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Tuesday, February 26, 2008

Store, Mall, Business and Bar Liability for Criminal Attack based on Inadequate Security

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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.

Assistant Editor: Ernest Fantini