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Apartment Complex Found not Liable to Plaintiff Who was Injured as a Result of Drive-By Shooting

By on January 4, 2019 in Liability with 0 Comments

Plaintiff Najee Paschall was in the vicinity of the Defendant Norfolk Square Apartments when he was shot as a result of a drive-by shooting. He was walking by the apartments when he saw a white van drive by, open its doors, and a person started shooting. Plaintiff was shot in the back. In Paschall v. Norfolk Square Apartments, 2018 N.J. Super. LEXIS 2832 (App. Div. Dec. 28, 2018), the issue was whether the owner and the manager of the apartment complex owed a duty to plaintiff for the injuries suffered as a result of the shooting.

These apartments were a large apartment complex located in Newark. They housed senior citizens and were located in a neighborhood associated with drug activities. Due to his suspected drug activities, the plaintiff had been previously barred from the Norfolk Apartments.

On April 27, 2015, plaintiff was in the vicinity of the Norfolk Apartments. He was walking on Norfolk Street, toward the Norfolk Apartments. He had been returning home after visiting a friend who lived a few blocks away. While walking past a garbage dumpster on the opposite side of a liquor store or bodega, he saw the white van, driving down Norfolk Street. Its rear doors opened and a person began shooting. Plaintiff ran into the Norfolk Apartments and exited the rear of the building.

However, plaintiff testified that he did not live at the Norfolk Apartments and did not need to cut through the complex to get home. Further, he had no intention or plan to enter the Norfolk Apartments on the day of the incident. Based upon his deposition testimony, when the shooting began, he was crossing the intersection in front of the Norfolk Apartments. After the van appeared, he continued walking on Norfolk Street and felt something hit him. After hearing five or six shots fired, he then ran inside the apartments.

Plaintiff filed a personal injury action against the defendants (the owner and manager of the apartment complex) for his injuries, claiming he was on the property when he was shot. The defendants filed a motion for summary judgment, contending that they owed no duty of care to the plaintiff for his injuries.

In opposition to the motion, the plaintiff attempted to argue that he was on the property at the time of the shooting. However, the motion judge noted that the evidence he submitted in opposition to the motion contradicted the plaintiff’s sworn deposition testimony where he was standing when he was shot. Plaintiff’s counsel tried to explain his client’s testimony by contending that he was in a “special school” and may not have been able to articulate correctly the location where he was standing when he was shot.

In deciding this motion, the trial court judge applied the factors found in the Supreme Court case of Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993)(duty in premises liability case). Based upon Hopkins, the judge found that the defendants did not owe plaintiff a duty of care and dismissed the case. On appeal, the plaintiff reiterated his arguments before the trial court, claiming that “(1) he was on defendants’ property when he was shot; (2) the attendant risk of the shooting was foreseeable; and (3) the presence of security guard on defendants’ property would have deterred the shooting.”

The Appellate Division noted that “whether defendant owes a duty of care to another is generally a question of law to be determined by the trial court.” The court must look at the totality of the circumstances to determine whether there is an existence and scope of a duty in a negligence action. The court would analyze “a landlord’s duty of care to an individual based on a totality of the circumstances and considerations of public policy and fairness.” The trial court based its finding on the Supreme Court’s four factors as enumerated in the Hopkins case “(1) the relationship of the parties; (2) the nature of the attendant risk; (3) the opportunity and ability to exercise care; and (4) the public interest in the proposed solution.” In applying the Hopkins factors, the Appellate Division found that the motion judge was correct that the defendants did not owe a duty of care to the plaintiff under the circumstances.

The Appellate Division noted that the plaintiff and defendants had no relationship because “plaintiff was neither a tenant nor visitor of the Norfolk Apartments at the time of the incident.” Plaintiff was not on defendants’ property when the shots were fired, based upon his deposition testimony. The court discounted the plaintiff’s belated affidavit to attempt to place himself on the apartment complex’s property. Plaintiff was a trespasser on the property at the time of the incident and, as such, “defendants only had a duty to warn plaintiff of dangerous artificial conditions that might result in death or serious bodily injury.”

Further, the attendant risk of a drive-by shooting was unforeseeable. There was no evidence offered demonstrating defendants were aware of drive-by shootings. Although the defendants provided security at the Norfolk Apartments to prevent drug dealers from disturbing the residents, that did not create a duty to protect stranger–pedestrians such as plaintiff.

Further, as the trial court noted, the defendants had no opportunity or ability to protect a stranger–pedestrian from an unforeseeable drive–by shooting. Finally, the trial court judge “found imposing a duty of care upon property owners to protect strangers from random acts of violence are of no public interest.”

The Appellate Division agreed with the trial court judge’s evaluation of the totality of the circumstances, “as well as the concepts of fairness and considerations of public policy.” Thus, the Court concluded that the defendants owed no duty of care to the plaintiff. Because there were no genuine issues of material fact, the Appellate Division found that summary judgment in favor of defendants was properly granted. Hence, it affirmed the trial court’s decision, dismissing this case.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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