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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 Ass'n 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 tenant's
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 tenant's 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 market's 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 defendant's 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.
Kennedy's 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 landowner's 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 landowner's 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 owner's liability for off-premises injuries.
Critical to those decisions is the premise that a landowner's 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. Auletto's 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
caterer's 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 tenant's 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 owner's 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 store's 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 landlord's
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.
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