JOSEPH KOCH VS. STATE OF NEW JERSEY (L-3022-15, UNION COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5570-17T4
JOSEPH KOCH,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, KEAN
UNIVERSITY, SIGMA THETA
CHI FRATERNITY, SIGMA THETA
CHI FRATERNITY, INC., ROCCO
HERNANDEZ, and CHRISTOPHER
LASSONI,
Defendants-Respondents,
and
DAWOOD FARAHI, as President
of KEAN UNIVERSITY, JOHN
KULISH, BARBARA KULISH,
MICHAEL ROSCHE, ERIC PUGA,
MARIA ROSCHE, ALEX BOZGO,
ANTHULLA CUADRA, and
SHAQUAN LANDRUM,
Defendants.
_______________________________
Submitted December 9, 2019 – Decided January 16, 2020
Before Judges Sumners, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3022-15.
Maria D. Noto, attorney for appellant.
Law Offices of William E. Staehle, attorneys for
respondent Christopher Lassoni (Kevin D. London, on
the brief).
Litvak & Trifiolis, PC, attorneys for respondent Rocco
Hernandez (Steven I. Litvak, of counsel; Thomas
William Griffin, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondents State of New Jersey and Kean University
(Melissa H. Raksa, Assistant Attorney General, of
counsel; Michael R. Sarno, Deputy Attorney General,
on the brief).
Musto and Alevras, attorneys for respondents Sigma
Theta Chi Fraternity and Sigma Theta Chi Fraternity,
Inc., join in the briefs of respondents State of New
Jersey, Kean University, Rocco Hernandez and
Christopher Lassoni.
PER CURIAM
Plaintiff Joseph Koch, while a student at defendant Kean University
(Kean), sustained serious injuries when he was shot by defendant Shaquan
Landrum. Koch was attending a private party at an off-campus residence hosted
by defendants Michael Rosche, Rocco Hernandez, Christopher Lassoni, Eric
Puga, and Alex Bozgo, members of defendant Sigma Theta Chi fraternity. After
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the parties engaged in extensive discovery and motion practice, on November 3,
2017, the Law Division issued orders granting summary judgment to defendants
the State of New Jersey, Kean, Hernandez, Lassoni, Sigma Theta Chi Fraternity,
and Sigma Theta Chi Fraternity, Inc., and denied summary judgment as to
defendant Michael Rosche.1
After a thorough consideration of the record and the parties' arguments in
light of the applicable legal principles, we affirm the court's November 3, 2017
order dismissing Kean, the State, Hernandez, and Lassoni. We vacate, however,
the portion of the November 3, 2017 order that granted summary judgment to
Sigma Theta Chi Fraternity and Sigma Theta Chi Fraternity, Inc., and remand
for further proceedings.
I.
In our review of the record, we viewed the facts and all reasonable
inferences therefrom in the light most favorable to plaintiff, the party against
whom summary judgment was entered. Brill v. Guardian Life Ins. Co. of Am.,
1
In separate orders, the court also granted summary judgment to defendants
Dawad Farahi, as President of Kean, Bozgo, Anthulla Cuadra, and Maria
Rosche. The court also issued a default judgment as to liability against
Landrum. We limit our discussion to plaintiff's claims against Hernandez,
Lassoni, Kean, the State of New Jersey, Sigma Theta Chi Fraternity, and Sigma
Theta Chi Fraternity, Inc., because plaintiff challenges only the dismissal of his
claims against those parties.
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142 N.J. 520, 540 (1995); R. 4:46-2(c). Applying that standard, the record
before the trial court established the following facts.
At approximately 10:30 p.m. on Friday, April 17, 2015, plaintiff and five
of his friends arrived at a large party at a home at 215 Conant Street in Hillside
where alcohol was being served. According to Zach Lanaras, who was a
fraternity member, the party "was basically being run by Sigma Theta Chi."
Although Lanaras was collecting five dollars at the front door of the house for
admission, he was not checking the identification of any guest. Once the entry
fee was paid, guests were permitted to drink the alcohol available inside the
home.
After midnight on April 18, 2015, Paul Rohm, who lived on the third floor,
got into an altercation with Landrum inside the house. When Lanaras heard
"commotion inside," he interceded and removed Landrum from the house.
Lanaras stated he spoke calmly to Landrum stating, "[l]isten, you seem like
you're a very tough kid . . . [or] a tough guy. We don't want any of those
problems here. Just calm down, take a walk, it'll be fine. We don't want
anything bad to happen." Landrum "was calm" and responded, "I got it. I got
it. I feel it. I feel you, I respect it."
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Rohm, who Lanaras described as "a hot head," came outside and
"apologized" and said, "[l]isten, sorry, . . . whatever happened happened but I
don't like being punched into," at which point Landrum "punched [Rohm]."
Rohm and a group of football players then "started chasing [Landrum] down the
street" attempting to assault him. While Landrum was being chased, Lanaras
heard him say, "Do you know who I am? I run these streets. I'll come back,
shoot you all up."2
Lanaras testified that he responded to Landrum's threat by trying to get
people back inside the house, including plaintiff. Word spread to Rosche that
Rohm kicked someone out of the party who was "going to come back with a
gun." Rosche testified that, when he learned of the threat, he did "[n]othing,"
but "whoever was playing the music" in the basement turned the volume up "so
people would bring themselves to the basement." According to Rosche, the
fraternity members "were just thinking what [they] could possibly do to not
cause a panic." No one called the police.
2
Lanaras clarified that he "heard . . . Landrum say 'I'm going to come back and
shoot this place up.'"
A-5570-17T4
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Landrum returned approximately ten to twenty minutes later and
discharged nine to eleven shots toward the house, two of which hit plaintiff in
the abdomen while he was standing on the porch.
Lassoni testified at his deposition that he first became aware that
something had happened that night when he "heard a lot of noise" that "sounded
similar to fireworks" from his room upstairs. Lassoni stated he sent a group text
message to "[a]round [twenty]" fraternity members asking whether someone had
shot off fireworks and received no response.
Hernandez testified that he was upstairs with a girl for a period during the
party, then came downstairs and someone told him that there was a fight and a
bottle broke on the street, but he did not hear that the person was going to come
back with a gun until weeks afterward. Instead, he stated he went back upstairs,
then "maybe an hour went by . . . [or] [m]aybe a half [hour]" before he heard
what sounded like fireworks.
At the time of the party, Sigma Theta Chi was suspended by Kean,
meaning the fraternity was "[in]eligible for recruitment [and could] not
participate in University[-]wide events mainly geared towards recruitment [or]
organize or host any special activities," including parties. The underlying
incident that led to the suspension involved the fraternity tweeting a photo of a
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"female or females [who] were topless, covering themselves, but [there was]
writing on the picture to suggest joining Sigma Theta Chi." Posting such content
online was a violation of Kean's Code of Conduct. The "specific code violation
[was] related to the organizational name and recruitment activity written on a
female's body." The fraternity was also charged with violating the Kean Greek
Senate New Member Education Guidelines for admitting unauthorized
members. The sanctions imposed included suspension of the organization,
community service, and fines. The suspension was effective from March 25,
2014 through July 24, 2015, which spanned three semesters and included the
date of the shooting.
Landrum eventually pled guilty to first-degree attempted murder.
Although it is unclear from the record why he was at the party, the record
indicates he was a gang member who sold cocaine, that someone who lived in
the house used cocaine, and an individual interviewed by the police had
Landrum's phone number in their contact list.
Plaintiff filed an eight-count complaint in the Law Division alleging:
negligence against all defendants; liability under N.J.S.A. 2A:42A-7 against the
landlords and tenants of 215 Conant Street; failure to remove residential tenants
under N.J.S.A. 2A:18-53 against the landlords; vicarious liability and custodial
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liability against Kean, President Farahi, the State, and the fraternity for the acts
of Rosche, Hernandez, Lassoni, and other fraternity members, including the
unlawful provision of alcohol to minors; premises liability against the fraternity;
and assault and battery and intentional infliction of emotional distress against
Landrum.
On November 3, 2017, in an oral decision and corresponding orders, the
court granted summary judgment to the State, Kean, President Farahi, Maria
Rosche, Sigma Theta Chi, Lassoni, Cuadra, Bozgo, and Hernandez. In its oral
decision, the court reasoned that it would be inconsistent with negligence
principles to impose a duty of care on those defendants because:
[t]his shooting was an unfor[e]seeable criminal act of a
third-party as to most of the defendants. Because it was
unfor[e]seeable, Lassoni, who indicated he was . . . with
his girlfriend in a bedroom upstairs; Maria Ros[c]he,
who is Michael Ros[c]he's mother and was a co-signer
on the lease; Hernandez, who testified that he did not
hear any threats; the fraternity . . .; and the State and
Kean could not be expected to protect plaintiff against
a risk of harm[.] [T]herefore, there is no duty that could
be imposed. The negligence claims, therefore, against
those defendants cannot be sustained as a matter of law.
With respect to the State and Kean, the court, relying on Myers v. Medford
Lakes Bd. of Educ., 199 N.J. Super. 511, 515 (App. Div. 1985), noted that the
New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, generally "limits
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and circumscribes governmental tort liability . . . ." The court further stated that
"N.J.S.A. 59:1-2 provides that a public entity shall only be liable for negligence
within the limitations of the [TCA] and in accordance with the fair and uniform
principles established herein." Pursuant to N.J.S.A. 59:4-2, the court also
stated that a public entity is liable for injury caused by a condition of its
property if plaintiff establishes that "the property was in dangerous condition at
the time of the injury, that the injury was proximately caused by the dangerous
condition, and that the dangerous [condition] created a reasonably foreseeable
risk of the kind of injury which was incurred."
The court emphasized that the location of the incident here "was not
public property" as it "was not owned by Kean, . . . was not leased by Kean,
[and] . . . was not inspected by Kean." The court subsequently concluded that,
since there was neither legal control, possessory control, nor any use for any
purpose of the property by Kean, Kean and the State were "completely
immunized from any responsibility . . . ."
Finally, the court denied the application as to Michael Rosche reasoning
that he had advance notice of the shooting and thus "arguably" could have
A-5570-17T4
9
foreseen it. Plaintiff and Michael Rosche promptly settled. 3 This appeal
followed.
II.
Plaintiff raises three arguments on appeal. First, he maintains the court
erred in granting summary judgment to Hernandez and Lassoni. Second,
plaintiff claims the trial court erred when it granted summary judgment to the
State and Kean as neither entity is immune from liability under the TCA and
genuine and material factual questions existed in the motion record as to whether
they were negligent in supervising Sigma Theta Chi. Finally, plaintiff contends
it was error to dismiss Sigma Theta Chi as he sufficiently established for
purposes of defeating defendants' summary judgment motion that 215 Conant
Street was a Sigma Theta Chi fraternity house. We disagree with plaintiff's first
two arguments but vacate the portion of the November 3, 2017 order granting
3
On July 12, 2018, the court issued a judgment of liability against Landrum
subject to a damages assessment to be determined at a subsequent proof hearing.
We note that the referenced proof hearing was not completed prior to plaintiff
filing his notice of appeal. As the issues on appeal were fully briefed, we
exercised our discretion, for purposes of efficiency, and decided to resolve the
parties' substantive claims even though the judgment against Landrum was not
final. To the extent the parties challenge further orders of the trial court, they
shall ensure that the court has resolved all issues as to all parties, or they shall
request interlocutory review of any challenged order.
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summary judgment to Sigma Theta Chi Fraternity and Sigma Theta Chi
Fraternity, Inc., and remand for further proceedings.
III.
We need not discuss at length the principle noted, supra, that courts
reviewing summary judgment motions must "consider whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540;
see also R. 4:46-2(c). Although the non-moving party must have "more than a
scintilla of evidence" in its favor to defeat the motion, Pressler & Verniero,
Current N.J. Court Rules, cmt. 2.1 on R. 4:46-2 (2020), the court's function is
not "to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Brill, 142 N.J. at 540 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). We review
summary judgment rulings de novo, under the same standard governing th e
motion judge's initial decision. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479
(2016).
To prevail on a negligence claim, "a plaintiff must establish four elements:
'(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual
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damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty.
of Essex, 196 N.J. 569, 584, (2008)). Whether a defendant owes a duty of care
to another is a question of law to be determined by the trial court. Carvalho v.
Toll Bros. & Developers, 143 N.J. 565, 572 (1996). Courts must analyze a
defendant's duty of care to an individual based on the totality of the
circumstances, and considerations of public policy and fairness. Hopkins v. Fox
& Lazo Realtors, 132 N.J. 426, 439 (1993); see also Acuna v. Turkish, 192 N.J.
399, 414 (2007).
There are four factors that must be analyzed when determining whether
an individual owes a duty of care toward another: "the relationship of the
parties[;] the nature of the attendant risk[;] the opportunity and ability to
exercise care[;]" and public policy considerations. Hopkins, 132 N.J. at 439.
This "analysis is both very fact-specific and principled; it must lead to solutions
that properly and fairly resolve the specific case and generate intelligible and
sensible rules to govern future conduct." Ibid. Whether or not a duty should be
imposed in a particular situation "is a question of fairness and public policy.
Foreseeability of injury to another is important, but not dispositive. Fairness,
not foreseeability alone, is the test." Kuzmicz v. Ivy Hill Park Apts., 147 N.J.
510, 515 (1997) (citations omitted).
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The issues raised on this appeal are similar, although not identical, to those
addressed by Judge Sabatino in Peguero v. Tau Kappa Epsilon Local Chapter,
439 N.J. Super. 77 (App. Div. 2015). In that case, the court found there was
insufficient evidence to give rise to a duty to prevent a shooting at a college
party, also hosted by a fraternity at Kean, because there was a lack of evidence
of relevant prior conduct that would have alerted the fraternity members "that
an unknown third-party would pull out a gun and shoot at another guest." Id. at
92. We also noted that there was no evidence anyone observed the shooter with
"a gun, drinking heavily, acting belligerently, or otherwise displaying a volatile
or dangerous propensity" before the shooting. Id. at 93. The Peguero court
stated that although the evidence showed the premises were "crowded and
evidently a copious amount of beer was flowing, there was no proven or
reasonably foreseeable link between those factors and the sudden discharge of a
handgun," and concluded that based on the totality of the circumstances there
was no duty owed to prevent the shooting as it was not reasonably foreseeable.
Ibid.
As noted, the court denied Rosche's summary judgment motion because
the record supported the conclusion that he heard Landrum announce he was
going to "shoot this place up" and did "nothing" except "shepherd partygoers
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into the basement of the property by asking the D.J. to play the music louder."
Plaintiff argues that "there [was similarly] a genuine issue of material fact as to
whether or not [Hernandez and Lassoni], who were present at the house when
Landrum threatened to shoot up the party, [also] heard Landrum make the threat
or otherwise knew that he made the threat." We disagree.
A fair and complete reading of Lassoni's and Hernandez's deposition
testimony supports the court's conclusion that they were not aware of Landrum's
pronouncement before he returned and began to shoot at the house. 4 Confronted
by this testimony, plaintiff essentially argues that a jury, upon observing Lassoni
and Hernandez testify, could nevertheless disbelieve them and find that those
defendants had prior knowledge of Landrum's threat. Such speculation is simply
insufficient to survive a motion for summary judgment.
We also reject any claim that Hernandez or Lassoni are liable to plaintiff
based on principles of premises liability, "a subset of general negligence law."
Peguero, 439 N.J. Super. at 88. To support this point, plaintiff maintains that
Hernandez and Lassoni assumed liability for Landrum's attempted murder based
4
We also note that at a November 3, 2017 hearing, plaintiff's counsel candidly
conceded that he did not "have anything to offer to the [c]ourt . . . to specifically
indicate that Mr. Hernandez heard the threat."
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on a provision in the lease agreement. Paragraph 22 of the residential lease
provides:
LIABILITY OF LANDLORD AND TENANT: The
Landlord is not legally responsible for any loss, injury
or damage to any person or property unless such loss,
injury or damage is directly caused by the Landlord's
negligence. The Tenant is legally responsible for loss,
injury or damage to any person or property caused by
the negligence of the Tenant, the Tenant's family
members, domestic employees, guests or visitors.
According to plaintiff, paragraph 22 makes it "clear that the parties agreed
that the tenants would be responsible for any injuries caused by the tortious acts
of a guest or visitor on the premises." Thus, plaintiff contends, "under the
express terms of the lease agreement," Hernandez and Lassoni "are legally
responsible for [plaintiff's] injuries[,] which were caused by Shaquan Landrum's
actions," since Landrum was "admitted to the party and was actually inside the
house, [and] was a guest, or in the alternative, a visitor of the tenants."
Although "a landowner generally has a duty to maintain the safe condition
of its property for the protection of persons who lawfully enter the premises,"
id. at 89, "[i]t has historically been held that individuals, including business
premises owners, are not generally responsible for the criminal acts of others,"
Estate of Desir v. Vertus, 214 N.J. 303, 318 (2013); see also Restatement
(Second) of Torts § 344 cmt. f (Am. Law Inst. 1965).
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Our Supreme Court has adopted the "totality of the circumstances"
analysis recited in the Restatement of Torts to determine premises liabilit y for
an alleged failure to prevent third-party criminal conduct. Clohesy v. Food
Circus Supermarkets, Inc., 149 N.J. 496, 507 (1997). The Restatement explains
the pertinent considerations and analysis:
Since the possessor is not an insurer of the visitor's
safety, he is ordinarily under no duty to exercise any
care until he knows or has reason to know that the acts
of the third person are occurring or are about to occur.
He may, however, know or have reason to know, from
past experience, that there is a likelihood of conduct on
the part of third persons in general which is likely to
endanger the safety of the visitor, even though he has
no reason to expect it on the part of any particular
individual. If the place or character of his business, or
his past experience, is such that he should reasonably
anticipate careless or criminal conduct on the part of
third persons, either generally or at some particular
time, he may be under a duty to take precautions against
it, and to provide a reasonably sufficient number of
servants to afford a reasonable protection.
[Restatement (Second) of Torts, § 344 cmt. f.]
Here, we conclude, consistent with the trial and Peguero courts, that
Landrum's shooting was not reasonably foreseeable. The record is bereft of
evidence showing Landrum had a history of violence or engaged in conduct prior
to the alleged assault making it reasonably foreseeable that he would harm
plaintiff. In fact, the motion record establishes that neither Hernandez nor
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Lassoni knew Landrum, specifically invited him to the party, were aware of his
gang affiliation or, most importantly, knew that he threatened to return to the
party and "shoot [the] place up." And, although the motion record would support
the conclusion that the guests were consuming alcohol, there is no evidence
Landrum consumed any alcohol while at 215 Conant Street, was under the
influence of alcohol when the assault occurred, or that the consumption of
alcohol, or the circumstances surrounding the fraternity's suspension played any
role in Landrum's intentional act and plaintiff's subsequent injuries. See id. at
92-93.
Plaintiff's evidence "does not come close to the sort of proof" required to
establish that either Hernandez or Lassoni had a duty to prevent the assault on
plaintiff. Id. at 92; see also Butler v. Acme Mkts., Inc., 89 N.J. 270, 280-82
(1982) (finding duty to provide security for, or warnings to, store patron injured
during an attack in the store's parking lot based on history of muggings on the
premises). Having determined that neither Hernandez nor Lassoni were
negligent, paragraph 22 of the lease agreement cannot, by its clear terms, impose
liability for an intentional act such as Landrum's attempted murder. See Price
v. Phillips, 90 N.J. Super. 480, 485-86 (App. Div. 1966) (stating that "negligence
excludes the idea of intentional wrong") (quotation omitted). Accordingly, we
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conclude the court correctly granted summary judgment to Hernandez and
Lassoni.
IV.
Plaintiff next maintains that a genuine issue of material fact exists as to
whether Kean was negligent in failing to enforce the suspension of Sigma Theta
Chi and whether that negligence proximately caused plaintiff's injuries. Further,
plaintiff argues that genuine and material factual questions exist as to whether
Sigma Theta Chi's affiliation with Kean qualified as an agency relationship that
would subject Kean to liability for plaintiff's injuries.
Specifically, plaintiff argues that Kean was negligent when it breached a
duty to plaintiff by failing to enforce its sanctions by way of monitoring off-
campus private residences leased to students. In this regard, plaintiff contends
"Kean University is liable under a theory of negligence due to its failure to
supervise and enforce sanctions on a fraternity which the University itself
promoted and encouraged students to join" and that Kean had a "duty to
supervise its fraternities," and breached that duty by "ignoring the illegal and
dangerous activity going on at the Sigma Theta Chi [h]ouse, and whether that
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negligence ultimately led to a for[e]seeable and violent assault is an issue of fact
for a jury to decide." We disagree.5
The parties do not dispute that as public entities, the TCA governs the
dispute among plaintiff, the State, and Kean. N.J.S.A. 59:1-1 to 12-3. "The
TCA provides general immunity for all governmental bodies except in
circumstances where the Legislature has specifically provided for liability."
Caicedo v. Caicedo, 439 N.J. Super. 615, 623 (App. Div. 2015) (quoting Kain
v. Gloucester City, 436 N.J. Super. 466, 473 (App. Div. 2014)). As such, "the
TCA's dominant theme is immunity, with liability as the exception." Ibid.
(citing D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013)).
"Even if liability exists, '[c]ourts must recognize[] the precedence of
specific immunity provisions, and ensure the liability provisions of the Act will
not take precedence over specifically granted immunities.'" Patrick ex rel. Lint
v. City of Elizabeth, 449 N.J. Super. 565, 572 (App. Div. 2017) (alterations in
original) (quoting Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super. 79, 95
(App. Div. 2015)). Accordingly, to determine whether a public entity is
5
In plaintiff's Notice of Appeal, he identifies the November 3, 2017 order
granting summary judgment to the State. His merits brief, however, fails to
address his claims against the State but focuses instead on the liability of Kean.
We nevertheless address plaintiff's claims against the State to the extent he seeks
to hold it liable for the actions of Kean or its employees.
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immune, "courts should employ an analysis that first asks, 'whether an immunity
applies and if not, should liability attach.'" Bligen v. Jersey City Hous. Auth.,
131 N.J. 124, 128 (1993) (quoting cmt. on N.J.S.A. 59:2-1(a)). The burden of
proof rests on the public entity to establish immunity. Caicedo, 439 N.J. Super.
at 623 (quoting Kain, 436 N.J. Super. at 473). "Where a public entity is immune
from liability for injury, so too is the public employee." Id. at 624 (citing
N.J.S.A. 59:3-1(c)).
A public employee is liable for an injury caused by his or her acts or
omissions to the same extent as a private person unless there is a specific
immunity granted by the TCA. N.J.S.A. 59:3-1(a). Likewise, "[a] public entity
is liable for injury proximately caused by an act or omission of a public
employee within the scope of his [or her] employment in the same manner and
to the same extent as a private individual under like circumstances." N.J.S.A.
59:2-2(a); see also Tice v. Cramer, 133 N.J. 347, 355 (1993) ("The primary
liability imposed on public entities is that of respondeat superior: when the
public employee is liable for acts within the scope of that employee's
employment, so too is the entity . . . .")
Plaintiff argues that Peguero is inapposite because Kean was not a named
defendant in that case, but nevertheless maintains that Peguero put Kean on
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notice of potential shootings at fraternity parties "where alcohol was abundantly
available to all and there was no supervision or monitoring of the fr aternity
house." Thus, plaintiff argues, "the previous shooting in Peguero actually made
this shooting more foreseeable." We acknowledge that Peguero gave Kean
notice that a shooting previously occurred at an off-campus party hosted by
fraternity members at a private residence. We disagree, however, with plaintiff's
claim that this fact warranted imposition of a duty on Kean to take active
measures to protect plaintiff from an act of attempted murder at 215 Conant
Street.
Weighing the Hopkins factors, we conclude Kean did not owe a duty to
plaintiff under the totality of the circumstances. As in Peguero, the risk of a
shooting by a third party is not typically "associated with a social gathering of
this nature." 439 N.J. Super. at 94. Further, Kean did not have knowledge that
the party occurred until after the incident. As such, Kean had no opportunity or
ability to exercise care.
Moreover, since the shooting in Peguero occurred, almost two full classes
graduated, and the shooting did not involve the same residence, fraternity, or
location. As such, public policy considerations militate against imposing a duty
of care where plaintiff has not established that Kean knew, or should have
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21
known, of a possible shooting at the Sigma Theta Chi residence. Accordingly,
we conclude it was not negligent under the circumstances and hence had no
liability under the TCA.6
Plaintiff, alternatively, argues that even if the public entities were not
themselves negligent, they are nevertheless "vicariously liable for the negligent
actions of Sigma Theta Chi and its members." According to plaintiff, "because
of the extent to which Kean University promoted its fraternities including Sigma
Theta Chi, Sigma Theta Chi and its individual members were apparent agents of
Kean since a prudent person would have been justified in assuming that the
fraternity and its members were acting on behalf of Kean University." Again,
we disagree.
An agency relationship may be established through evidence of "apparent
authority" to act on behalf of another. See Sears Mortg. Corp. v. Rose, 134 N.J.
326, 343-44 (1993). However, it only "arises when a principal 'acts in such a
manner as to convey the impression to a third party that the agent has certain
power which he may or not possess.'" Lobiondo v. O'Callaghan, 357 N.J. Super
6
Because we have concluded that neither the State nor Kean, nor any of their
employees or agents, were negligent, we need not address the applicability of
any specific immunity under the TCA. See N.J.S.A. 59:2-2(b); N.J.S.A. 59:3-
1(b).
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488, 497 (App. Div. 2003) (quoting Rodriguez v. Hudson Cty. Collision Co.,
296 N.J. Super. 212, 220 (App. Div. 1997)). The question is "whether the
principal has by [its] voluntary act placed the agent in such a situation that a
person of ordinary prudence, conversant with business usages and the nature of
the particular business, is justified in presuming that such agent has authority to
perform the particular act in question . . . ." Ibid. (quoting Legge, Indus. v.
Kushner Hebrew Acad., 333 N.J. Super. 537, 560 (App. Div. 2000)). "[A] court
must examine the totality of the circumstances to determine whether an agency
relationship existed even though the principal did not have direct control over
the agent." AMB Prop., LP v. Penn Am. Ins. Co., 418 N.J. Super. 441, 454
(App. Div. 2011) (quoting Sears Mortg. Corp., 134 N.J. at 338).
Plaintiff attempts to establish Kean's apparent authority over Sigma Theta
Chi by relying on a flyer that Kean posted for an introductory event (unrelated
to the party at issue) called "Meet the Greeks." The flyer provided:
Greek Life at Kean University serves to promote
student development by providing opportunities for
s[c]holarship, leadership, community service, campus
involvement and fraternal friendship by ensuring all
members a high-quality and safe undergraduate
experience. Their organizational ideals and goals
promote personal development and a strong sense of
identity with the institution.
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Plaintiff claims he relied to his detriment on Kean's representation that
fraternities offer a "safe undergraduate experience." At the outset, we note that
the flyer only speaks of "ensuring all members" of a fraternity a "safe
undergraduate experience," and plaintiff was not a "member" of Sigma Theta
Chi. Even if we were to assume the flyer could be interpreted to apply to
plaintiff as a social guest, we discern nothing in that document that would create
a genuine and material factual question that Kean or the State acted as principals
of Sigma Theta Chi warranting imposition of liability on an agency, respondeat
superior or vicarious liability theory.
Further, even were we to assume that Kean exercised a certain degree of
oversight over Sigma Theta Chi as it did with other university groups, that fact
alone does not support a finding that Kean's conduct created an appearance of
authority as a principal of Sigma Theta Chi or that it had any involvement with
the activities at 215 Conant Street. The summary judgment record, in fact,
supports a contrary conclusion.
As noted, the off-campus residence at which the shooting took place was
privately owned and had no legal connection to Kean. Moreover, included in
the sanctions relating to Kean's suspension of Sigma Theta Chi was a provision
prohibiting it from "organiz[ing] or host[ing] any special activities," including
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24
parties. That sanction, coupled with testimony indicating that Kean did not have
knowledge of the party prior to the shooting, supports the trial court's
determination that an agency relationship, actual or apparent, failed to exist
between Sigma Theta Chi and Kean or the State. Finally, we conclude that any
reliance by plaintiff that Sigma Theta Chi was an agent of Kean or the State of
New Jersey was unsupported by the record and unreasonable under the
circumstances.
V.
In his final point, plaintiff contends the court erred when it granted
summary judgment to Sigma Theta Chi as material and genuine factual questions
existed as to whether 215 Conant Street was a Sigma Theta Chi fraternity house.
Plaintiff further maintains that "Rosche held himself out as a representative of
the fraternity at a party, which was being hosted by fraternity members at a
fraternity house, and which people understood to be a fraternity event."
Therefore, plaintiff contends, "[b]ecause [s]ummary [j]udgment was denied to
Michael Rosche, an apparent agent of Sigma Theta Chi, [s]ummary [j]udgment
should also have been denied to Sigma Theta Chi itself." We agree with plaintiff
only to the extent that the court's decision dismissing Sigma Theta Chi failed to
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address its previous findings against Rosche and the Sigma Theta Chi defendants
separately.
At a September 15, 2017 hearing, the court found that "[t]here [was] a
question of fact as to whether" the party "was a fraternity party or just a party
hosted by the occupants of the property." After stating that "for purposes of the
argument here," which was whether other defendants owed a duty under
Peguero, the court "accept[ed] as true that this house was used as a fraternity
house." The court did not make a contrary pronouncement at the two subsequent
hearings, and we agree with plaintiff that such a factual question existed at the
time of the Sigma Theta Chi defendants' motion.
Further, at the November 3, 2017 hearing, the court found "[i]t is at least
arguable, for summary judgment purposes, that plaintiff's injury . . . was at least
arguably for[e]seeable as to Michael Ros[c]he," who "admitted . . . that he heard
from a fellow fraternity member, namely Paul R[ohm], that Landrum threatened
to come back to the party and 'shoot up the place,'" and concluded that
"plaintiff's claim for negligence against [Rosche] may proceed." Nonetheless,
as noted, the court determined that the shooting "was unfor[e]seeable" with
respect to "Sigma Theta Chi, [and] Sigma Theta Chi, Inc.," and granted summary
judgment to those two defendants.
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Here, the court accepted as true that the shooting occurred at a fraternity
house during a fraternity party where fraternity members had advance
knowledge of the shooting. The court concluded, however, that the shooting
was not foreseeable by the fraternity, and the fraternity was not liable for
Rosche's arguable negligence. The court did not provide any reasoning for its
conclusions that Rosche's (or Rohm's or Lanaras') knowledge would not impute
to the fraternity, or that the fraternity would not be liable for Rosche's negligence
under an agency or vicarious liability basis.7 Nor did the court distinguish
between Sigma Theta Chi Fraternity and Sigma Theta Chi Fraternity, Inc., and
the record on appeal fails to explain sufficiently the relationship between those
entities.8
7
We acknowledge that the imposition of liability under an agency or vicarious
liability basis is not limitless. We conclude, however, that the trial court, in the
first instance, should make the necessary factual findings on the issue. See, e.g.,
Price v. Himeji, LLC, 214 N.J. 263, 294-95 (2013); Brunswick Bank v. Heln
Mgmt., 453 N.J. Super. 324, 334 (App. Div. 2018).
8
The lack of clarity regarding the relationship between Sigma Theta Chi
Fraternity and Sigma Theta Chi Fraternity, Inc., was a product, in part, of those
defendants' failure to submit a specific merits brief on appeal, instead choosing
to rely upon the submissions of other parties. That practice was inappropriate
here as the liability of the fraternity defendants differ, in part, from those of
Lassoni, Hernandez, the State, and Kean.
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VI.
In sum, we affirm the court's November 3, 2017 decision dismissing Kean,
the State of New Jersey, Hernandez, and Lassoni. We vacate, however, the
portion of the November 3, 2017 order that granted summary judgment to Sigma
Theta Chi Fraternity and Sigma Theta Chi Fraternity, Inc., and remand for
further proceedings, the scope of which we leave to the trial court's
discretion. On remand, the court should first determine the relationship between
Sigma Theta Chi Fraternity and Sigma Theta Chi Fraternity, Inc. The court
should then determine whether either entity is liable under an agency, vicarious
liability, or other basis, for the actions of its members who were aware of the
threat Landrum made.9 We stress that nothing in our opinion should be
9
By way of example only, we acknowledge case law holding that under certain
factual circumstances, fraternities' national affiliates have been deemed not
liable for actions involving local chapters. See, e.g., Peguero, 439 N.J. Super.
at 80; Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 654 (Iowa
2000) (holding national affiliate had no duty in wrongful death action where
new member died after excessively consuming alcohol); Rogers v. Sigma Chi
Int'l Fraternity, 9 N.E.3d 755, 765 (Ind. Ct. App. 2014) (granting summary
judgment to national affiliate where the assault of one party guest by another
was unforeseeable); Colangelo v. Tau Kappa Epsilon Fraternity, 205 Mich. App.
129 (1994) (concluding national affiliate did not owe a duty relating to a drunk
driving accident after all parties involved were coming from a party hosted by
the local chapter). On remand, the court should clarify if Sigma Theta Chi
Fraternity, Inc., is a national affiliate, or an unaffiliated local chapter, and if a
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interpreted as expressing our view on the result of the remanded proceedings.
Affirmed in part, vacated in part, and remanded for further
proceedings. We do not retain jurisdiction.
genuine and material factual question exists warranting the potential imposition
of liability upon it.
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