MBA 650 Managerial Responsibility & The Law, Case study

Please read the attached case opinion in Kuehn v. Pub Zone and answer the 10 questions about the case

Kuehn v. Pub Zone, 364 N.J. Super. 301 (2003)

This case involved the savage beating of a bar patron, Karl Kuehn, by two motorcycle gang members, Rhino and Backdraft, who were also bar customers. The beating occurred in the Pub Zone bar. As a result of this incident, the government prosecuted Rhino and Backdraft in a criminal prosecution. In a separate civil suit, Kuehn sued the Pub Zone and its owner, Maria Kerkoulas, along with others, for the tort of negligence. Review the edited opinion posted in Moodle and answer the following questions about this case:

Who is the plaintiff in this case?

Who are the four defendants in this case?

Why do you believe Kuehn sued the Pub Zone, rather than Rhino and Backdraft, for the tort of negligence? [Note that Kuehn could have also sued Rhino and Backdraft for torts like assault and battery].

Which court decided this case (i.e., which court wrote the opinion you have been assigned to read)?

Regarding the previous question, is the court that wrote this opinion a federal or state court? Is the court that wrote this opinion a trial or appellate court?

To fully understand a case, it is critical to determine the procedural context of a court’s opinion in that case. When you are reading an appellate court decision like this, be aware that this case has already been through the trial court and is now on appeal. In its opinion, the appellate court will often tell the reader what happened at the trial level. According to this opinion, what did the trial judge do after the jury rendered a verdict for the plaintiff? Did the trial court accept or overturn the jury’s verdict, and on what basis?

Turning to the Analysis section of this opinion, what are the four elements of negligence as stated by the court?

As the court notes, the critical negligence element at issue in this case was the element of duty. How did the appellate court in this case rule on the element of duty? In other words, according to the opinion of the Superior Court of New Jersey, Appellate Division, did the Pub Zone have a duty to take reasonable precautions against the danger posed by the Pagans? Why or why not?

As we will learn in this course, an appellate court can overturn a trial court’s decision if it disagrees with that decision. This means that you must read the entire opinion of an appellate court to determine the final outcome of this case. What exactly was the final outcome of this case? Was the jury’s verdict in favor of Kuehn reinstated?

As a final matter, the Pub Zone argued on appeal that the jury’s verdict of $300,000 was so disproportionate to the plaintiff’s injuries as to “shock the judicial conscience” and provide grounds for a new trial. The appellate court disagreed, reasoning that the $300,000 verdict was appropriate in light of the severity of the plaintiff’s injuries. The court’s reasoning on this point is below:

[W]e find nothing to shock the judicial conscience in a verdict of $300,000 in this matter.*** A facial attack of sufficient ferocity as to result in a cervical herniation, basal skull fracture, bleeding within the brain, the destruction of the orbit of the eye with reconstructive surgery on two occasions, together with other injuries, cannot be deemed inconsequential***. We thus find *** that the jury’s verdict was well within the range of that which was permissible, and we decline to interfere with it.

Do you agree with the court’s reasoning on this point? Why or why not?

Kuehn v. Pub Zone, 364 N.J. Super. 301 (2003)
[This opinion has been edited by the author to provide focus on the key elements. Edits are indicated through brackets [] or through ***.
In addition, certain language has been bolded or underlined for emphasis. Unless otherwise indicated, all footnotes have been omitted. In
addition, case citations have been omitted or edited to conform to BlueBook citation requirements].
Superior Court of New Jersey,
Appellate Division.
Karl KUEHN, Plaintiff–Appellant/Cross–Respondent,
v.
PUB ZONE, Defendant–Respondent/Cross–Appellant,
and
Maria Kerkoulas, Arm Supply Company, Inc., and Anthony Zois, Defendants.
Nov. 24, 2003.
Before Judges STERN, PAYNE and KIMMELMAN.
The opinion of the court was delivered by PAYNE, J.A.D.
Plaintiff Karl Kuehn was severely injured when attacked in the men’s room of a tavern in the Township
of Union known as the Pub Zone by three members of the Pagan motorcycle gang. [Kuehn then sued the
Pub Zone and others for negligence.] Following trial, a $300,000 verdict in plaintiff’s favor was entered
against the Pub Zone. However, the trial judge [then overturned the jury’s verdict and] granted judgment
notwithstanding the verdict (JNOV) to [the Pub Zone], finding the facts established that no foreseeable
danger was posed by the Pagans and that the tavern owed no duty to plaintiff that was breached. Plaintiff
has appealed from the JNOV. *** [For the reasons set forth below, w]e reverse the trial court’s
determination to grant a JNOV [and reinstate the jury’s verdict against the Pub Zone]***.
I. [Background Facts]
[The following facts were established by the evidence presented at trial]. Plaintiff was injured on May
30, 1998 while a patron at the Pub Zone. At the time, Maria Kerkoulas was the Pub Zone’s co-owner
***. Kerkoulas *** was tending the Pub Zone’s upstairs bar when plaintiff was attacked.
Prior to Kerkoulas’s ownership of the bar, it had been taken over as a biker hangout, and frequent
incidents had occurred that included destruction of property. During this period, Kerkoulas had served as
a bartender. Upon purchasing the establishment, Kerkoulas sought the assistance of the Union police in
ridding the bar of its biker clientele. According to Kerkoulas, the police showed her a pamphlet
regarding biker gangs, including the Pagans, who were described in it as “a bunch of outlaws.”
Establishments were warned to be wary of the Pagans, because they were troublemakers and were
known to assault people for no reason. In addition to reading the pamphlet, Kerkoulas had knowledge of
the Pagans from her conversations at a nearby bar that the Pagans frequented. As a result of those
conversations, she *** knew they were “trouble.”
1
Kerkoulas testified that the Union police advised her to put up a sign stating that persons wearing
“colors” (a term meaning gang insignia) were not allowed in the premises. She did so and instructed her
doormen to deny entry to persons fitting that description. When asked why she adopted these measures,
Kerkoulas testified that if bikers wearing insignia were not present, no disturbances would occur, and
people would not get beaten up. Kerkoulas stated that strict enforcement of her policy and calls to the
police when insignia-wearing bikers gained entry had eliminated “a lot” of the trouble at the bar, and
that the clientele had changed. ***
On the night at issue, three bikers including Rhino and a man known as “Backdraft” had pushed past
Petey, the doorman, and had entered the Pub Zone wearing their colors. *** Plaintiff [Kuehn] testified
that he recognized Pagans as part of a “drifter, criminal element,” he was “concerned” by their entry,
and he stated to Petey that he didn’t think their presence was a “great idea.” However, *** Kerkoulas
permitted the three to remain for one drink.***
All agreed that the Pagans consumed one drink without incident and proceeded toward the stairs leading
toward the downstairs bar and men’s room and toward the exit. Kerkoulas assumed the three were
leaving, but did not witness them doing so. In fact, they did not. Instead, they either entered the men’s
room with plaintiff or followed him there, and shortly thereafter, they viciously attacked him. Plaintiff
has no recollection of the attack and no explanation of its motive, unless, he speculates, it was a reaction
to plaintiff’s attempt to bar them from entering the establishment.
Plaintiff sustained injuries in the attack including loss of consciousness, *** brain hemorrhage, a C–5,6
disc herniation ***, a right orbital fracture, maxillary fractures, and a basilar skull fracture***. He was
hospitalized initially from May 30 to June 2, 1998. He underwent two reconstructive surgeries to his eye
socket.*** Continuing symptoms remain. ***
At the time of the attack, approximately 125 to 130 patrons were present in the bar***. The bar had one
doorman, Petey, stationed at the front entrance***. There was one bartender in the downstairs bar and
two bartenders, including Kerkoulas, upstairs. No other security was present, no training in security
techniques had been provided to bar personnel, and no background in security measures was required for
employment.
Plaintiff, an avowed motorcycle enthusiast and maker of custom cycles, was a motorcycle owner and
frequent participant in motorcycle rallies. He was not a member of any biker gang, and had no
reputation for violence, being described by Kerkoulas as quiet and very friendly. There is no claim that
plaintiff was intoxicated at the time of the attack or that he provoked it.
II. [Analysis]
[At trial in this case, the jury was asked to determine whether the Pub Zone was negligent, whether that
negligence was causally related to plaintiff’s injuries and, if so, the amount of damages sustained. “The
fundamental elements of a negligence claim are [1] a duty of care owed by the defendant to the plaintiff,
[2] a breach of that duty by the defendant, [3] injury to the plaintiff proximately caused by the breach,
and [4] damages.” Coleman v. Martinez, 254 A.3d 632, 642 (N.J. 2021)].
In granting JNOV in this case, the trial judge found [the first element of negligence lacking because the
judge believed the Pub Zone had] no duty to protect plaintiff *** under the circumstances presented.
2
First, the court found that injury to plaintiff was not foreseeable. *** [T]he [trial] court reasoned [that] it
was foreseeable that an attack by bikers wearing colors would occur only when a rival gang was present,
and none was at the bar on the night in question. *** The [trial] court found further that *** there was
nothing that could have been done to prevent the attack. [According to the trial court:]
[The attack] occurred in the bathroom, and without any shouting having preceded it, without
*** any reason, *** other than wearing of the colors *** [that] imposed a duty to have them
monitored every moment that they were in the premises.
[Since] danger was not foreseeable, the court found that no such duty existed. [As we explain below,
this decision was erroneous and must be overturned].
***
The existence or not of a duty of care is a legal issue to be determined by the court. *** Whether a duty
exists depends upon an evaluation of a number of factors including “[t]he nature of the underlying risk
of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the
harm, the comparative interests of, and the relationships between or among the parties, and, ultimately,
based on considerations of public policy and fairness, the societal interest in the proposed solution.”
[case citations omitted]. ***
[When analyzing foreseeability as it impacts duty, we are mindful that] “[t]he risk reasonably to be
perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of
injury to another person, that is taken into account in determining the existence of the duty to exercise
care.” [citation omitted]. ***
“Business owners and landlords have a duty to protect patrons and tenants from foreseeable
criminal acts of third parties occurring on their premises.” [case citations omitted]. As the Court
held in [Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502, 694 A.2d 1017, 1020 (1997)],
foreseeability does not require the existence of prior similar criminal incidents, but depends instead on
an evaluation of the totality of the circumstances. Clohesy, 694 A.2d at 1022–24.
[T]he Court in *** Clohesy adopted the Restatement (Second) of Torts Section 344, Comment (f) as a
standard for determining in cases of injury by third persons “which criminal incidents may give rise to
liability.” *** Comment (f) to that Section states:
Duty to police premises. 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. ***
We find the totality of the circumstances presented in this case, when viewed in light of comment
(f)***, give rise to a duty on the part of the Pub Zone to have taken reasonable precautions against the
danger posed by the Pagans as a group. In this case, there was no reason to suspect any particular Pagan
of violent conduct. Nor was violence to be expected at any particular time or in any particular
3
circumstance. However, the gang was collectively known to Kerkoulas *** to engage in random
violence.[1] Thus, in the language of Comment (f), Kerkoulas had knowledge as the result of past
experience and from other sources that there was “a likelihood of conduct on the part of third persons in
general” that was “likely to endanger the safety” of a patron at some unspecified future time. A “duty to
take precautions” against the endangering conduct thus arose. *** Fairness and public policy dictate the
recognition of a duty in this context, since no one would argue that *** preventable violence should be
permitted to occur. *** Moreover, we do not find the cost of reasonable security measures to be
prohibitive in this context.
*** To fulfill its duty in this context, the Pub Zone was merely required to employ “reasonable” safety
precautions. *** It already had in place a prohibition against entry of Pagans and other bikers who were
wearing their colors, and that prohibition, together with the practice of calling the police when a breach
occurred, had been effective in greatly diminishing the occurrence of biker incidents on the premises.
The evidence establishes that the prohibition was not enforced on the night at issue, that three Pagans
were permitted entry while wearing their colors, and the police were not called. *** [For these reasons,
the Pub Zone did not fulfill its duty in this case due to its failure to exercise reasonable precautions on
the night in question]. As Kerkoulas herself admitted, if the Pagans had not been present, the attack
would not have occurred. *** The jury’s verdict on the issue of liability must therefore be reinstated.[2]
*** The order of judgment notwithstanding the verdict is reversed and the [jury’s] verdict in plaintiff’s
favor is reinstated.***
1
[On this point, the court declared: Kerkoulas had actual knowledge of a risk of injury from bikers as the result of her
experiences as a barkeeper prior to and immediately following her purchase of the Pub Zone. She admitted that she had
received additional information regarding the Pagans from a nearby tavern owner and from the Union police. As a result, she
understood that they were troublemakers who were known to assault people for no known reason. In Kerkoulas’s mind, the
foreseeable risk of Pagan violence was sufficient to cause her to place a sign at the entrance to her premises warning that
Pagans wearing colors would be barred from entry and to summon the police if unauthorized entry were gained.]
2
[Later in its opinion, the court noted the following: Our decision is supported by the testimony of plaintiff’s expert on
security, Leslie Cole, who testified at trial]. Cole, who holds a masters degree in criminal justice from John Jay College of
Criminal Justice, is a certified protection professional *** [who] has testified as a forensic expert in cases involving tavern
and hotel security and ha[s] been qualified as an expert throughout New Jersey as well as in other states. *** Cole testified
that generally accepted security principles require a focus first upon the foreseeability of harm. That, he stated, was
established by Kerkoulas’s own testimony regarding her knowledge of the dangers posed by the Pagans and was confirmed
by his own reading regarding them. Once a foreseeable danger from the Pagans was found to exist, security principles
required that the tavern either prevent them from entering the premises or that it provide adequate numbers of trained and
identifiable security personnel at the door and within the premises to avert foreseeable harm. Here, Cole noted, added
evidence of potential violence was provided by the fact that three Pagans, wearing gang insignia, “muscled their way in
initially” despite a sign prohibiting entry. Nonetheless, Kerkoulas, with knowledge of the heightened danger, breached
accepted security principles by failing to deny entry to the Pagans, by not calling the police once they had gained access to
the premises, and by not providing security within the bar, consisting of one person upstairs and one downstairs, to
continuously monitor the Pagans’ presence until they left.]
4
Kuehn v. Pub Zone, 364 N.J. Super. 301 (2003)
[This opinion has been edited by the author to provide focus on the key elements. Edits are indicated through brackets [] or through ***.
In addition, certain language has been bolded or underlined for emphasis. Unless otherwise indicated, all footnotes have been omitted. In
addition, case citations have been omitted or edited to conform to BlueBook citation requirements].
Superior Court of New Jersey,
Appellate Division.
Karl KUEHN, Plaintiff–Appellant/Cross–Respondent,
v.
PUB ZONE, Defendant–Respondent/Cross–Appellant,
and
Maria Kerkoulas, Arm Supply Company, Inc., and Anthony Zois, Defendants.
Nov. 24, 2003.
Before Judges STERN, PAYNE and KIMMELMAN.
The opinion of the court was delivered by PAYNE, J.A.D.
Plaintiff Karl Kuehn was severely injured when attacked in the men’s room of a tavern in the Township
of Union known as the Pub Zone by three members of the Pagan motorcycle gang. [Kuehn then sued the
Pub Zone and others for negligence.] Following trial, a $300,000 verdict in plaintiff’s favor was entered
against the Pub Zone. However, the trial judge [then overturned the jury’s verdict and] granted judgment
notwithstanding the verdict (JNOV) to [the Pub Zone], finding the facts established that no foreseeable
danger was posed by the Pagans and that the tavern owed no duty to plaintiff that was breached. Plaintiff
has appealed from the JNOV. *** [For the reasons set forth below, w]e reverse the trial court’s
determination to grant a JNOV [and reinstate the jury’s verdict against the Pub Zone]***.
I. [Background Facts]
[The following facts were established by the evidence presented at trial]. Plaintiff was injured on May
30, 1998 while a patron at the Pub Zone. At the time, Maria Kerkoulas was the Pub Zone’s co-owner
***. Kerkoulas *** was tending the Pub Zone’s upstairs bar when plaintiff was attacked.
Prior to Kerkoulas’s ownership of the bar, it had been taken over as a biker hangout, and frequent
incidents had occurred that included destruction of property. During this period, Kerkoulas had served as
a bartender. Upon purchasing the establishment, Kerkoulas sought the assistance of the Union police in
ridding the bar of its biker clientele. According to Kerkoulas, the police showed her a pamphlet
regarding biker gangs, including the Pagans, who were described in it as “a bunch of outlaws.”
Establishments were warned to be wary of the Pagans, because they were troublemakers and were
known to assault people for no reason. In addition to reading the pamphlet, Kerkoulas had knowledge of
the Pagans from her conversations at a nearby bar that the Pagans frequented. As a result of those
conversations, she *** knew they were “trouble.”
1
Kerkoulas testified that the Union police advised her to put up a sign stating that persons wearing
“colors” (a term meaning gang insignia) were not allowed in the premises. She did so and instructed her
doormen to deny entry to persons fitting that description. When asked why she adopted these measures,
Kerkoulas testified that if bikers wearing insignia were not present, no disturbances would occur, and
people would not get beaten up. Kerkoulas stated that strict enforcement of her policy and calls to the
police when insignia-wearing bikers gained entry had eliminated “a lot” of the trouble at the bar, and
that the clientele had changed. ***
On the night at issue, three bikers including Rhino and a man known as “Backdraft” had pushed past
Petey, the doorman, and had entered the Pub Zone wearing their colors. *** Plaintiff [Kuehn] testified
that he recognized Pagans as part of a “drifter, criminal element,” he was “concerned” by their entry,
and he stated to Petey that he didn’t think their presence was a “great idea.” However, *** Kerkoulas
permitted the three to remain for one drink.***
All agreed that the Pagans consumed one drink without incident and proceeded toward the stairs leading
toward the downstairs bar and men’s room and toward the exit. Kerkoulas assumed the three were
leaving, but did not witness them doing so. In fact, they did not. Instead, they either entered the men’s
room with plaintiff or followed him there, and shortly thereafter, they viciously attacked him. Plaintiff
has no recollection of the attack and no explanation of its motive, unless, he speculates, it was a reaction
to plaintiff’s attempt to bar them from entering the establishment.
Plaintiff sustained injuries in the attack including loss of consciousness, *** brain hemorrhage, a C–5,6
disc herniation ***, a right orbital fracture, maxillary fractures, and a basilar skull fracture***. He was
hospitalized initially from May 30 to June 2, 1998. He underwent two reconstructive surgeries to his eye
socket.*** Continuing symptoms remain. ***
At the time of the attack, approximately 125 to 130 patrons were present in the bar***. The bar had one
doorman, Petey, stationed at the front entrance***. There was one bartender in the downstairs bar and
two bartenders, including Kerkoulas, upstairs. No other security was present, no training in security
techniques had been provided to bar personnel, and no background in security measures was required for
employment.
Plaintiff, an avowed motorcycle enthusiast and maker of custom cycles, was a motorcycle owner and
frequent participant in motorcycle rallies. He was not a member of any biker gang, and had no
reputation for violence, being described by Kerkoulas as quiet and very friendly. There is no claim that
plaintiff was intoxicated at the time of the attack or that he provoked it.
II. [Analysis]
[At trial in this case, the jury was asked to determine whether the Pub Zone was negligent, whether that
negligence was causally related to plaintiff’s injuries and, if so, the amount of damages sustained. “The
fundamental elements of a negligence claim are [1] a duty of care owed by the defendant to the plaintiff,
[2] a breach of that duty by the defendant, [3] injury to the plaintiff proximately caused by the breach,
and [4] damages.” Coleman v. Martinez, 254 A.3d 632, 642 (N.J. 2021)].
In granting JNOV in this case, the trial judge found [the first element of negligence lacking because the
judge believed the Pub Zone had] no duty to protect plaintiff *** under the circumstances presented.
2
First, the court found that injury to plaintiff was not foreseeable. *** [T]he [trial] court reasoned [that] it
was foreseeable that an attack by bikers wearing colors would occur only when a rival gang was present,
and none was at the bar on the night in question. *** The [trial] court found further that *** there was
nothing that could have been done to prevent the attack. [According to the trial court:]
[The attack] occurred in the bathroom, and without any shouting having preceded it, without
*** any reason, *** other than wearing of the colors *** [that] imposed a duty to have them
monitored every moment that they were in the premises.
[Since] danger was not foreseeable, the court found that no such duty existed. [As we explain below,
this decision was erroneous and must be overturned].
***
The existence or not of a duty of care is a legal issue to be determined by the court. *** Whether a duty
exists depends upon an evaluation of a number of factors including “[t]he nature of the underlying risk
of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the
harm, the comparative interests of, and the relationships between or among the parties, and, ultimately,
based on considerations of public policy and fairness, the societal interest in the proposed solution.”
[case citations omitted]. ***
[When analyzing foreseeability as it impacts duty, we are mindful that] “[t]he risk reasonably to be
perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of
injury to another person, that is taken into account in determining the existence of the duty to exercise
care.” [citation omitted]. ***
“Business owners and landlords have a duty to protect patrons and tenants from foreseeable
criminal acts of third parties occurring on their premises.” [case citations omitted]. As the Court
held in [Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502, 694 A.2d 1017, 1020 (1997)],
foreseeability does not require the existence of prior similar criminal incidents, but depends instead on
an evaluation of the totality of the circumstances. Clohesy, 694 A.2d at 1022–24.
[T]he Court in *** Clohesy adopted the Restatement (Second) of Torts Section 344, Comment (f) as a
standard for determining in cases of injury by third persons “which criminal incidents may give rise to
liability.” *** Comment (f) to that Section states:
Duty to police premises. 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. ***
We find the totality of the circumstances presented in this case, when viewed in light of comment
(f)***, give rise to a duty on the part of the Pub Zone to have taken reasonable precautions against the
danger posed by the Pagans as a group. In this case, there was no reason to suspect any particular Pagan
of violent conduct. Nor was violence to be expected at any particular time or in any particular
3
circumstance. However, the gang was collectively known to Kerkoulas *** to engage in random
violence.[1] Thus, in the language of Comment (f), Kerkoulas had knowledge as the result of past
experience and from other sources that there was “a likelihood of conduct on the part of third persons in
general” that was “likely to endanger the safety” of a patron at some unspecified future time. A “duty to
take precautions” against the endangering conduct thus arose. *** Fairness and public policy dictate the
recognition of a duty in this context, since no one would argue that *** preventable violence should be
permitted to occur. *** Moreover, we do not find the cost of reasonable security measures to be
prohibitive in this context.
*** To fulfill its duty in this context, the Pub Zone was merely required to employ “reasonable” safety
precautions. *** It already had in place a prohibition against entry of Pagans and other bikers who were
wearing their colors, and that prohibition, together with the practice of calling the police when a breach
occurred, had been effective in greatly diminishing the occurrence of biker incidents on the premises.
The evidence establishes that the prohibition was not enforced on the night at issue, that three Pagans
were permitted entry while wearing their colors, and the police were not called. *** [For these reasons,
the Pub Zone did not fulfill its duty in this case due to its failure to exercise reasonable precautions on
the night in question]. As Kerkoulas herself admitted, if the Pagans had not been present, the attack
would not have occurred. *** The jury’s verdict on the issue of liability must therefore be reinstated.[2]
*** The order of judgment notwithstanding the verdict is reversed and the [jury’s] verdict in plaintiff’s
favor is reinstated.***
1
[On this point, the court declared: Kerkoulas had actual knowledge of a risk of injury from bikers as the result of her
experiences as a barkeeper prior to and immediately following her purchase of the Pub Zone. She admitted that she had
received additional information regarding the Pagans from a nearby tavern owner and from the Union police. As a result, she
understood that they were troublemakers who were known to assault people for no known reason. In Kerkoulas’s mind, the
foreseeable risk of Pagan violence was sufficient to cause her to place a sign at the entrance to her premises warning that
Pagans wearing colors would be barred from entry and to summon the police if unauthorized entry were gained.]
2
[Later in its opinion, the court noted the following: Our decision is supported by the testimony of plaintiff’s expert on
security, Leslie Cole, who testified at trial]. Cole, who holds a masters degree in criminal justice from John Jay College of
Criminal Justice, is a certified protection professional *** [who] has testified as a forensic expert in cases involving tavern
and hotel security and ha[s] been qualified as an expert throughout New Jersey as well as in other states. *** Cole testified
that generally accepted security principles require a focus first upon the foreseeability of harm. That, he stated, was
established by Kerkoulas’s own testimony regarding her knowledge of the dangers posed by the Pagans and was confirmed
by his own reading regarding them. Once a foreseeable danger from the Pagans was found to exist, security principles
required that the tavern either prevent them from entering the premises or that it provide adequate numbers of trained and
identifiable security personnel at the door and within the premises to avert foreseeable harm. Here, Cole noted, added
evidence of potential violence was provided by the fact that three Pagans, wearing gang insignia, “muscled their way in
initially” despite a sign prohibiting entry. Nonetheless, Kerkoulas, with knowledge of the heightened danger, breached
accepted security principles by failing to deny entry to the Pagans, by not calling the police once they had gained access to
the premises, and by not providing security within the bar, consisting of one person upstairs and one downstairs, to
continuously monitor the Pagans’ presence until they left.]
4