(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 3, 1997 -- Decided June 26, 1997
COLEMAN, J., writing for a unanimous Court.
The issue presented is whether the owner of a large supermarket had a duty in 1991 to provide security
or warnings in its parking lot to protect customers from criminal acts when similar criminal acts had not
previously occurred.
On July 15, 1991, Kathleen Dalton, who was seventy-nine, went shopping at the Foodtown Supermarket
on Broad Street in Red Bank. After completing her shopping at approximately 2:30 p.m., she was abducted in
her car from the Foodtown parking lot. The abductor, Philip Reardon, Jr., murdered Mrs. Dalton by
asphyxiation. He was later convicted of kidnapping, robbery, theft, and murder.
Mary Clohesy, executrix of Kathleen Dalton's estate, filed wrongful death and surivival actions against
Foodtown and Philip Reardon, Jr. The complaint alleged that Foodtown was negligent in failing to provide any
security or warnings in its parking lot.
Foodtown moved for summary judgment, arguing that it had breached no legal duty to Mrs. Dalton.
The trial court granted the motion. The complaint against Philip Reardon was voluntarily dismissed so Ms.
Clohesy could appeal the case as a final judgment.
The Appellate Division affirmed in a 2-to-1 decision. Because of the dissent, Ms. Clohesy filed an
appeal as of right with this Court.
HELD: Considering the evidence in the light of the totality of the circumstances, it was forseeable that over the
course of time a person would enter the parking lot of defendant supermarket and assault a customer. The
supermarket owed plaintiff's decedent a legal duty to provide some measure of security in its parking lot.
1. Whether a defendant owes a legal duty is generally a question of law for the court to decide. So is the scope
of such a duty. The forseeability of harm alone does not answer the question of whether a legal duty exists.
Forseeability in this case is limited to the existence and scope of duty owed by Foodtown to Mrs. Dalton. (pp.
5-6)
2. The Red Bank Police records disclosed approximately sixty criminal incidents on or near the Foodtown
premises in the 2½ years preceding the attack on Mrs. Dalton. As significant as the number of offenses was the
escalating nature of the occurrences on Foodtown's property. (pp. 7-8)
3. Prior cases have established that business owners and landlords have a duty to protect patrons and tenants
from forseeable criminal acts occurring on their property. The determination of whether a duty exists does not
depend on the existence of prior similar criminal incidents. To determine whether criminal incidents are
"forseeable," the Court has applied a "totality of circumstances" standard, which includes criminal activities in
close proximity to the landlowner's property. (pp. 8-14)
4. Decisions in other jurisdictions and prior cases in New Jersey have persuaded the Court to reject the "prior
similar incident" rule in favor of the totality of the circumstances approach. Furthermore, the courts in this State
have consistently applied that approach when determining the existence and scope of duty. (pp. 15-23)
5. Although the Court does not rely heavily on the common law classification of Mrs. Dalton as an invitee, that
status supports its conclusions. Having extended an invitation to Mrs. Dalton, Foodtown was obligated not to
engage in any affirmative actions or omissions that would unreasonably create or increase the risk of injury from
the criminal activity of a third party. The scope of the duty owed includes security for the parking lot. (pp. 24-29)
6. Although the Court is not requiring Foodtown to provide security guards, the duty to provide security may
include a security guard as well as any other security system or warnings deemed reasonable under all of the
circumstances. (pp. 29-30)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for further proceedings consistent with the Court's opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, and STEIN join in
JUSTICE COLEMAN's opinion. JUSTICE O'HERN did not participate.
SUPREME COURT OF NEW JERSEY
A-
126 September Term 1996
MARY CLOHESY, Executrix of the
Estate of KATHLEEN DALTON,
deceased,
Plaintiff-Appellant,
v.
FOOD CIRCUS SUPERMARKETS, INC., t/a
TWIN COUNTY GROCERS or FOODTOWN OF
RED BANK,
Defendant-Respondent,
and
PHILIP REARDON, JR.,
Defendant.
Argued March 3, 1997 -- Decided June 26, 1997
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 293
N.J. Super. 217 (1996).
Michael D. Schottland argued the cause for
appellant (Schottland, Manning & Rosen,
attorneys; Mr. Schottland and Nicholas C.
Caliendo, on the brief).
Jane Garrity Glass argued the cause for
respondent (Garrity, Graham & Favetta,
attorneys; Michael A. Graham, of counsel).
The opinion of the Court was delivered by
COLEMAN, J.
The issue in this appeal is whether the owner of a large
supermarket with a correspondingly large parking lot had a duty
in 1991 to provide security or warnings in its parking lot to
protect its customers from the criminal acts of third parties,
when prior similar criminal acts had not occurred in the parking
lot. Kathleen Dalton, a customer at defendant's supermarket, was
abducted from defendant's parking lot and later murdered. Prior
to this incident, there had never been an abduction on Food
Circus Supermarkets, Inc.'s ("Foodtown") property.
The trial court granted Foodtown's motion for summary
judgment, finding that plaintiff had failed to establish prior
similar incidents that would justify the imposition of a duty on
defendant. The Appellate Division affirmed, with one judge
dissenting.
293 N.J. Super. 217 (1996). Plaintiff has appealed
as of right based on that dissent. R. 2:2-1(a)(2). We now
reverse.
Plaintiff Mary Clohesy, executrix of Kathleen Dalton's
estate, filed wrongful death and survival causes of action
against Foodtown and Ms. Dalton's killer, Philip Reardon, Jr.
The complaint alleges that Foodtown was negligent in failing to
provide any security or warnings in the parking lot.
The facts surrounding the murder of Kathleen Dalton are
undisputed. On July 15, 1991, Ms. Dalton, who was seventy-nine-years old, went shopping at the Foodtown Supermarket on Broad
Street in Red Bank, New Jersey. After completing her shopping at
approximately 2:30 p.m., she returned to her car, that was parked
in the Foodtown parking lot adjacent to the store. As she was
entering her car, Philip Reardon, Jr., who had been loitering in
the parking lot, forced her into her car and drove off. Reardon
covered Ms. Dalton's nose and mouth with duct tape, thereby
causing her to die of asphyxiation. Reardon was apprehended, and
later convicted of kidnapping, robbery, theft, and murder.
The Broad Street Foodtown in Red Bank consists of 44,279
square feet and is located on 3.32 acres. Foodtown also owned
and operated the parking lot that contained 200 parking spaces.
After discovery had been completed, Foodtown moved for
summary judgment, contending that it had breached no legal duty
owed to Ms. Dalton. It argued that because of the absence of a
prior carjacking, murder, or similar criminal incident in the
parking lot within a reasonable time before the abduction of Ms.
Dalton, plaintiff could not establish foreseeability. The trial
court granted Foodtown's motion, concluding that plaintiff's
failure to allege prior similar criminal incidents in the parking
lot precluded the imposition of a legal duty upon Foodtown.
Plaintiff voluntarily dismissed the complaint against Reardon in
order to appeal the dismissal of the complaint against Foodtown.
R. 2:2-3(a)(1).
The Appellate Division affirmed, finding that defendant owed
no duty to decedent to provide security or to post warnings in
the parking lot because the abduction and murder of Ms. Dalton
were not foreseeable absent prior similar incidents. 293 N.J.
Super. at 221-23. The Appellate Division stated that "[u]nlike
the situation in Butler [v. Acme Markets, Inc.,
89 N.J. 270
(1982)], there were no prior incidents of a nature that would
render foreseeable the carjacking, assault, kidnapping and fatal
gagging of a patron." Id. at 222. Under the Appellate
Division's decision, in order for a criminal act to be
foreseeable, the business owner must in most cases be aware of
prior similar criminal incidents on the business premises. Id.
at 224-25. The majority acknowledged, however, that in some
circumstances, prior similar incidents on a defendant's property
would not be required before imposition of a duty. Id. at 224.
The majority cited situations where there have been "repeated
carjackings or assaults upon persons in the immediate vicinity,
or an extraordinary increase of such incidents in the community,"
as examples of situations that might be sufficient to create a
duty. Ibid.
The dissenting member of the panel rejected the majority's
adoption of a refinement of the prior similar incidents approach
to determining foreseeability. Id. at 228-43. Instead, he
endorsed the use of the "totality of the circumstances" to
determine a store owner's duty. Id. at 239. Applying the
totality of the circumstances approach, the dissenting member of
the panel found that defendant did owe a duty to Ms. Dalton. Id.
at 239-43.
The issue whether a defendant owes a legal duty is generally
a question of law for the court to decide. Carvalho v. Toll
Bros. & Developers,
143 N.J. 565, 572 (1996). Similarly, the
scope of a duty owed is a matter of law. Kelly v. Gwinnell,
96 N.J. 538, 552 (1984). The determination of the existence of a
"duty to exercise reasonable care to avoid the risk of harm to
another . . . is one of fairness and policy that implicates many
factors." Carvalho, supra, 143 N.J. at 572; see also Kuzmicz v.
Ivy Hill Park Apartments, Inc.,
147 N.J. 510, 515 (1997); Snyder
v. American Ass'n of Blood Banks,
144 N.J. 269, 292 (1996);
Dunphy v. Gregor,
136 N.J. 99, 110 (1994). In many instances, a
landowner's liability for injuries is no longer based exclusively
on the status of the injured party. Kuzmicz, supra, 147 N.J. at
515; Brett v. Great Am. Recreation, Inc.,
144 N.J. 479, 509
(1996). However, in a case such as the present one in which the
legal relationship is clearly defined, the common law
classifications can be useful in determining the existence and
scope of the duty of care owed.
Foreseeability of harm alone is not dispositive of whether a
duty exists. Goldberg v. Housing Auth. of Newark,
38 N.J. 578,
583 (1962). "[I]t is a crucial element in determining whether
imposition of a duty on an alleged tortfeasor is appropriate."
Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc.,
135 N.J. 182,
194 (1994). "[T]he concept of foreseeability [subsumes] many of
the concerns we acknowledge as relevant to the imposition of a
duty: the relationship between the plaintiff and the tortfeasor,
the nature of the risk, and the ability and opportunity to
exercise care." Ibid.
Foreseeability as a determinant of a business owner's duty
of care to its customers is to be distinguished from
foreseeability as a determinant of whether a breach of duty is a
proximate cause of an ultimate injury. Foreseeability as it
impacts duty determinations refers to
"the knowledge of the risk of injury to be
apprehended. The 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."
[Hill v. Yaskin,
75 N.J. 139, 144 (1977)
(quoting
57 Am. Jur. 2d Negligence § 58 (1970)).]
Foreseeability that affects proximate cause, on the other hand,
relates to "the question of whether the specific act or omission
of the defendant was such that the ultimate injury to the
plaintiff" reasonably flowed from defendant's breach of duty.
Id. at 143. Foreseeability in the proximate cause context
relates to remoteness rather than the existence of a duty.
Foreseeability in the present case is limited to the existence
and scope of duty owed to Ms. Dalton.
Plaintiff contends that a sufficient evidential basis was
presented to the trial court to establish foreseeability of harm
to customers of Foodtown who used the parking lot.
The discovery in this case revealed that Foodtown was
located next to a liquor store and a gasoline station. Foodtown
provided no security for its parking lot. The area of the
parking lot from which Ms. Dalton was kidnapped was located
beside a section of the store that had no windows or glass doors.
The store wall adjacent to where Ms. Dalton parked was a solid
concrete structure. It did not contain a surveillance camera or
any warning to customers. Foodtown's security was limited to the
deterrence, detection, and apprehension of shoplifters inside the
store.
The Red Bank Police Department officially recorded
approximately sixty criminal incidents either on or near the
Foodtown premises over the two-and-one-half-year period that
preceded Ms. Dalton's kidnapping and murder on July 15, 1991.
The offenses consisted of thirty shopliftings, twelve thefts
either inside the store or in the parking lot, four driving while
intoxicated, four disorderly persons, four assaults, one criminal
mischief, one trespassing, and one possession of a controlled
dangerous substance. As significant as the number of offenses is
the escalating nature of the occurrences on Foodtown's property.
There were four in 1989, seven in 1990, and thirteen in 1991.
That represents a significant increase between 1989 and 1991.
Plaintiff also presented a report prepared by William A.
Torphy, a commercial facility design, management, and security
expert. He conducted a security evaluation of the Red Bank
Foodtown and concluded that its failure to provide any security
for its parking lot deviated from the industry's standard of care
and proximately caused Ms. Dalton's death. He found three
reasons for the deviation. First, the poor architectural design
that permitted parking in an area of the building that had no
windows made it impossible for employees and customers inside the
store to scan the parking lot for problems. Second, a Mobil
gasoline station and a liquor store adjacent to the parking lot
served as gathering places for loiterers and attracted persons to
drink and "hang around." Third, Foodtown was located in an area
where criminal conduct could reasonably be anticipated.
This Court has previously held that business owners and landlords have a duty to protect patrons and tenants from foreseeable criminal acts of third parties occurring on their premises. Butler, supra, 89 N.J. at 280 (finding that business owners have a duty to protect invitees from foreseeable criminal acts of third parties); Trentacost v. Brussel, 82 N.J. 214, 231 (1980) (stating "a landlord has a legal duty to take reasonable
security measures for tenant protection on the premises");
Braitman v. Overlook Terrace Corp.,
68 N.J. 368, 383 (1975)
(stating "[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"). "Uniting Braitman, Trentacost, and Butler is the
premise that landlords and business owners should be liable for
foreseeable injuries that occur on their premises" as the result
of criminal conduct of third persons. Kuzmicz, supra, 147 N.J.
at 517. Given our existing jurisprudence respecting business
owners' and landlords' liability for injuries caused by criminal
conduct of third parties, the fairness and policy elements of
duty considerations have been found to exist. Consequently, the
focus on the duty question in the present case is primarily on
foreseeability.
Plaintiff argues that both of the lower courts erred when they interpreted Butler to require proof of prior similar criminal incidents before foreseeability can be established. Plaintiff maintains that the evidence required the courts to recognize that a duty existed and that the case should have been presented to a jury to decide (1) whether a duty had been breached, and (2) whether the breached duty proximately caused
Ms. Dalton's death. As an alternative, plaintiff argues that if
the Court concludes that Butler requires prior similar criminal
incidents to establish foreseeability, then the Court should
adopt the more liberal "totality of the circumstances" approach
to foreseeability.
Butler involved a shopper at a supermarket who was mugged
during the evening in the parking lot of an Acme store located in
Montclair. Butler, supra, 89 N.J. at 274. The trial court
vacated a jury verdict in favor of the shopper, holding that Acme
owed no duty to the shopper. Ibid. The Appellate Division
reversed, finding that Acme owed a duty to its customers to
protect them from foreseeable criminal acts. Id. at 275. In
affirming, this Court observed that
[t]he proprietor of premises to which the
public is invited for business purposes of the
proprietor owes a duty of reasonable care to
those who enter the premises upon that
invitation to provide a reasonably safe place
to do that which is within the scope of the
invitation. The measure of that care has been
described as due care under all the
circumstances. Negligence is tested by
whether the reasonably prudent person at the
time and place should recognize and foresee an
unreasonable risk or likelihood of harm or
danger to others. If the reasonably prudent
person would foresee danger resulting from
another's voluntary criminal acts, the fact
that another's actions are beyond defendant's
control does not preclude liability.
Foreseeability of the risk that criminal acts
of others would cause harm is the crucial
factor.
[Butler, supra, 89 N.J. at 275-76 (emphasis
added) (citations omitted) (internal quotation
marks omitted).]
The Butler Court had no occasion to discuss whether prior
similar criminal incidents were essential to foreseeability.
There, foreseeability was apparent because "[s]even muggings had
occurred on the Acme premises in a year's time, five of which
occurred in the evenings during the four months preceding the
attack on Mrs. Butler." Id. at 274. Indeed, Acme recognized
there was a problem and hired an off-duty police officer to
supply security during certain evenings. Ibid. The security
person's duties included patrolling both inside and outside the
store. Ibid. The focus in Butler was, instead, on whether
liability for foreseeable criminal conduct of third parties
committed on a shopkeeper's premises should be visited upon the
shopkeeper. It was argued that the responsibility for security
resides in the "governmental sector with its attendant police
power." Id. at 277. As such, foreseeability in Butler related
to proximate cause in the breach of duty context rather than the
existence of a duty. Furthermore, Butler was not tried on the
theory that there was no security in the parking lot. It was
tried under the twin theories of inadequate security and a
failure to warn customers of the dangerous condition existing in
the parking lot.
Although the Butler Court did not discuss whether prior
similar criminal incidents were required, it nonetheless limited
the scope of its holding. To guard against making a shopkeeper
liable for all crimes occurring on the shopkeeper's premises, the
Court adopted the Restatement (Second) of Torts Section 344,
Comment (f), as the standard for determining which criminal
incidents may give rise to liability. Butler, supra, 89 N.J. at
280. Section 344 provides:
A possessor of land who holds it open to the
public for entry for his business purposes is
subject to liability to members of the public
while they are upon the land for such a
purpose, for physical harm caused by the
accidental, negligent, or intentionally
harmful acts of third persons or animals, and
by the failure of the possessor to exercise
reasonable care to
(a) discover that such acts are being
done or are likely to be done, or
(b) give a warning adequate to enable the
visitors to avoid the harm, or otherwise to
protect them against it.
[Restatement (Second) of Torts § 344 (1965).]
Comment (f) 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.
[Id. cmt. (f).]
By adopting Section 344 and Comment (f) of the Restatement
in Butler, and in view of our landlord-tenant decisions
respecting foreseeability of criminal incidents, we have already
applied the totality of the circumstances standard. Section 344
of the Restatement makes a shopkeeper liable for failing to
discover criminal acts that are "being done or [that] are likely
to be done." Id. § 344 (emphasis added). We believe the total
circumstances should be consulted to decide when criminal conduct
is "likely to be done." Ibid.; see Morris v. Krauszer's Food
Stores, No. A-5299-94T2, 1
997 WL 232309, at *2 (App. Div. May 9,
1997) (holding that the totality of the circumstances should be
considered when deciding whether criminal assaults are
foreseeable). In Butler, the Court stated "[t]he measure
of . . . care [a business owner must undertake] is `due care
under all the circumstances.'" Butler, supra, 89 N.J. at 275-76
(quoting Bozza v. Vornado, Inc.,
42 N.J. 355, 359 (1964)). The
phrase "under all the circumstances" is synonymous with the
totality of the circumstances and the two phrases are used
interchangeably. The flexible, practical totality of the
circumstances standard has also been adopted for Fourth Amendment
probable cause determinations. State v. Novembrino,
105 N.J. 95,
119 (1987).
The totality of the circumstances standard encompasses all
the factors a reasonably prudent person would consider. In
Trentacost, that included evidence of the "high incidence of
crime in the neighborhood . . . [and] an attempted theft within
the building." Trentacost, supra, 82 N.J. at 223; see id. at
218-19. In Braitman, evidence of break-ins at other apartments
in the general area where Braitman resided was considered on the
issue of foreseeability when determining whether a duty existed.
Braitman, supra, 68 N.J. at 373.
The principle to be extracted from the landlord-tenant cases
that preceded Butler is that the determination of whether a duty
exists does not depend on the existence of prior similar criminal
incidents, even though foreseeability was the driving
consideration. The totality of the circumstances controlled, and
that included criminal activities in close proximity to the
landowner's premises.
We recognize that over the years, distinctions have
developed in the law between actual and constructive notice.
Evidence of prior similar criminal incidents on the premises
would place a shopkeeper on notice that its customers may be in
danger of being criminally assaulted. Constructive notice to a
landowner or shopkeeper can be implied from the totality of the
surrounding circumstances. In the present case that distinction
is not significant because
[t]he requirement of actual or constructive
knowledge is merely a means of applying the
general rule . . . that the proprietor may be
liable if he knew or by the exercise of
reasonable care could have discovered the
dangerous condition, and it does not alter
the basic duty to use ordinary care under all
the circumstances.
[Bridgman v. Safeway Stores, Inc.,
348 P.2d 696, 698 (Cal. 1960).]
See also Bozza, supra, 42 N.J. at 360 (stating that when a
plaintiff can demonstrate the reasonable probability that "the
dangerous condition would occur, he need not also prove actual or
constructive notice of the specific condition"). The criminality
of the abduction and murder of Ms. Dalton "is but one
circumstance in the foreseeability of harm." Genovay v. Fox, 50
N.J. Super. 538, 551 (App. Div. 1958), rev'd on other grounds,
29 N.J. 436 (1959).
Other jurisdictions have also rejected the prior similar
criminal incidents approach and have adopted the totality of the
circumstances standard. Morgan v. Bucks Assocs.,
428 F. Supp. 546, 548-50 (E.D. Pa. 1977); Czerwinski v. Sunrise Point
Condominium,
540 So.2d 199, 200-01 (Fla. Dist. Ct. App. 1989);
Paterson v. Deeb,
472 So.2d 1210, 1218-20 (Fla. Dist. Ct. App.
1985); Willie v. American Cas. Co.,
547 So.2d 1075, 1083 (La.
Ct. App. 1989); Erickson v. Curtis Inv. Co.,
432 N.W.2d 199, 201-02 (Minn. Ct. App. 1988), aff'd,
447 N.W.2d 165 (Minn. 1989);
Doud v. Las Vegas Hilton Corp.,
864 P.2d 796, 799-801 (Nev.
1993); Foster v. Winston-Salem Joint Venture,
281 S.E.2d 36, 38-40 (N.C. 1981); Small v. McKennan Hosp.,
403 N.W.2d 410, 412-13
(S.D. 1987). Those courts generally do not distinguish between
crimes against property and crimes against persons, reasoning
that property crimes can easily escalate to violent crimes.
Those jurisdictions that apply the totality of the circumstances
rule consider all prior criminal incidents occurring on the
landowner's premises and adjacent properties, whether similar or
not, as well as other types of evidence such as the nature,
location, condition, and the architectural design of the
landowner's property.
More than a decade ago, the California Supreme Court
considered and rejected the prior similar incidents rule for
establishing foreseeability. Isaacs v. Huntington Mem'l Hosp.,
695 P.2d 653 (Cal. 1985). Chief Justice Bird writing for that
Court found the rule was fatally flawed for four reasons:
First, the rule leads to results which are
contrary to public policy. The rule has the
effect of discouraging landowners from taking
adequate measures to protect premises which
they know are dangerous. This result
contravenes the policy of preventing future
harm. Moreover, under the rule, the first
victim always loses, while subsequent victims
are permitted recovery. Such a result is not
only unfair, but is inimical to the important
policy of compensating injured parties. . . .
Second, a rule which limits evidence of
foreseeability to prior similar criminal acts
leads to arbitrary results and distinctions.
Under this rule, there is uncertainty as to
how "similar" the prior incidents must be to
satisfy the rule. The rule raises a number of
other troubling questions. For example, how
close in time do the prior incidents have to
be? How near in location must they be? The
rule invites different courts to enunciate
different standards of foreseeability based on
their resolution of these questions.
Third, the rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts. This
court has already rejected that notion. The
mere fact that a particular kind of an
accident has not happened before does not . .
. show that such accident is one which might
not reasonably have been anticipated. Thus,
the fortuitous absence of prior injury does
not justify relieving defendant from
responsibility for the foreseeable
consequences of its acts.
Finally, the "prior similar incidents"
rule improperly removes too many cases from
the jury's consideration. It is well
established that foreseeability is ordinarily
a question of fact.
[Id. at 658-59 (citations omitted) (internal
quotation marks omitted) (alteration in
original).]
Eight years later, the California Supreme Court revisited
Isaacs when it was required to decide whether a shopping center
owner was required to hire security guards for common areas in
order to satisfy its duty of making those common areas reasonably
safe. Ann M. v. Pacific Plaza Shopping Ctr.,
863 P.2d 207 (Cal.
1993).
Ann M., an employee of a photo processing service located in
a secluded area of the defendant shopping center, was raped
shortly after opening the store. Id. at 209-10. The employee
sued the shopping center, claiming it was negligent because it
failed to protect her from an unreasonable risk of harm. Id. at
210-11. The employee offered evidence of prior criminal activity
which included evidence of a purse snatching, an assault, and
robberies on the shopping center premises. Id. at 210.
Additionally, plaintiff presented evidence that as a result of
concerns expressed by employees and tenants of the shopping
center regarding the presence of transients who loitered around
the common areas, a security company was hired to patrol the area
by car three to four times per day. Ibid. Ann M. was raped
after the motor patrol had been instituted. Ibid.
Although the critical issue presented was the scope of duty
owed based on the failure to have a security guard on duty for
the common areas at the time of the rape rather than the question
of the existence of a duty, the Court nonetheless revisited the
role prior criminal incidents should play in the formulation of a
duty. Id. at 214-16. The Court agreed that "[f]oreseeability,
when analyzed to determine the existence or scope of a duty, is a
question of law to be decided by the court." Id. at 215. The
Court then observed:
Unfortunately, random, violent crime is
endemic in today's society. It is difficult,
if not impossible, to envision any locale open
to the public where the occurrence of violent
crime seems improbable. Upon further
reflection and in light of the increase in
violent crime, refinement of the rule
enunciated in Isaacs, supra,
38 Cal.3d 112,
211 Cal.Rptr. 356,
695 P.2d 653, is required.
Turning to the question of the scope of a
landlord's duty to provide protection from
foreseeable third party crime, we observe
that, before and after our decision in Isaacs,
we have recognized that the scope of the duty
is determined in part by balancing the
foreseeability of the harm against the burden
of the duty to be imposed. . . .
While there may be circumstances where the hiring of security guards will be required to satisfy a landowner's duty of care, such action will rarely, if ever, be found to be a "minimal burden." The monetary costs of
security guards is not insignificant.
Moreover, the obligation to provide patrols
adequate to deter criminal conduct is not well
defined. No one really knows why people
commit crime, hence no one really knows what
is adequate deterrence in any given situation.
Finally, the social costs of imposing a duty
on landowners to hire private police forces
are also not insignificant. For these
reasons, we conclude that a high degree of
foreseeability is required in order to find
that the scope of a landlord's duty of care
includes the hiring of security guards. We
further conclude that the requisite degree of
foreseeability rarely, if ever, can be proven
in the absence of prior similar incidents of
violent crime on the landowner's premises. To
hold otherwise would be to impose an unfair
burden upon landlords and, in effect, would
force landlords to become the insurers of
public safety, contrary to well established
policy in this state.
[Id. at 215-16 (internal citations omitted)
(internal quotation marks omitted) (footnote
omitted).]
Based on the facts, the Court concluded that "violent criminal
assaults were not sufficiently foreseeable to impose a duty upon
Pacific Plaza to provide security guards in the common areas."
Id. at 216.
One commentator has accurately concluded that California has
retreated from its Isaacs totality of the circumstances rule "to
a rule under which prior similar incidents almost always will be
necessary to impose upon landowners a duty to provide security."
Donna Lee Welch, Case Comment, Ann M. v. Pacific Plaza Shopping
Center: The California Supreme Court Retreats From its `Totality
of the Circumstances' Approach to Premises Liability,
28 Ga. L.
Rev. 1053, 1064 (1994).
The Tennessee Supreme Court recently rejected the prior
similar offense rule and adopted a version of the totality of the
circumstances rule that it called "a balancing approach."
McClung v. Delta Square Ltd. Partnership,
937 S.W.2d 891, 901
(Tenn. 1996). "The balancing approach acknowledges that duty is
a flexible concept, and seeks to balance the degree of
foreseeability of harm against the burden of the duty to be
imposed." Ibid.
Under Ann M. and McClung, the requisite level of
foreseeability is determined by the duty alleged to have been
breached. For instance, if an injured invitee were to claim that
a possessor of the land had a duty to warn of the risk of
criminal attacks, or other dangers on the premises, rather than
claiming that the possessor of the land had a duty to provide
security, the level of foreseeability required would be less and
arguably could be established by circumstances other than prior
similar incidents. On the other hand, if the plaintiff were to
claim that the landowner had a duty to provide security, under
Ann M. and McClung the plaintiff would be required to show prior
similar criminal incidents on the premises or other compelling
evidence establishing the high degree of foreseeability necessary
to impose a duty on the possessor of the land. A lack of prior
similar criminal incidents will almost always be fatal to a
plaintiff claiming that the landowner had a duty to provide
security.
Recently, the West Virginia Supreme Court also has recently
addressed the issue of a landowner's liability for criminal
assaults occurring in parking lots of shopping malls. In Doe v.
Wal-Mart Stores, Inc.,
479 S.E.2d 610 (W. Va. 1996), a third
person forced a shopper into her car as she approached it in a
mall parking lot. Id. at 613. The culprit forced the shopper to
drive to a secluded area, where he raped and abandoned her.
Ibid. The Court held that because the victim was a business
invitee of Wal-Mart, it "had a duty to protect [her] from the
foreseeable criminal activity of third parties on the premises,"
including the parking lot. Id. at 617. It recognized, however,
that general knowledge of prior unrelated incidents of criminal
activity in close proximity to a landowner's premises "is not
alone sufficient to impose a duty on the landlord." Id. at 616.
It acknowleged, however, that "a possessor of land who holds the
land open to members of the public to enter in response to his
invitation, by virtue of his status alone, . . . [has] a duty to
protect persons on the premises from the [foreseeable] criminal
activity of third parties." Id. at 616.
Still other jurisdictions have adopted the imminent harm
approach to foreseeability. Under that approach, a business
owner's duty to protect business invitees from criminal acts of
third parties is limited to those situations in which the owner
knows that a criminal attack is imminent. Bailey v. Bruno's,
Inc.,
561 So.2d 509, 510-11 (Ala. 1990); Shipes v. Piggly Wiggly
St. Andrews, Inc.,
238 S.E.2d 167, 168-69 (S.C. 1977); Castillo
v. Sears, Roebuck & Co.,
663 S.W.2d 60, 66 (Tex. App. 1983);
Wright v. Webb,
362 S.E.2d 919, 922 (Va. 1987). Foreseeability
under the imminent harm approach is very difficult to establish
because a plaintiff must prove that the business owner knew or
had reason to know that the criminal attack was occurring or
about to occur.
The theme to be extracted from the recent out-of-state cases
that have rejected the prior similar incident rule to any degree
rests on the specificity and strictness that
are infused into the definitional standard of
foreseeability. The foreseeability standard
that may be synthesized from these cases is
one that posits liability in terms of where,
along a spectrum ranging from the general to
the particular, foreseeability is ultimately
found. A broad view of these cases reasonably
permits the conclusion that the extent of
liability and degree of foreseeability stand
in direct proportion to one another. The more
particular is the foreseeability . . . the
more just is it that liability be imposed and
recovery allowed.
[People Express Airlines, Inc. v. Consolidated
Rail Corp.
100 N.J. 246, 263 (1985) (citations
omitted).]
Our prior decision in Butler and those decisions in the related area of landlord liability to tenants, and elsewhere in our tort law jurisprudence, persuade us to reject the prior similar incident rule in favor of the totality of the circumstances approach. Furthermore, courts in this State have consistently applied the totality of the circumstances rule when
determining the existence and scope of duty. Brett, supra, 144
N.J. at 509; Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 438
(1993); Di Cosala v. Kay,
91 N.J. 159, 176 (1982); Johnson v.
Usdin Louis Co., 248 N.J. Super. 525, 529 (App. Div.), certif.
denied,
126 N.J. 386 (1991). Under that approach, we conclude
that it was foreseeable that over the course of time an
individual would enter the parking lot and assault a Foodtown
customer. Theft offenses frequently escalate into more violent
crimes. The crime rate in the area increased substantially in
the two years preceding the abduction and murder. In addition,
the United States Justice Department has reported that in 1994,
approximately 757,000 violent crimes such as rape, robbery, and
assaults occurred in parking lots located throughout this
country. In the same year, a study conducted by Liability
Consultants, Inc. of Framingham, Massachusetts revealed that
parking lots were the most likely place for an attack that could
result in a premises liability lawsuit. Scott E. Kangas, The
Fundamentals of Parking Lot Protection, Security Mgmt., July
1996, at 44, 44.
Ms. Dalton was abducted from a section of the parking lot
that was opposite a concrete wall that was not visible from
within the store. Foodtown provided no passive or active
security for the parking lot. Passive security refers to
physical design features, architectural design, and lighting.
Donald R. Monahan, Maximizing Safety in Parking Structures,
Facilities Design & Mgmt., Apr. 1997, at 24, 24. Active security
refers to human activity that may involve specialized equipment
such as security patrols or guards, intercoms, and closed circuit
television systems. Ibid.
Although we do not heavily rely on the common law
classification of Ms. Dalton as an invitee, we cannot disregard
that fact. The Restatement (Second) of Torts Section 314A states
that a possessor of land who holds it open to the public is under
a duty to members of the public who enter in response to the
possessor's invitation to take reasonable action to protect them
against unreasonable risk of physical harm. Restatement (Second)
of Torts § 314A (1965). Thus, that section of the Restatement
creates a duty based on status alone. In light of that
relationship and the totality of the circumstances, the
imposition of a duty on the possessor of land to exercise
reasonable care to prevent foreseeable harm to its customers
comports with notions of fairness and sound public policy.
Butler rejected all public policy and economic reasons for
not imposing liability on supermarket owners for injuries caused
by foreseeable criminal conduct. Prior to Butler, the reasons
for rejecting the imposition of such a duty had been expressed in
Goldberg, supra,
38 N.J. 578. The first point made by the
Goldberg Court was that police work is highly specialized and
there is no room for private police forces. Id. at 589. The
Butler Court found that because Acme had employed trained police
officers, the Goldberg Court's concern was not relevant. Butler,
supra, 89 N.J. at 278. Additionally, the Butler Court noted that
private security services have become more common and are
regulated by state statute. Id. at 278-79. The second Goldberg
concern was the imposition of the cost of security on the
tenants. Id. at 278. The Butler Court found that allocating the
cost of security to business owners, and indirectly to patrons,
was consistent with the common law. Id. at 279. The final
Goldberg concern was the inherent vagueness of the proposed duty.
Id. at 278. The Butler Court acknowledged that the validity of
that concern but agreed with Justice Jacobs's statement in the
dissent of Goldberg that, "`that duty was no more vague than is
the test of reasonableness throughout our law generally.'" Id.
at 279 (quoting Goldberg, supra, 38 N.J. at 605-06 (Jacobs, J.,
dissenting)).
Having extended an invitation to use the parking lot to shop
at Foodtown, defendant was obligated not to engage in any
affirmative actions or omissions that would unreasonably create
or increase the risk of injury to shoppers from the criminal
activity of a third party. The duty owed requires the possessor
of the land to exercise ordinary care to protect invitees from
potential injury inflicted by individuals that the landowner
could have reasonably foreseen might be present on the premises.
The mere fact that a particular kind of incident had not happened
before is not a sound reason to conclude that such an incident
might not reasonably have been anticipated. Generally, our tort
law, including products liability, does not require the first
victim to lose while subsequent victims are permitted to at least
submit their cases to a jury. For instance, a tavern owner who
sells alcohol to minors or visibly intoxicated patrons is not
entitled to a liability-free first accident, Rappaport v.
Nichols,
31 N.J. 188 (1959), or a free criminal assault committed
by an intoxicated patron, Steele v. Kerrigan,
148 N.J. 1, 26-27
(1997).
Under the totality of the circumstances approach, the actual
knowledge of criminal acts on the property and constructive
notice based on the total circumstances are relevant to
foreseeability. As in this case, foreseeability can stem from
prior criminal acts that are lesser in degree than the one
committed against a plaintiff. It can also arise from prior
criminal acts that did not occur on the defendant's property, but
instead occurred in close proximity to the defendant's premises.
In determining that a criminal assault was foreseeable in the
parking lot, we have considered all the criminal acts that have
occurred on Foodtown's property and those that occurred in close
proximity to its property; the property's size and location; the
absence of any security; the architectural design of the building
in relation to the area of the parking lot where the crime
occurred; the size of the parking lot; the type of business
defendant operates; the nature and circumstances of nearby
businesses; and the increasing level of crime in the general
neighborhood.
The scope of the duty owed includes security for the parking
lot. Our courts have recognized for many years that the scope of
a landowner's duty to protect its invitees from criminal acts of
third parties may include providing security guards. In 1962,
Justice Jacobs observed:
[C]ourts have nonetheless repeatedly held that
where there are special conditions from which
the owner or operator of the premises should
recognize and foresee an unreasonable risk or
likelihood of harm or danger to invitees from
criminal or wrongful acts of others, he must
take reasonable precautions which may, under
the circumstances, fairly and justly entail
the employment of special guards or police.
See Exton v. Central R. R. Co.,
62 N.J.L. 7,
11 (Sup. Ct. 1898), aff'd
63 N.J.L. 356 (E. &
A. 1899); Skillen v. West Jersey & Seashore R.
R. Co.,
96 N.J.L. 492, 494 (E. & A. 1921);
Sandler v. Hudson & Manhattan R.R. Co.,
8 N.J.
Misc. 537, 539,
151 A. 99 (Sup. Ct. 1930),
aff'd
108 N.J.L. 203 (E. & A. 1931); Williams
v. Essex Amusement Corp.,
133 N.J.L. 218, 219
(Sup. Ct. 1945); Reilly v. 180 Club, Inc.,
14 N.J. Super. 420, 424 (App. Div. 1951); Crammer
v. Willston Operating Co., Inc.,
19 N.J.
Super. 489, 490 (App. Div. 1952); Becker v.
Newark,
72 N.J. Super. 355, 358 (App. Div.
1962); cf. Neering v. Illinois Central R.R.
Co.,
383 Ill. 366,
50 N.E.2d 497 (1943);
Quigley v. Wilson Line of Massachusetts,
338 Mass. 125,
154 N.E.2d 77,
77 A.L.R.2d 499
(1958); Lillie v. Thompson
332 U.S. 459,
68 S. Ct. 140,
92 L. Ed. 73 (1947); McLeod v.
Grant County School Dist. No. 128,
42 Wash.2d 316,
255 P.2d 360 (1953); Kendall v. Gore
Properties,
98 U.S. App. D.C. 378,
236 F.2d 673 (1956); Restatement, Torts § 348 (1934).
See also Da Rocha v. New York City Housing
Authority,
109 N.Y.S.2d 263 (Sup. Ct. 1951),
aff'd
282 App.Div. 728,
122 N.Y.S.2d 397
(1953); Geigel v. New York City Housing
Authority,
225 N.Y.S.2d 891 (Sup. Ct. 1962);
Hansen v. New York City Housing Authority,
271 App. Div. 986,
68 N.Y.S.2d 71 (1947); cf.
Amoruso v. New York City Transit Authority,
12 App. Div. 2d 11,
207 N.Y.S.2d 855 (1960);
Abbott v. New York Public Library,
263 App.Div. 314,
32 N.Y.S.2d 963 (1942); Siegel
v. 1536-46 St. John's Place Corporation,
184 Misc. 1053,
57 N.Y.S.2d 473 (1945).
[Goldberg, supra, 38 N.J. at 597-98 (Jacobs,
J., dissenting).]
Cf. McGlynn v. Parking Auth. of Newark,
86 N.J. 551, 560-61 (1981)
(holding that garage operator has a duty to protect parked cars and
items found in them from criminal activity); see also Louise Lee,
Courts Begin to Award Damages to Victims of Parking-Area Crime,
Wall St. J., Apr. 23, 1997, at A1 (giving examples of crime
dropping dramatically when security guards are utilized).
Indeed, the widespread and diverse criminal activities that
occur on commercial properties such as parking lots and housing
developments have influenced some municipalities to require
owners to provide security guards or some other security system.
Borough of Totowa, N.J., Code §§ 61-4 to -5 (1996) (requiring
shopping centers to maintain a guard and a roaming security
vehicle); Borough of South River, N.J., Code § 155-2 (Supp. 1996)
(requiring commercial establishments open for business after
11:00 p.m. to employ a security guard or install a burglar
alarm); Township of North Brunswick, N.J., Code § 138-2 (1996)
(same); see also 515 Assocs. v. City of Newark,
132 N.J. 180,
183-84 (1993) (upholding City of Newark, N.J., Code § 15:13-1
(Supp. 1996) that requires security guards in housing buildings
containing over 100 units). The authority for such ordinances is
found in the general police power vested in municipalities
pursuant to N.J.S.A. 40:48-2, and those additional powers
conferred on certain municipalities pursuant to the Optional
Municipal Charters Law, N.J.S.A. 40:69A-1 to -210. See Hudson
Circle Servicenter, Inc. v. Town of Kearny,
70 N.J. 289, 291-92,
305-11 (1976) (upholding ordinance requiring twenty-four-hour
security services at truck stop); Sunrise Village Assocs. v.
Borough of Roselle Park,
181 N.J. Super. 565, 570, 576 (App. Div.
1981) (upholding ordinance requiring security guard at private
housing complex), certif. denied,
89 N.J. 413 (1982); Bonito v.
Mayor of Bloomfield, 197 N.J. Super. 390, 401-03 (Law Div. 1984)
(upholding validity of ordinance requiring security guards at
arcades). Ordinances requiring security guards have been found
to be constitutional. 515 Assocs., supra, 132 N.J. at 185-88.
Significantly, the totality of the circumstances was considered
in determining the reasonableness, and hence the validity, of
such ordinances. Hudson, supra, 70 N.J. at 295-97.
Recognizing that the scope of the duty owed in the present
case includes some security, and that a jury could find that an
active security system such as a security guard or a surveillance
camera was required to satisfy the duty owed, a finding by a jury
that a guard was required would not amount to an improper
delegation of the governmental obligation to provide police
protection. Whenever a guard is required, a limited role is
envisioned for him or her. He or she would not undertake the
duties of a police officer, such as investigating crimes,
apprehending suspects, and prosecuting criminal offenders. The
guard would be available to report suspicious criminal activities
to the police and thus help to avert criminal conduct. Based on
"the amount of crime occurring in the area," it can be reasonable
to require a private landowner "to provide assistance [to the
police] in the performance of" their functions. Id. at 310 n.14.
Not only would a guard not relieve a municipality of its
obligation to provide police protection, but guards also lack the
authority to perform police services. Guards serve as a
deterrent to crime and assist the police as would any other
citizen. Consequently, the requirement of a guard, whether
imposed by ordinance or by tort law, does not represent an
improper delegation of the governmental obligation to provide
police protection. A municipal police force alone cannot
possibly provide protection to all citizens in a timely manner
given that violent crime is endemic in today's society.
To summarize, our consideration of the evidence in light of
the totality of the circumstances persuades us to conclude that
defendant owed Ms. Dalton a legal duty of care to provide some
measure of security in the parking lot. In the context of
determining whether a legal duty existed, it was reasonably
foreseeable that she could suffer some injury in the unsecured
parking lot. By our holding, we wish to make clear that we have
not required Foodtown to provide security guards. We simply hold
that the duty to provide security may include a security guard as
well as any other security system or warnings deemed reasonable
under all of the circumstances.
Although not presented in this appeal, we are aware of the
potential impact this decision will have on the question of duty
owed to customers by small businesses located outside of large
malls. The same factors that informed our decision today may
well point to a different result when small businesses are
involved. That risk determination, however, must be made on a
case-by-case basis. But at least one commentator has concluded
that under a cost-benefit analysis,
a parking lot is a vital artery, regulating
the flow of a store's customers, the
lifeblood of any business. At retail
outlets, a convenient parking space may be
worth thousands of dollars in customer
purchases. Easy access can, however, be a
double-edged sword. By providing an open
space, parking lots invite not only the
desired visitor, but also the predatory one.
Balancing these competing considerations is
critical. In the long run, the lack of safe
and convenient parking may spell the downfall
of even an exceptional company.
[Ronald L. Mendell, Declaring War on Parking
Lot Crime, Security Mgmt., Dec. 1995, at 46,
46.]
So understood, our decision today does not represent a major
change in the law. At most, it simply "nudge[s] the law
[articulated in Butler] forward an inch or so." Hopkins, supra,
132 N.J. at 451 (Clifford, J., concurring).
The judgment of the Appellate Division affirming the
dismissal of the complaint is reversed and the matter is remanded
to the Law Division for further proceedings consistent with this
opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK,
GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion. JUSTICE
O'HERN did not participate.
NO. A-126 SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
MARY CLOHESY, Executrix of the Estate of KATHLEEN DALTON,
deceased,
Plaintiff-Appellant,
v.
FOOD CIRCUS SUPERMARKETS, INC., t/a TWIN COUNTY GROCERS
or FOODTOWN OF RED BANK,
Defendant-Respondent,
and
PHILIP REARDON, JR.,
Defendant.
DECIDED June 26, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY