young3 A- 0021

- 22

(You ng) knocked on the door. Plaintiff was expecting his wife, who ha d left to run an errand an hour prior, and did not look throu gh the peephole before opening the door

. Young believed he was knocking on his grandfather's door, where he was staying. When plaintiff opened the door, Young, ap parently believing plaintiff was a stranger in his grandfather's apartment, push ed his way in and struck plaintiff several times, injuring him. After the a ttack, Young fell asleep on the couch. Plaintiff crawled out of his apartment and down the steps while bleeding until emergency responders and the police arrived. Young eventually pleaded guilty to a lesser charge for the aggravated assault on pl aintiff. Plaintiff filed a five-count complaint against You ng, Echelon Glen, and Chelsea Management. Counts one through four allege d assault and battery, intentional infliction of emotional distress (IIED) , negligent infliction of emotional distress (NEID), and trespass against You ng. Counts three and five alleg ed NE ID and premises liability against landlords. The landlords moved for summary judgment after the close of discovery. In their Rule 4:46 -2(a) statement of material facts, they highlighted plaintiff's deposition testimony stating he "never had any visi tors or strange people or solicitors or anything knock at the door." Additio nally, they asserted the only4 A- 0021

- 22

police reports involving the apartment complex were from three false burglar alarms in the management office in 2016, two years before the assault. Plaintiff opposed summary judgment and emphasized two discrete
in cidents of criminal activity at the Vista apartment s, a neighboring property also owned and managed by landlords, and a separate incident on a nearby road. Citing deposition testimony from landlords' princip al, plaintiff stated landlords had "actual knowledge" of a prior similar criminal act of violence that occurred at the nearby Vista Apartments. The trial court granted summary judgment, dismissin g landlords from the

case with prejudice, after finding the determinative issue wa s whether the incident was a "foreseeable criminal act of third p arties." In granting summary judgment, the trial court ultimately found plaintif f voluntarily opened his door, "there was no break in," and "[t]here was no inadeq uate lock on the door." The court further held plaintiff failed to produce any evidence from which a jury could find this type of criminal activity was fores eeable. This appeal followed.
II. An appellate court reviews de novo orders granting summary judgment and applies the same standard that governed the tri al court's ruling. Lee v. Brown, 232 N.J. 114, 126, (2018) ; see also Bhagat v. Bhagat , 217 N.J. 22, 385 A- 0021

- 22

(2014)

. Summary judgment will be granted if, viewing the c ompetent evidential materials in the light most favorable to the non-mo ving party, "there is no genuine issue of material fact and 'the moving part y is entitled to a judgment or order as a matter of law.' " Co nley v. Guerrero, 228 N.J. 339, 346 (2017) (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). In order to demonstrate the existence of a "genuin e issue [ of ] material fact" and survive a summary judgment motion , "the opposing party [must] do more than ' point[ ] to any fact in dispute.'" Globe Motor Co. v. Ig dalev, 225 N.J. 469, 479 (2016) (emphasis omitted) (quoting Br ill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 52 9 (1995)). "The practical effect of this rule is t hat neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governin g the cause of action." Bhagat, 217 N.J. at 38. Whether plaintiff is owed a legal duty is a questi on of law ripe for summary judgment. S ee Delvalle v. Trino, 474 N.J. Super. 124, 135 (App. Div. 2022); see also Clohesy v. Food Circus Supermarkets , Inc., 149 N.J. 496, 502 (1997) (citing Carvalho v. Toll Bros. & Devs., 143 N.J. 565, 572 (1996); Kelly v. Gwinnell, 96 N.J. 538, 552 (1984)).6 A- 0021

- 22 III. Plaintiff argues the trial court resolved "dispute d material facts in favor of the moving party" by commingling two prior discrete events

— the criminal act at the Vista apartments and the shooting on a nearb y road

— into one event, diminishing the significance of each event in the p rocess. He argues the trial court engaged in impermissible fact finding by conf lating the two incidents. He further argues those facts should have been resolve d by the jury, because a reasonable jury could find that two incidents of prior criminal acts, as opposed

to merely one, could make the difference "in the deter mination of the landlord's duty." Landlords argue neither Echelon Glen nor Chelsea M anagement had notice of criminal activity to justify heightened s ecurity on the premises. They argue even assuming the trial judge found two separ ate incidents of prior criminal activity near the property, those incident s were so isolated and distinct in time and manner from the present incident that n o rational fact finder could find defendants breached a duty to plaintiff. Addi tionally, they argue any precautions landlords could have taken would not ha ve prevented this incident. We agree.7 A- 0021

- 22

The "mere relationship of landlord and tenant impo ses no duty on the landlord to safeguard the tenant from crime." Brai tman v. Overlook Terrace Corp., 68 N.J. 368, 3 87 (1975). However, "a residential landlord has a le gal duty to take reasonable security measures for tenan t protection on the premises." Scully v. Fitzgerald, 179 N.J. 114, 122 (2004) (cit ing Trentacost v. Brussel, 82 N.J. 214, 231 (1980)). "Negligence is tested by whether t he reasonably prudent person at the time and place should recognize and f oresee an unreasonable risk or likelihood of harm or danger to others." Trenta cost, 82 N.J. at 222 (quoting Rappaport v. Nichols, 31 N.J. 188, 201 (1959)). Fo reseeability of harm is "essential to holding a landlord potentially liable ," E.S. for G.S. v. Brunswick Inv. Ltd. P'ship, 469 N.J. Super. 279, 297 (App. Di v. 2021), and is a factsensitive inquiry , Coleman v. Martinez, 247 N.J. 319, 339 (2021). Foreseeability of criminal incidents is determined by a review of the totality of the circumstances. Clohesy, 149 N.J. at 507 (1997). In the case of a residential landlord, harm may be reasonably foresee able by a high incidence of crime in the area, previous attempted break-ins, or failure to equip doors with working locks. Trentacost, 82 N.J. at 222-23. Evi dence of break-ins at other apartments in a general area may also be considered . Braitman, 68 N.J. at 373,
382

.8 A- 0021

- 22

Plaintiff's reliance upon Clohesy is misplaced. T he Court in Cl ohesy specifically rejected finding liability based solel y on prior similar criminal incidents, in favor of a totality of the circumstan ces analysis. Est. of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 319 (2013). Although prior criminal incidents may be considered as a factor in assessin g the totality of the circumstances, the incidents must be numerous and s ufficiently frequent to be foreseeable and constitute, at minimum, constructiv e notice. Inapposite to Cl ohe sy , where "approximately sixty criminal incidents eit her on or near" the supermarket premises occurred over the course of th e preceding two years, there were no prior reported incidents at the Echelon Glen apartment complex. Plaintiff relies upon a report summarizing violent crimes in all of Voorhees from 2015 through 2018, and an eleven-page police report regarding a February 2017 shooting on a nearby road at a different apartment complex, sta ting a gun went off by accident during an argument. Plaintiff also relies on deposition testimony from landlord's principal, where he recalled "one i ncident" at the Vista apartment complexes, not Echelon Glen. There was n o documentation of that incident other than this testimony, which may have been referring to the same
event

– the misfiring of a gun on a nearby road.9 A- 0021

- 22

Regardless, even accepting plaintiff's position, th ese two discrete inciden ts do not establish a duty. Plaintiff fails to show "the landlord[s] ha[d] sufficient control to prevent [plaintiff's attack] ." Scully, 179 N.J. at 123 (citing Braitman, 68 N.J. at 382- 83) ; s ee Peguero v. Tau Kappa Epsilon Loc. Chapter , 439 N.J. Super. 77, 87 (App. Div. 2015) (defendants owed no duty to protect plaintiff from being shot by a third-party assailan t). Plaintiff cannot articulate any action landlords could have taken to prevent Yo ung, who was staying with his grandfather in another apartment at the complex , from knocking on the wrong door

. The totality of the circumstances here demonstrate s a random , unpreventable criminal act by a third party and pla intiff's suggestion, that the landlords ha d a legal obligation to post nearby crime statistic s, could not have prevented plaintiff's injuries. To the extent we have not addressed plaintiff's rem aining arguments, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Affirmed.