Edited by Kenneth Vercammen
Many people are injured when attacked on a business
property, when the property owner fails to provide adequate security. Injured
persons may be able to recover damages plus payment of medical bills. The New
Jersey Supreme Court in Kuzmicz v. Ivy Hill Park Apartments, 147 N.J. 510.
(1997) recently reviewed liability for injuries suffered by people attacked.
The duty of landowners for injuries that occur on their premises, the analysis
no longer relies exclusively on the status of the injured party. Instead [t]he
issue is whether, in light of the actual relationship between the parties under
all of the surrounding circumstances, the imposition of a duty on the landowner
is fair and just. Brett v. Great Am. Recreation, 144 N.J. 479, 509 (1996)
(quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)). For
off-premises liability, the issue is substantially the same. In both contexts,
however, the analysis is fact-sensitive. Hopkins, supra, 132 N.J. at 439.
Ultimately, the determination of the existence of a duty is a question of
fairness and public policy. Snyder v. American Assn of Blood Banks, 144 N.J.
269, 292 (1996); Crawn v. Campo, 136 N.J. 494, 501 (1994); Dunphy v. Gregor,
136 N.J. 99, 108 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984); Goldberg
v. Housing Auth., 38 N.J. 578, 583 (1962). Foreseeability of injury to another
is important, but not dispositive. Snyder, supra, 144 N.J. at 292; Carter
Lincoln-Mercury v. EMOR Group, 135 N.J. 182, 194 (1994). Fairness, not
foreseeability alone, is the test. Relevant to the determination of the
fairness of the imposition of a duty on a landowner is the nature of the risk,
the relationship of the parties, the opportunity to exercise care, and the
effect on the public of the imposition of the duty. Dunphy, supra, 136 N.J. at
108; Hopkins, supra, 132 N.J. at 439; Goldberg, supra, 38 N.J. at 583.
Landlord liable to Tenant Consistent with that analysis, the Court has
found a landlord liable to a tenant for damages resulting from a burglary when
the landlord failed to replace a broken dead-bolt lock on the tenants
apartment. See Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975). The
apartment house was in an area where break-ins were common, and the landlord
had assured the tenant that it would repair the lock. Id. at 371-73.
Furthermore, a regulation of the Department of Community Affairs required the
landlord to furnish a working lock. Id. at 383-84. In that context, the Court
held, [a] residential tenant can recover damages from his landlord upon proper
proof that the latter unreasonably enhanced the risk of loss due to theft by
failing to supply adequate locks to safeguard the tenants premises after
suitable notice of the defect. Id. at 383. The Court likewise have imposed
liability on a landlord who provides inadequate security for common areas of
rental premises for the failure to prevent a criminal assault on a tenant. See
Trentacost v. Brussel, 82 N.J. 214 (1980). In Trentacost, the apartment was in
a high crime area. Id. at 218-19. Burglars and other unauthorized persons
previously had broken into the building. Id. at 219. Contrary to an
administrative regulation, the landlord had not installed a lock on the front
entrance. Id. at 222. On those facts, the Court held that [b]y failing to do
anything to arrest or even reduce the risk of criminal harm to his tenants, the
landlord effectively and unreasonably enhanced that risk. Ibid. The Court
relied in part on the implied covenant of habitability in the lease and stated
that [t]he premises which the landlord must secure necessarily encompass the
common areas of multiple dwellings. Id. at 228. In both Braitman and
Trentacost, the criminal act resulting in the imposition of liability on the
landlord occurred in the apartment house. Supermarket Liability Similarly, the
Court has held that the owner of a supermarket may be liable to a customer who
is mugged at night in the markets parking lot. See Butler v. Acme Markets,
Inc., 89 N.J. 270 (1982). In Butler, unknown to the customer, seven muggings
had occurred in the lot during the preceding year, five in the evenings during
the four months preceding the attack in question. Id. at 274. To combat the
muggings, the market had hired off-duty policeman. Ibid. At the time of the
attack, however, the only guard was inside the market; no one was on duty in
the parking lot. Id. at 275. In that setting, the Court held that the market
had a duty to protect the customer from foreseeable criminal activity. Id. at
284. Uniting Braitman, Trentacost, and Butler is the premise that landlords and
business owners should be liable for foreseeable injuries that occur on their
premises. The underlying rationale is that they are in the best position to
control the risk of harm. See Butler, supra, 89 N.J. at 284. Ownership or
control of the premises, for example, enables a party to prevent the harm.
Accord Steinmetz v. Stockton City Chamber of Commerce, 214 Cal. Rptr. 405, 408
(Ct. App. 1985) (reasoning that duty is grounded in possession of premises and
right to control and manage premises); LaFleur v. Astrodome-Astrohall Stadium
Corp., 751 S.W. 2d 563, 565 (Tex. Ct. App. 1988) (holding that duty to provide
protection arises from defendants power of control). Usually there is no
liability in off - premise assault. Courts from other states likewise have
refused to impose liability on commercial landowners for off-premises murder or
assault. See, e.g., Steinmetz, supra, 214 Cal. Rptr. at 408 (declining to
impose liability because of difficulty in defining scope of any duty owed by
landowner off premises and not controlled by him); Wofford v. Kennedys 2nd St.
Co., 649 S.W. 2d 912, 914 (Mo. Ct. App. 1983) (declining to impose liability on
tavern owner for injuries suffered by patron assaulted on adjacent public
street because otherwise line which would cut off the landowners liability
becomes nearly impossible to draw). Generally, a possessor of land is not
liable for off-premises injuries merely because those injuries are foreseeable.
See, e.g., MacGrath v. Levin Properties, 256 N.J. Super. 247 (App. Div. 1992),
certif. denied, 130 N.J. 19 (1992); Simpson v. Big Bear Stores Co., 652 N.E.2d
702, 705 (Ohio 1995); see generally Restatement (Second) of Torts § 314A
comment c (1965) (indicating possessor of land is not under duty to person
endangered or injured when one has ceased to be an invitee). That general rule
protects an abutting property owner from liability for injuries that occur on a
public way. See Restatement (Second) of Torts § 349 (1965); see also MacGrath,
supra, 256 N.J. Super. at 251-52 (noting court follows Restatement § 349
unless exception applies). Sidewalk Fall down Liability A narrow exception
imposes liability on commercial landowners for injuries to pedestrians on
abutting sidewalks. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981).
The duty to maintain the sidewalks flows from the economic benefit that a
commercial landowner receives from the abutting sidewalk and from the
landowners ability to control the risk of injury. Id. at 158; Davis v.
Pecoreno, 69 N.J. 1, 8 (1975) (holding gas station owner liable for injury
caused by packed snow and ice on abutting sidewalk because traffic was directly
beneficial to his business and enured to his economic benefit). Several
decisions of the Appellate Division delineate the appropriate limits of a
commercial property owners liability for off-premises injuries. Critical to
those decisions is the premise that a landowners liability may extend beyond the
premises for activities that directly benefit the landowner. Thus, the owner of
a shopping center was not liable to a woman who fell on a dirt path leading
from the shopping center to a parking lot. See Chimiente v. Adam Corp., 221
N.J. Super. 580 (1987). In Chimiente, sidewalks provided a safe alternative
route. Id. at 584. The dirt path conferred no direct economic benefit on the
shopping center. Ibid. Similarly, a shopping center on Route 22 was not liable
to a customer who was struck by a car while crossing the highway. See MacGrath,
supra, 256 N.J. Super. at 250-51, 253. A restaurant that provided parking on
the opposite side of the street, however, had a duty to provide safe passage
from the lot to the restaurant. See Warrington v. Bird, 204 N.J. Super. 611
(1985), certif. denied, 103 N.J. 473 (1986). The restaurant knew that its
patrons would cross the street, and derived a direct economic benefit from
their use of the path. Id. at 617. Finally, a caterer was found liable for the
death of a business invitee who was killed crossing a county highway after
parking her car in a lot the caterer knew or should have known the invitee
would use. See Mulraney v. Aulettos Catering, 293 N.J. Super. 315, certif.
denied, _ N.J. _ (1996). Prominent among the reasons for the imposition of
liability was the proposition that the use of the lot furthered the caterers
economic interest. Id. at 321. Critical to the imposition of liability is a
direct economic benefit to the commercial landowner from the path taken by the injured
party and the absence of an alternative route. Courts from other states
likewise have concluded that a landowner does not owe a duty to protect people
from criminal activity on adjacent premises that the landowner does not own or
control. See, e.g., Donnell v. California W. Sch. of Law, 246 Cal. Rptr. 199,
201 (Ct. App. 1988) (holding law school not liable merely because it took no
action to remedy dangerous condition on adjoining property); Steinmetz, supra,
214 Cal. Rptr. at 408-09 (holding tenant in industrial park not liable to
business invitee who was mugged a block away from tenants premises but within
park); National Property Investors, II, Ltd. v. Attardo, 639 So.2d 691 (Fla.
Dist. Ct. App. 1994) (holding no duty for store owner to protect customer from
assault in apartment premises when assailant followed customer from convenience
store to apartment house across street); Simpson, supra, 652 N.E.2d 702
(holding supermarket owners duty to warn or protect business invitees from
foreseeable criminal activity extends to premises in possession and control of
owner and therefore owner not liable for injuries suffered by patron attacked
in common area of shopping center). Southland Corp. v. Superior Court, 250 Cal.
Rptr. 57 (Ct. App. 1988), is consistent with that premise. In Southland, three
assailants attacked a customer from a convenience store in a parking lot ten
feet away from the stores property line. 250 Cal. Rptr. at 58. The customer
sued the lessee and sub-lessee, who were the franchisor and franchisee of the
store. Id. at 59. The master lease provided that the store could use the
adjacent lot for parking, and the injured customer believed that the store
controlled the lot. Id. at 58 n.1, 59. Many customers parked in the lot. Id. at
58. The lessees did not erect a fence or do anything else to discourage the
customers from using the lot. Id. at 59. Denying summary judgment for the
lessee and sub-lessee, the court relied on the fact that the store controlled
the lot and realized a significant commercial benefit from their customers use
of the lot . . . . Id. at 62-63. Absent a landlords control of an adjacent lot
or realization of a significant commercial benefit from tenants use of the lot,
the landlord does not owe a duty to warn tenants of the risk of criminal
assault on the lot. See Ibid. Conclusion There is a possibility of imposing on
a landlord a duty to pay a tenant for injuries sustained in a criminal attack
on its property to help compensate the tenant. In appropriate circumstances,
property owners may be liable if they negligently conduct activities that
expose others to foreseeable criminal attacks. Contact a Civil Trial Attorney
to discuss your rights.
