B.M.K., ETC. VS. W.A. (L-10916-15, BERGEN COUNTY AND STATEWIDE)

B
                                NOT FOR PUBLICATION WITHOUT THE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-2658-19

B.M.K., as
Natural Guardian & Biological
Parent of S.K., a Minor,

          Plaintiff-Appellant,

v.

W.A. and S.B.A.M.,

          Defendants,

and

W.L.A. and V.A.,

     Defendants-Respondents.
___________________________

                   Argued April 13, 2021 – Decided May 24, 2021

                   Before Judges Gilson, Moynihan and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-10916-15.

                   Louis M. DiLuzio argued the cause for appellant (The
                   Choi Law Group, LLC, attorneys; Louis M. DiLuzio,
                   on the briefs).
            Kelly A. Weber argued the cause for respondent
            (Chasan Lamparello Mallon & Cappuzzo, PC,
            attorneys; John V. Mallon, of counsel and on the brief;
            Kelly A. Weber, on the brief).

PER CURIAM

      Plaintiff B.M.K., as natural guardian and biological father of S.K.,

brought a multi-count complaint against, among others, 1 defendants W.L.A. and

V.A. alleging defendants' son, forty-eight-year-old W.A., Jr., (Junior), a

convicted sex offender, sexually assaulted S.K. in a vehicle outside a house

defendants owned after he offered to give her a ride home. Junior lived in that

house.   Then-sixteen-year-old S.K. was visiting as a guest of Junior's

stepdaughter.2

      Plaintiff appeals from the trial judge's order dismissing his initial

complaint without prejudice and a subsequent order dismissing his amended

complaint with prejudice.     Plaintiff argues the judge erred because both

complaints sufficiently pleaded causes of action for negligence.


1
 The complaint included causes of action against defendants' son and his wife.
The orders under review do not pertain to those defendants.
2
  We use initials to protect the privacy of plaintiff's daughter. See R. 1:38-
3(c)(12). We use familiar appellations for defendants to avoid confusion
because they have the same surname. We intend no familiarity by our practice.


                                                                         A-2658-19
                                       2
      We review dismissal orders entered pursuant to Rule 4:6-2(e) de novo,

"apply[ing] the same standard that bound the trial judge and, therefore, 'search[]

the complaint in depth and with liberality to ascertain whether the fundament of

a cause of action may be gleaned even from an obscure statement of claim,

[giving] opportunity . . . to amend if necessary.'" Wild v. Carriage Funeral

Holdings, Inc., 

458 N.J. Super. 416

, 423 (App. Div. 2019) (second and third

alterations in original) (quoting Printing Mart-Morristown v. Sharp Elecs., 

116

N.J. 739

, 746 (1989)), aff'd 

241 N.J. 285

 (2020). We "are unconcerned with the

plaintiff's ability to prove what is alleged, and instead consider only whether –

after giving [the] plaintiff the benefit of 'every reasonable inference of fact' – a

sustainable claim has been pleaded.          This examination is 'painstaking and

undertaken with a generous and hospitable approach.'" 

Ibid.

 (quoting Printing

Mart, 

116 N.J. at 746

). "[A]t the pleading stage of [a] case, in which the facts

have yet to be developed[, a] plaintiff is entitled to every reasonable inference

of fact, [when a court determines whether] plaintiff has stated a claim sufficient

to survive [a] motion to dismiss under Rule 4:6-2." Wild, 

241 N.J. at 287

. The

standard is the same for both complaints and amended complaints. See Smith

v. Datla, 

451 N.J. Super. 82

, 88, 105 (App. Div. 2017). "We thus examine the

judge's dismissal of the [negligence] claims by assuming the truth of the


                                                                              A-2658-19
                                         3
[complaint's] factual allegations and by drawing reasonable inferences that

suggest a cause of action." Wild, 

458 N.J. Super. at 424

.

        Although plaintiff did not know the specific extent of Junior's prior record,

he averred3 defendants knew or should have known their son had "a long history

of committing sex-based crimes against minor females" and had been released

from prison approximately three months before he assaulted S.K. 4 After his

release, defendants allowed Junior to reside in a house they owned in another

municipality. Plaintiff asserted causes of action for: (1) "negligently failing to

maintain[] and/or permitting [the dangerous condition caused by Junior's

occupancy] to remain in an unsafe condition, and taking any steps whatsoever

to protect and safeguard invitees about said dangerous and unsafe condition";

(2) negligently breaching their duty to invitees, "particularly female minors like

S.K., to disclose, notify or otherwise warn them and/or their . . . parents" about

Junior's "history of sexual assaults against minor females" and "to take

reasonable measures and precautions to prevent their . . . son . . . from having

unsupervised contact with a minor child" to prevent the "foreseeable risk" he


3
    We recite the allegations set forth in plaintiff's amended complaint.
4
  Plaintiff's amended complaint alleges Junior pleaded guilty to second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(1), and third-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a).
                                                                               A-2658-19
                                          4
would commit sexual assault; and (3) negligently breaching their "duty to

protect and safeguard S.K. against any dangerous or harmful acts, including but

not limited to sexual abuse, assault and battery, while on their property."

      The judge dismissed the complaints concluding defendants, who lived in

a separate residence in another municipality, owed no duty to plaintiff.

Specifically, the judge determined

            [t]he existing law as I read it, although there's not a
            specific case in New Jersey dealing with the exact set
            of facts in this particular case is that there is no parental
            duty to supervise when they're living apart, adult
            children. And whether you want to call this particular
            case a lack of supervision, negligent supervision, you
            want to call it a different theory of negligent
            entrustment of a house or whether the plaintiff is in a
            protected class, I think it's pretty eviden[t] that as a
            minor plaintiff, minor female plaintiff, there'[re]
            criminal statutes that protect this type of activity that
            the offender did and for what [h]e's presently in jail. It's
            [an] unfortunate incident. But no new facts are alleged,
            and it's a notice requirement state. The pleadings when
            I compared visually when I read the amended complaint
            to the facts alleged in the original complaint, which I
            dismissed against the adult parents who lived in a
            different town, I really didn't see much in the way of
            material differences.

            And so respectfully I'm the first one, my heart bleeds
            for this young lady, but from a legal duty perspective I
            still do not see there's a legal duty on the . . . non-minor
            adult son who is the offender, his parents, living in a
            different town. I do not see there being a legal duty.


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                                         5
      We reverse and remand because discovery should have been completed

before that determination was made.

      Duty "is not a rigid formalism that remains static through time, but rather

is a malleable concept that must of necessity adjust to the changing social

relations and exigencies and man's relation to his fellows." J.S. v. R.T.H., 

155

N.J. 330

, 339 (1998) (quoting Wytupeck v. Camden, 

25 N.J. 450

, 462 (1957))

(internal quotation marks omitted). Determining the existence of a duty and its

scope are questions of law. Robinson v. Vivirito, 

217 N.J. 199

, 208 (2014). The

New Jersey Supreme Court has long instructed that "fairness" be the touchstone

when analyzing legal duty, Goldberg v. Hous. Auth. of Newark, 

38 N.J. 578

,

583 (1962); see also Est. of Desir ex rel. Estiverne v. Vertus, 

214 N.J. 303

, 322

(2013), because the imposition of legal duty must "generate intelligible and

sensible rules to govern future conduct," Hopkins v. Fox & Lazo Realtors, 

132

N.J. 426

, 439 (1993); see also Vertus, 

214 N.J. at 323

.

      The trial judge properly assumed, for the purposes of analyzing the motion

to dismiss under Rule 4:6-2(e), defendants knew of Junior's history of sex crimes

and perceived there was a foreseeability of harm. The judge also recognized an

analysis of defendants' duty is guided by the four Hopkins factors. See Hopkins,

132 N.J. at 439

 (holding a judge must also determine "whether the imposition


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                                       6
of such . . . duty satisfies an abiding sense of basic fairness under all of the

circumstances in light of considerations of public policy"). Judges are required

to identify, weigh, and balance: (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." 

Ibid.

      All of those factors are best analyzed on a full and complete record of

facts pertinent to each. For example, in considering the third Hopkins factor in

connection with the initial complaint, the trial judge reasoned that factor

weighed against imposing a duty on defendants because

            the elderly parents of an adult child would have no
            opportunity/ability to exercise care regarding their
            adult son's one[-]time interaction with the minor
            plaintiff in a different town.[5] It is unclear as to what
            the "care" would, or could, consist of, even if it were to
            take place.


5
  Plaintiff argues the judge went beyond the complaint's four corners in finding
defendants parents were elderly. "In reviewing a complaint dismissed under
Rule 4:6-2(e)[, our] inquiry is limited to examining the legal sufficiency of the
facts alleged on the face of the complaint." Flinn v. Amboy Nat'l Bank, 

436 N.J.
Super. 274

, 286 (App. Div. 2014) (quoting Printing Mart, 

116 N.J. at 746

).
Under Rule 4:6-2(e), a motion to dismiss is treated as a motion for "summary
judgment and disposed of as provided by R[ule] 4:46" if matters outside the
pleading are presented. Judges, however, may properly consider documents
referred to in a complaint and provided by way of a motion to dismiss the
complaint under Rule 4:6-2(e), without converting the motion into a motion for
summary judgment. N.J. Citizen Action, Inc. v. Cnty. of Bergen, 

391 N.J.
Super. 596

, 605 (App. Div. 2007).
                                                                            A-2658-19
                                        7
            Would it be a sign giving notice of the fact that the adult
            son was a sex offender? With constant monitoring to
            make sure it was not taken down?

            Where would it be hung?

            Would it be constant surveillance of the son's activities,
            both in the house and in his car?

            Would it be forcing the eviction of the adult son's
            family from the parents' owned residence in question?
            Would the family, including the adult son, simply move
            to another town?

      Analyzing the third Hopkins factor ordinarily requires a thorough factual

assessment for a court to determine whether it could "articulate[] workable

guidelines . . . [to] minimize the risk of harm." Davis v. Devereux Found., 

209

N.J. 269

, 297 (2012); see also Shields v. Ramslee Motors, 

240 N.J. 479

, 494

(2020) (declining to impose duty on landlord where the harm is beyond

landlord's control and where a commercial tenant had the ability and opportunity

to avoid the harm); Hopkins, 

132 N.J. at 444-45

 (in imposing a duty on realtors

to inspect premises before potential buyers enter, our Supreme Court provided

a description of what that inspection should entail). Likewise, an analysis of

"the public interest in the proposed solution," the fourth factor, see Hopkins, 

132

N.J. at 439,

 is best made after full disclosure of the circumstances that may

establish an interest for which the solution is proposed.


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                                        8
      We thus reverse the orders of dismissal and remand to allow the trial judge

to better perform the fact-sensitive analysis of the Hopkins factors after the facts

are fully developed. In remanding, we take no position on whether plaintiff has

developed or ultimately will develop facts that establish a duty owed by parent

defendants. We remand to give plaintiff an opportunity to conduct focused

discovery to see if facts can be discovered. Moreover, our remand does not

preclude the parents from moving for summary judgment after discovery has

been conducted if they believe that the material facts do not establish that they

had a duty to plaintiff.

      Reversed and remanded. We do not retain jurisdiction.




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