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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) 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 Trial Attorney
to discuss your rights.
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