Felix Peguero v. Tau Kappa Epsilon Local Chapter, Tau Kappa

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5419-12T4

FELIX PEGUERO,
APPROVED FOR PUBLICATION
Plaintiff-Appellant/
Cross-Respondent, January 15, 2015

v. APPELLATE DIVISION

TAU KAPPA EPSILON local chapter,
TAU KAPPA EPSILON national chapter,
GREG SPINNER, and THOMAS PRICE,

Defendants-Respondents,

and

CARL TATTOLI and ALEX DE SOUSA,
improperly impleaded as
ALEX DE SOUZA,

Defendants-Respondents/
Cross-Appellants,

and

CHARLTON STANTON, JESSE ALAVA,
ELIO BUSTAMONTE, and MATTHEW FILO,

Defendants.
_________________________________________

Argued December 1, 2014 - Decided January 15, 2015

Before Judges Sabatino, Guadagno, and Leone.

On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-3195-10.
 Michael A. Orozco argued the cause for
appellant/cross-respondent Felix Peguero
(Price, Meese, Shulman & D'Arminio, P.C.,
attorneys; Mr. Orozco and Terence Steed, on
the briefs).

David P. Bateman (Bateman Caliendo, LLC)
argued the cause for respondents Tau Kappa
Epsilon local chapter & Tau Kappa Epsilon
national chapter (Mr. Bateman and Craig M.
Caliendo (Bateman Caliendo, LLC), attorneys;
Messrs. Bateman and Caliendo, on the brief).

David A. Christie, Jr., argued the cause for
respondent/cross-appellant Carl Tattoli (Law
Office of Debra Hart, attorneys; Mr.
Christie, of counsel and on the brief).

William C. Bochet argued the cause for
respondent/cross-appellant Alex De Sousa
(Muscarella, Bochet, Edwards & D'Alessandro,
P.C., attorneys; Mr. Bochet, on the brief).

Respondents Greg Spinner and Thomas Price
have not filed briefs.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This appeal implicates the legal duties that a college

fraternity and its officers or members may owe to guests who are

injured while attending social gatherings at premises used as a

fraternity house.

Plaintiff attended a large party hosted at a private

residence rented by several fraternity members. After consuming

several drinks, plaintiff interceded in an argument that erupted

in the backyard among other persons who were at the party.

2 A-5419-12T4
While trying to assist a friend involved in that argument,

plaintiff was shot and wounded by another person who was at the

party. The shooter was never apprehended or identified. There

was no evidence that the fraternity had any past incidents

involving guns on the premises or involving violent criminal

behavior.

Plaintiff brought a negligence action against the national

fraternity, the local fraternity chapter, and several students

who were officers or members of the fraternity. Defendants

moved for summary judgment, which the trial court granted.

We affirm the summary judgment order because we agree with

the motion judge that there was no evidence showing that it was

reasonably foreseeable that plaintiff would have been shot by a

third party while attending the fraternity event. Hence,

defendants who leased the house breached no legal duty to

plaintiff in these circumstances and were therefore entitled to

a judgment dismissing his negligence claims.

I.

Between 10:30 p.m. and 11:00 p.m. on Friday, September 5,

2008, plaintiff Felix Peguero and a friend arrived at a large

party taking place at a house in Elizabeth. The party was being

hosted by members of the local chapter of Tau Kappa Epsilon, Tau

Lambda ("TKE local") of the Tau Kappa Epsilon ("TKE national")

3 A-5419-12T4
fraternity.1 TKE local is chartered by TKE national and is

affiliated with Kean University2 in Elizabeth. Both TKE national

and TKE local are nonprofit organizations, and both entities

were named as co-defendants in this case.

According to deposition testimony of TKE local's vice

president, who joined TKE the year after the shooting, seven

fraternity brothers3 were renting the house from the property

owner as of the fall of 2008. The owner did not live on the

property, nor did any other tenants. The rental arrangements

were informal and not embodied in a written lease. The

residence was not recognized by TKE national organization as an

"official chapter house," although the record suggests that the

1
TKE national's full legal name is Tau Kappa Epsilon
International Fraternity, Inc.
2
The University is not a party to the litigation. The record
indicates that the University permits students to join
fraternities, but that it does not allow fraternity houses.
3
Those fraternity brothers (Greg Spinner, Charlton Stanton,
Jesse Alava, Thomas Price, Elio Bustamonte, Matthew Filo and
Anthony De Sousa) were named as defendants in this case. The
complaint names another fraternity brother, Carl Tattoli, as an
additional defendant, although Tattoli apparently was not part
of the rental arrangements. Plaintiff did not affect service of
process on Stanton and Bustamonte. Plaintiff did serve Alava
and Filo, who defaulted. Spinner and Price entered into a
consent judgment after the court granted summary judgment in
favor of the other active defendants. The consent judgment
specified that it was "subject to being vacated" if the summary
judgment order were reversed on appeal. Hence, the only
individual defendants participating as respondents on this
appeal are Tattoli and De Sousa.

4 A-5419-12T4
house was regarded by students and other guests as having an

affiliation with TKE.

Plaintiff, who was twenty-one years old and employed at the

time of the shooting, was neither a member of TKE nor a student

at Kean University or any other college. However, he had

attended social events at the house approximately fifteen to

twenty times in the past. When there, he noticed items in the

house with TKE insignia. Plaintiff also recalled that the

fraternity brothers at times would chant when parties took place

there. The friend who accompanied plaintiff to the house on the

night of the shooting also was not a Kean student nor a member

of TKE.

The parties dispute the nature of the social gathering on

the night in question. Plaintiff believed that it was a

fraternity-sponsored event. The TKE defendants disagree,

contending that the occasion was only a birthday party for a

female friend.

In any event, the record indicates that the party drew a

large crowd. Plaintiff estimated at his deposition that

seventy-five to one hundred guests were in attendance.

Certifications from two other witnesses gave a higher figure,

although we will use plaintiff's estimate for purposes of our

analysis.

5 A-5419-12T4
 According to plaintiff, when he arrived at the party, he

paid a $5.00 charge and received a red plastic cup, which he

used for drinking beer at the event. He contends that he paid a

similar "cover charge" when he previously attended at least five

other events at the house. Defendants dispute the charge and

deny that any such charge, if it were imposed, related to the

provision of alcohol.4 By his own admission, plaintiff drank

about five-and-a-half cups of beer between the time of his

arrival and the shooting incident.

At about 1:30 a.m., a fight broke out in the backyard of

the premises. Plaintiff decided to go outside with one or more

of the fraternity brothers and attempt, as he phrased it, to

"diffuse" the situation. As plaintiff recounted at his

deposition:

We go into the back yard, and lo and
behold there's an altercation. I saw that
one Hispanic guy there, and all the other
guys were instigating, Get out of town.
They were saying, Go back to New York.
That's how I knew that someone who I'm
acquainted with was there and being
harassed. He was trying to get into his
car, a friend of mine . . . [.] They were
saying, Go to New York. My impression, not
being from here, they said he was from New

4
We need not address whether the $5.00 charge, if indeed it was
collected in connection with the provision of alcohol, would be
in violation of the State's liquor laws and regulations. See
N.J.S.A. 33:1-1 to -97.

6 A-5419-12T4
 York, and then they perpetuated more,
pushing around TKE members, pushing my
friends around.

I felt a sense of duty to try to break
this situation up. In between trying to
separate people, I guess, someone from the
assailing party took that the wrong way and
attacked me. That's how it all began.

According to plaintiff, the fight initially involved about

five people, some of whom he perceived to be together. He

recalled that after he attempted to intercede, he observed for

the first time a person holding a handgun:

I put my hands in between someone who I knew
and someone else. I said, Chill.

I looked over to the side, and that's when
the big, stocky guy —— someone put a weapon
in his[5] face, a gun, and that's when I said,
wow. This turned up a notch.

So I grabbed my friend, who was on the
floor. I don't know if he slipped or
tripped or was pushed. I picked him up to
walk away from the situation. That's when I
was attacked. I don't know whether that
individual who was standing up felt
disrespected or offended because I pulled my
friend away.[6] I was trying to get away as
soon as possible when I saw the weapon.

[(Emphasis added).]

5
Although not clear, plaintiff's reference to the person who was
placed at gunpoint likely refers to a brother in the TKE local
who was taking part in the melee or attempting to break it up.
6
Plaintiff identified this person as a friend he knew from the
neighborhood, who likewise was not a member of the fraternity.

7 A-5419-12T4
 Upon picking up his friend, plaintiff was punched and then

shot. As he described it:

I was walking away with him [the friend].
The gentleman came and attacked me. I got
hit in the face twice. So I put my hands up
in the defense of kind of grappling, trying
to deflect punches and from that point I
heard some gun shots[.]

. . . .

At that point, I proceeded to run, and I
realized that I couldn't necessarily move.
I felt a lot of burning in my chest. So I
looked down.

Plaintiff sustained one gunshot wound to the chest. He

eventually learned that the bullet had grazed his spine,

punctured his lung and diaphragm, and exited through his right

rib cage. After the bullet passed through plaintiff, it

ricocheted and injured a member of the fraternity.7

The identity of the person who shot plaintiff is still

unknown. Apparently, plaintiff had observed the assailant at

the party before the melee. Two other guests who had been at

the party confirmed in certifications that they both recalled

seeing the assailant about thirty minutes before the shooting.

Plaintiff described the individual as someone who did not "seem

like he was meshing with the party." There was no proof that

7
There is no indication that this other gunshot victim filed
suit.

8 A-5419-12T4
the shooter was a minor or a visibly intoxicated person who had

been served alcohol at the party.

Plaintiff further recalled in his deposition that the

shooter was accompanied by four other men, only one of whom he

could describe with any detail. Although he was unsure of the

criteria used that night for gaining admittance to the party,

plaintiff presumed that the shooter was a friend of someone else

who was in attendance.

There is no claim, nor any indication in the record, that

the shooter was a fraternity member or a Kean student. There is

also no proof that he was a minor, or that he had been served

alcohol at the event. Nor is there any proof that he had been

seen by plaintiff or any of the defendants carrying a gun on the

premises, until he brandished and fired it during the backyard

altercation.

Plaintiff had not seen a gun on the premises during any of

his multiple prior visits. Nor is there evidence that any other

witnesses had seen a gun there previously. Plaintiff did recall

once seeing a serrated knife in a fraternity brother's bedroom

on a prior occasion, but he had no evidence that the knife had

been used to harm anyone.

The only prior incident of violent conduct at the house

that plaintiff could specifically recall was an incident in

9 A-5419-12T4
which a male had whispered something to a female, and the female

"smacked him." Plaintiff acknowledged that this altercation was

quickly resolved. However, he did assert, more generically,

that "fights or altercations" took place at the house "every two

or three parties."

The property did not have a track record of prior violent

incidents. According to the deposition testimony of Tattoli,

the police had come to the house on only one prior occasion, in

response to a noise complaint caused by loud music. There were

no prior incidents involving a weapon. TKE local had been

sanctioned twice by the University for rush-related violations

in the fall of 2005 and the fall of 2007, but none of those rush

incidents involved violent conduct.

TKE national does promulgate certain risk management and

alcohol guidelines. According to those guidelines:

The possession, sale, use or consumption of
alcoholic beverages . . . in any situation
sponsored or endorsed by the chapter . . .
must be in compliance with any and all
applicable laws of the state . . . and
institution of higher education, and must
comply with either the B.Y.O.B. or Third
Party Vendor Guidelines.

10 A-5419-12T4
The guidelines also prescribe that "[n]o alcoholic beverages may

be purchased through chapter funds;" that "[o]pen parties[8] . . .

shall be prohibited;" and that "[n]o members shall . . . serve

to, or sell alcoholic beverages to any minor."

In addition to these risk management guidelines, TKE

national's separate alcohol guidelines state that "[i]f alcohol

is being served, [the local chapter needs] to utilize a third-

party vendor," with certain insurance requirements.

According to the deposition testimony its Chief Executive

Officer, TKE national treats each local chapter as "its own"

entity, and expects the local to be responsible for adhering to

the organization's standards. As he described it, TKE national

typically interfaces with the local chapter only once or twice a

semester, and even then mainly to assure that fees and insurance

premiums are being paid and to address membership, philanthropy,

and community service activities.

After suffering his gunshot injuries, plaintiff filed the

present negligence action in the Law Division against TKE

national, TKE local, and several individual officers or members

of the fraternity or residents of the house. Service of process

was delayed as to two of the individual defendants, Tattoli and

8
Open parties are defined as "those with unrestricted access by
non-members of the Fraternity."

11 A-5419-12T4
De Sousa, who had originally been identified only as "John Doe"

fictitious defendants. The delay prompted them to bring motions

to dismiss the claims against them as untimely under the statute

of limitations. The trial court denied their applications,

concluding that plaintiff had acted with sufficient reasonable

diligence in naming and serving them.

Following the completion of discovery, defendants moved for

summary judgment, arguing that the shooting of plaintiff by the

unidentified assailant was an unforeseeable criminal act, and

that they owed no duty to protect plaintiff from that event.

Plaintiff contended that defendants could have and should have

envisioned that a violent incident would occur at the party,

given the enormous crowd that had gathered at the house, the

widespread consumption of alcohol, and the lack of effective

controls on who entered the premises.

After considering these arguments, Judge Lisa F. Chrystal

granted summary judgment to defendants and dismissed plaintiff's

claims. In her detailed seventeen-page written decision issued

on January 17, 2013, Judge Chrystal identified and applied the

relevant principles of tort law, agreeing with defendants that

they had violated no legal duty to plaintiff in failing to

prevent this unfortunate shooting. As the judge summarized her

reasoning:

12 A-5419-12T4
 Here, there is no evidence of discipline or
suspension of TKE by Kean University for
violent acts or criminal behavior. There is
also no evidence of any incidents or arrests
at [the house] by the Elizabeth Police
Department. The only record of interaction
between the police and [the house] was in
regard[] to noise complaints. Though
plaintiff testified that "every two or three
parties someone gets into an argument,"
plaintiff was only able to describe one
argument wherein a woman slapped a man after
he whispered something in her ear. There is
also no evidence of criminal acts at other
fraternities or at Kean University before
this [c]ourt. Further, there is no evidence
that TKE or its local officers knew or were
expecting the assailants who shot plaintiff.
As such, there is simply no evidence to
demonstrate that it was foreseeable that
plaintiff would be shot while attending a
party at [the house]. Therefore, TKE and
the individual defendants owed no duty to
plaintiff to protect him from the criminal
acts of third parties.

[(Emphasis added).]

The judge thereafter denied plaintiff's motion for

reconsideration.

Plaintiff now appeals the trial court's rulings. Although

he does not quarrel with the legal principles identified in the

judge's decision, he contends that the judge misapplied the

"totality of the circumstances"9 test for the recognition of a

legal duty and also overlooked "significant factual evidence."

9
See Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 516-17
(1997).

13 A-5419-12T4
Fundamentally, he maintains that the judge erred as a matter of

law in concluding that the individual fraternity residents and

officers, as well as TKE national and TKE local, did not owe him

a duty of care to prevent his gunshot injury. We consider those

arguments by reviewing the factual record in a light most

favorable to plaintiff, consistent with the summary judgment

standard. R. 4:46-2(c); W.J.A. v. D.A., 210 N.J. 229, 237-38

(2012).

Defendants Tattoli and De Sousa have provisionally cross-

appealed the judge's denial of their motion to dismiss the

claims against them under the two-year statute of limitations,

N.J.S.A. 2A:14-2(a).

II.

No reported cases to date in this State have yet addressed

the scope of duties that may be owed by a college fraternity, or

its officers or members, to protect guests from violent conduct

that may occur at a social event hosted by members of a

fraternity. As Judge Chrystal appropriately recognized,

however, general principles of tort law can be applied. For the

reasons that follow, we agree with her sound conclusion that

defendants in this case breached no duty of care to plaintiff in

somehow failing to prevent his unfortunate shooting by an

unidentified assailant who happened to be at the party.

14 A-5419-12T4
 Plaintiff's common-law negligence10 claims essentially arise

under the law of premises liability, as he was injured while

visiting the house rented and occupied by the fraternity

brothers. The general applicable principles of premises

liability in our state are well established, albeit evolving in

some respects in recent case law.

Premises liability is a subset of general negligence law.

"In New Jersey, as elsewhere, it is widely accepted that a

negligence cause of action requires the establishment of four

elements: (1) a duty of care, (2) a breach of that duty, (3)

actual and proximate causation, and (4) damages." Jersey Cent.

Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013).

Of central import for purposes of this appeal is element

number one, namely, the duty of care. The issues of whether a

defendant owes a legal duty to another and the scope of that

duty are generally questions of law for the court to decide.

Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996);

Kelly v. Gwinnell, 96 N.J. 538, 544-45 (1984). We therefore

review de novo the trial court's legal determination that

10
Significantly, plaintiff pleads no statutory claims under the
social host liability laws, N.J.S.A. 2A:15-5.6 to -5.7. Nor
could plaintiff successfully advance any claims under that
statute here, because there is no proof that the shooter was
served any alcohol at the house, or that he was served alcohol
while visibly intoxicated. N.J.S.A. 2A:15-5.6.

15 A-5419-12T4
defendants owed no duty to protect plaintiff from being shot by

this third-party assailant. Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

As the Supreme Court recently instructed, in cases such as

the present one where the duty of care is not well settled, the

court must engage in a so-called "full duty analysis." Desir,

Estate of ex rel. Estiverne v. Vertus, 214 N.J. 303, 317 (2013).

Such an "analysis rests upon whether the imposition of a general

duty to exercise reasonable care to prevent foreseeable harm is

fair and just under the circumstances." Ibid. (citing Hopkins

v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)).

Since the time of the Court's decision in Hopkins, the duty

analysis in our State has focused upon several factors: the

relationship of the parties; the nature of the attendant risk;

the opportunity and ability to exercise care; and the public

policy considerations. Ibid. The application of these four

factors 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." Hopkins, supra, 132 N.J. at 439. The foreseeability

of the harm involved is one of the many considerations in

assessing whether a duty is owed. See, e.g., Desir, supra, 214

N.J. at 317 (noting that a duty of care can be owed "if the

16 A-5419-12T4
source of the injury is a dangerous condition on the premises

and if the injury is the result of a foreseeable risk to an

identifiable person").

Moreover, "'[w]hether a duty exists is ultimately a

question of fairness.'" Ibid. (quoting Weinberg v. Dinger, 106

N.J. 469, 485 (1987)). Indeed, as the Supreme Court emphasized,

"the function of the law, and in particular the common law

governing tort recoveries, cannot be driven by sympathy or

overshadowed by the effects of tragedy." Id. at 329 (emphasis

added). "Rather, the function of tort law is deterrence and

compensation, and absent circumstances in which the definition

of the duty can be applied both generally and justly, [a court]

should stay its hand." Id. at 329-30.

As a result of case law applying these core concepts, a

landowner generally has a duty to maintain the safe condition of

its property for the protection of persons who lawfully enter

the premises. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 43-44

(2013); see also Reyes v. Egner, 404 N.J. Super. 433 (App. Div.

2009), aff’d as modified, 201 N.J. 417 (2010). Although

traditionally the extent of that duty was dictated by common-law

classifications of whether the plaintiff on the premises was an

invitee, a licensee, or a mere trespasser, modern case law has

eschewed such rigid categories and instead adopted a more

17 A-5419-12T4
flexible analysis rooted in considerations of reasonable care.

Hopkins, supra, 132 N.J. at 436-39; see also Restatement (Third)

of Torts: Liability for Physical and Emotional Harm § 51 cmt. a

(2012) (noting that the "status-based duties for land possessors

are not in harmony with modern tort law").

We reject defendants' argument in their brief suggesting

that they are absolved of any duty to maintain the safe

condition of the residence in this case because the fraternity

brothers rented the house from a landlord. Although in some

instances a renter of property may have limited or no

responsibility for the condition of the premises, the law has

recognized that renters, at times, may be in the best position

to avoid or remove a known hazard, as opposed to an absent

landlord. Cf. Reyes, supra, 404 N.J. Super. at 450-55

(recognizing this principle but holding, under the facts of that

case, that a tenant who rented a beach house for two weeks was

not in the best position to identify and correct a hazard to

visitors); see also Restatement (Second) of Torts § 328E (1965)

(defining a possessor of land, for purposes of establishing a

duty of care, as "a person who is in occupation of the land with

the intent to control it"); Restatement (Third) of Torts, supra,

§ 49(a) (similarly defining a possessor of land). In fact, at

oral argument on the appeal, defense counsel acknowledged that,

18 A-5419-12T4
for example, if the fraternity brothers had brought a block of

ice on site for the party and the melting ice created a

dangerous wet floor, they could have had a duty to take

reasonable measures to mop it up and prevent an injury to one of

their guests.

We need not hinge our duty analysis in this case upon

whether the party hosted by the fraternity brothers rendered the

house a "commercial" establishment for purposes of premises

liability. In Gilhooly v. Zeta Psi Fraternity, 243 N.J. Super.

201, 207-08 (Law Div. 1990),11 the court concluded that a

fraternity, as a landowner in that case, could be subject to

liability for negligent maintenance of the house's sidewalk

area, given the defendant's hybrid use as a commercial and

residential property. However, we cast doubt upon that

reasoning in another sidewalk liability case, Avallone v.

Mortimer, 252 N.J. Super. 434 (App. Div. 1991), involving a

hybrid commercial/residential building, although Avallone did

not involve a fraternity. See also Luchejko v. City of Hoboken,

207 N.J. 191, 211 (2011) (holding that a condominium complex was

"residential" and therefore not subject to sidewalk liability).

11
Gilhooley is the only reported New Jersey case involving a
fraternity's potential liability for injuries occurring on the
premises. Unlike the present case, it did not involve an injury
to a fraternity guest caused by a third-party's violent criminal
act.

19 A-5419-12T4
 Because the shooting of plaintiff was not reasonably

foreseeable, it does not matter if we classify the fraternity in

this case as a commercial or a noncommercial defendant. Hence,

we need not consider, despite plaintiff's urging that we do so,

whether the alleged five-dollar cover charge for the party

affected the fraternity's legal status. Even if the house were

deemed a "commercial" location, defendants would be liable only

if the shooting was reasonably foreseeable. Butler v. Acme

Markets, Inc., 89 N.J. 270 (1982).

The most analogous case law within our State to consider

here relates to the narrow instances in which a plaintiff was

injured by a criminal act on the defendant's premises and

claimed that the defendant was liable in failing to take

measures that might have prevented that conduct. The two key

Supreme Court cases on this subject are Butler, supra, 89 N.J.

at 270 and Clohesy, supra, 149 N.J. at 496, neither of which

proves helpful to plaintiff on the facts in this case.

In Butler, the plaintiff, a shopper at the defendant's

grocery store, was attacked, robbed and injured in the store's

parking lot. Butler, supra, 89 N.J. at 274. The evidence showed

that there had been seven muggings on the premises in the prior

year, five of which occurred in the evenings during the four-

month period preceding the plaintiff's attack. Ibid. Despite

20 A-5419-12T4
this pattern of repeated on-site muggings, the store only

assigned a single security guard to the premises, who primarily

remained inside the store. Id. at 274-75. The Court held that

under these circumstances, the store owed a duty to either warn

or provide adequate security protection to its endangered

patrons. Id. at 280-82.

Thereafter, in Clohesy, the Supreme Court dealt with the

kidnapping and murder of a seventy-nine-year-old woman from a

supermarket parking lot. Id. at 500. In assessing whether the

defendant grocery store owed plaintiff a duty of care to prevent

such criminal acts, the Court adopted a "totality of the

circumstances" analysis. Id. at 514. Under such an approach,

the Court ruled that the criminal act in that case, despite

other prior criminal acts on the premises, was sufficiently

foreseeable, given that (1) theft offenses frequently escalate

into more violent crimes, (2) the crime rate in the defendant's

area had increased substantially in the previous two years, and

(3) recent crime statistics indicated that approximately 757,000

violent crimes such as rape, robbery and assaults occurred in

parking lots located throughout the nation. Ibid.

The foreseeability assessment here is far different. As

Judge Chrystal aptly recognized, there was no previous pattern

of criminal conduct at the fraternity members' house that would

21 A-5419-12T4
have or should have alerted the individual defendants that an

unknown third-party would pull out a gun and shoot at another

guest in the backyard. The slim evidence plaintiff offers about

having once seen a knife in a bedroom and witnessing sporadic

arguments on the premises are not the sort of events that would

likely escalate into gunfire at a party. The evidence does not

come close to the sort of proof that would give rise to a duty

to have prevented the gunfire here.

No witness saw the shooter possessing a gun, drinking

heavily, acting belligerently, or otherwise displaying a

volatile or dangerous propensity until the argument in the

backyard erupted. Nor could it be reasonably foreseen that

plaintiff would attempt to intercede in the altercation.

Although the house was 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.

Foreseeability is essentially "based on the defendant's

knowledge of the risk of injury." Podias v. Mairs, 394 N.J.

Super. 338, 350 (App. Div.), certif. denied, 192 N.J. 482

(2007). "In the end, a court must assess the totality of the

circumstances that a reasonable person would consider relevant

in recognizing a duty of care to another." Robinson v.

22 A-5419-12T4
Vivirito, 217 N.J. 199, 209 (2014) (citing Clohesy, supra, 149

N.J. at 508). Here, we fully concur with the trial court's

conclusion that the occurrence of gunfire at the party was not

reasonably foreseeable, even viewing the record in a light most

favorable to plaintiff.

In reaching that conclusion, we do not suggest (and nor

does defense counsel) that a fraternity or its members could

never be liable for criminal or other dangerous behavior that

occurs during the course of a party hosted by fraternity

members. We are cognizant of the tragic consequences of hazing,

excessive drinking, sexual assaults, and other harmful acts that

have occurred at fraternity houses or at other fraternity

events. We applaud efforts that are being made to prevent such

tragedies. But the facts here do not even approach a proper

basis for imposing civil damages liability upon these

defendants.

Applying the four-factor duty analysis prescribed by

Hopkins, supra, 132 N.J. at 439, we agree with the trial court

that defendants owed no legal duty to prevent this criminal act.

The relationship of the parties and the shooter was transitory,

and there is no proof that the fraternity defendants had any

particular knowledge of the unknown assailant.

23 A-5419-12T4
 The nature of the risk is unclear given that a violent

criminal act, such as the shooting, is not one that is normally

associated with a social gathering of this nature. Thus, this

situation stands in stark contrast to situations where the risk

is reasonably well-defined. See, e.g., Kelly, supra, 96 N.J. at

548.

The opportunity and ability of the fraternity to have

exercised care to prevent the gunfire in this case is

theoretical at best. Plaintiff has provided no expert witness

or other persuasive basis to support the notion that the

fraternity should have installed a metal detector or frisked the

guests who arrived at the party. Even if the fraternity brothers

had demanded and checked identification of all guests entering

the house, there is no reason to believe that the shooter's mere

display of identification would have revealed to anyone that he

was likely to be carrying a loaded weapon.

The public interest also does not warrant the recognition

of the expansive duty of protection advocated by plaintiff.

Even assuming, for the sake of discussion, the shooting somehow

could be deemed reasonably foreseeable, the Supreme Court has

cautioned that "imposing a duty based on foreseeability alone

could result in virtually unbounded liability," and case law has

been "careful to require that the [duty] analysis be tempered by

24 A-5419-12T4
broader considerations of fairness and public policy." Desir,

supra, 214 N.J. at 319 (citing Kuzmicz v. Ivy Hill Apts., 147

N.J. 510, 515 (1997)). The imposition of a duty in these

circumstances would inject "far more confusion and uncertainty

than such a rule should express if it is to be a useful tool."

Desir, supra, 214 N.J. at 328.

The case law in the few other states that have addressed

issues of fraternity tort liability does not support plaintiff's

claims in this case. Indeed, in several reported out-of-state

cases, a defendant fraternity or its officers and its members

was found not liable in tort to an injured guest on the facts

presented. Ostrander v. Duggan, 341 F.3d 745, 749 (8th Cir.

2003) (finding that the defendant fraternity had no duty to

protect plaintiff from a sexual assault because the plaintiff

"adduced no evidence that would cause a reasonable person to

foresee injury to herself or other female visitors arising from

sexual misconduct at the [fraternity] premises"); Rogers v.

Sigma Chi Int'l Fraternity, 9 N.E.3d 755, 765 (Ind. Ct. App.

2014) (granting summary judgment to the national Sigma Chi

fraternity for what it deemed to be an "unforeseeable" criminal

assault of a party attendee by another guest); Colangelo v. Tau

Kappa Epsilon Fraternity, 517 N.W.2d 289, 292 (Mich. Ct. App.

1994) (finding that "the national fraternity owed no duty to

25 A-5419-12T4
supervise the local chapter's actions for the protection of

third parties" for injuries arising from a drunk driving

accident).

The main case that plaintiff relies on, Delta Tau Delta v.

Johnson, 712 N.E.2d 968, 973-74 (Ind. 1999), is factually

inapposite. In Delta Tau Delta, supra, the Indiana Supreme

Court determined that the Delta Tau Delta ("DTD") fraternity

owed a duty to a plaintiff who was sexually assaulted. Of

particular importance for the Indiana Supreme Court's decision

were several facts —— none of which are present here —— that the

Court believed made the ultimate sexual assault foreseeable.

Specifically, the Indiana justices noted that:

Within two years of this case, two specific
incidents occurred which warrant
consideration. First, in March 1988, a
student was assaulted by a fraternity member
during an alcohol party at DTD. Second, in
April 1989 at DTD, a blindfolded female was
made, against her will, to drink alcohol
until she was sick and was pulled up out of
the chair and spanked when she refused to
drink. In addition, the month before this
sexual assault occurred, DTD was provided
with information from National concerning
rape and sexual assault on college campuses.
Amongst other information, DTD was made
aware that "1 in 4 college women have either
been raped or suffered attempted rape," that
"75% of male students and 55% of female
students involved in date rape had been
drinking or using drugs," that "the group
most likely to commit gang rape on the
college campus was the fraternity," and that
fraternities at seven universities had

26 A-5419-12T4
 "recently experienced legal action taken
against them for rape and/or sexual
assault."

[Id. at 973-74.]

The record in this case is devoid of any such similarly alarming

data or prior instances of criminal acts. Plaintiff offers no

proof that the fraternity members should have been aware of the

level of crime at or around the house, or that crime had risen

in the area, or that there was a need for any, much less

additional, security.

We therefore affirm the trial judge's grant of summary

judgment in favor of defendants. In light of that disposition

on the merits, we need not address the issues raised concerning

the relationship of TKE national to TKE local and to the

fraternity officers and members who leased the house. Nor do we

need to address the cross-appeals of Tattoli and De Sousa

concerning the statute of limitations, since the claims against

them have been dismissed on the merits.

Affirmed.

27 A-5419-12T4