                  NOT FOR PUBLICATION WITHOUT THE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
