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

NOT FOR PUBLICATION WITHOUT THE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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3

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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4

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.'"

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5

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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6

"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

A-5570-17T4

7

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

A-5570-17T4

8

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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10

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

A-5570-17T4

11

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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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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