(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 11, l996 -- Decided February 20, 1997
POLLOCK, J., writing for a majority of the Court.
In this appeal, the Court addresses the issue of whether a landlord has a duty to protect its tenant by
mending a bordering fence or warning him of the risk of assault on property adjacent to, but not owned by,
the landlord.
Ireneusz Kuzmicz, a tenant of Ivy Hill Park Apartments, Inc. (Ivy Hill), sustained serious injuries
when he was assaulted on a vacant lot owned by Newark Board of Education (the Board). The lot was
located between the apartment complex and a grocery store owned by Great Atlantic & Pacific Tea
Company, Inc. (the A&P). Several years before the assault, Ivy Hill had erected a chain-link fence to
separate its property from the Board's lot. Over the course of the years, Ivy Hill had repaired the fence
three or four times. However, to gain access to the lot, which provided a shortcut to the A&P, the tenants
or someone else had cut an opening wide enough for two people to walk side-by-side through the fence.
Although the apartment complex abutted a lighted sidewalk leading to the A&P, Ivy Hill tenants frequently
elected to cut the walk short by walking through the darkened path.
Unbeknownst to Kuzmicz, the lot had been the site of several assaults in the years preceding the
assault on him. The administrator of the apartments, who was also the rental agent and manager for the
adjacent shopping plaza in which the A&P was located, was aware that Ivy Hill tenants and employees used
the path to go to the shopping plaza. On behalf of Ivy Hill, he had written to the mayor of Newark and the
superintendent of schools on two separate occasions, complaining of the Board's failure to maintain the lot,
of criminal activity on it, and of vandalism to Ivy Hill's fence. Several months after the administrator's
second letter, Kuzmicz was assaulted while walking along the path through the Board's lot after shopping at
the A&P.
Kuzmicz sued Ivy Hill, the Board and the City of Newark. Ivy Hill filed a third-party action for
contribution against the A&P. All defendants moved for summary judgment. Ivy Hill contended that it
owed no duty to Kuzmicz in respect of criminal activity on the Board's property as a matter of law. The
trial court denied Ivy Hill's motion, determining that issues of material fact were presented because a jury
reasonably could conclude that Ivy Hill's failure to maintain its fence constituted a breach of its duty to
tenants to provide a safe exit from its property, and that Ivy Hill's negligence was a proximate cause of
Kuzmicz's injuries. The court also denied the Board's motion for summary judgment, but granted the
City's motion. Lastly, the court granted A&P's motion, finding that there was no viable theory of liability
that would hold A&P responsible for criminal acts committed upon property not owned by it and over which
it exercised no control.
Following trial, a jury awarded Kuzmicz $175,000 and determined that Ivy Hill was fifty percent
negligent, the Board was thirty percent negligent, and Kuzmicz was twenty percent negligent. Ivy Hill moved
for judgment notwithstanding the verdict, or, in the alternative, a new trial. Its motion was denied and Ivy
Hill appealed. The Appellate Division affirmed.
The Supreme Court granted Ivy Hill's petition for certification.
HELD: Under the circumstances of this case, Ivy Hill did not owe a duty to its tenant by mending its fence
or warning of the possibility of criminal assault on property owned by the Board.
1. The determination of the existence of a duty of a landowner for both off-premises and on-premises
liability is a fact-sensitive one and one which considers both fairness and public policy. (pp. 6-9)
2. Landlords and business owners should be liable for foreseeable injuries that occur on their premises
because they are in the best position to control the risk of harm. (pp. 9-10)
3. Although a landowner is generally not liable for off-premises injuries merely because those injuries are
foreseeable, a landowner's liability may extend beyond the premises for activities that directly benefit the
landowner. (pp. 10-12)
4. A landowner does not owe a duty to protect people from criminal activity on adjacent premises that the
landowner does not own or control or from which the landowner does not realize a significant commercial
benefit. (pp. 12-14)
5. Although imposing a duty on a landlord to pay for injuries sustained in a criminal attack on another's
property helps to compensate the tenant, it also provides a disincentive to own rental property in urban
areas. (pp. 14-15)
6. Foreseeability does not predetermine the issue of duty. (pp. 15-16)
7. Although it would be unfair to hold Ivy Hill liable to Kuzmicz for the failure to warn him of the
possibility of an assault on the Board's property or for the failure to take greater measures to mend the
fence, the recognition of a landlord's duty to a tenant for off-premises injuries under different facts is not
foreclosed. (p. 17)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for the entry of a judgment in favor of Ivy Hill.
JUSTICE STEIN filed a separate dissenting opinion, in which JUSTICES HANDLER and O'HERN
join. Justice Stein viewed the Court's holding as a repudiation of a substantial body of decisional law that
predicates the imposition of a duty on the relationship of the parties, foreseeability of the risk to be avoided,
and the opportunity to exercise due care. Furthermore, he considered the Majority to have usurped the
jury's function by virtue of the substitution of its own factual findings.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI and COLEMAN join in JUSTICE
POLLOCK'S opinion. JUSTICE STEIN filed a separate dissenting opinion in which JUSTICES
HANDLER and O'HERN join.
SUPREME COURT OF NEW JERSEY
A-
5 September Term 1996
IRENEUSZ KUZMICZ, MARIE KUZMICZ,
TADEUSZ WRONOWSKI and HANNAH WRONOWSKI,
Plaintiffs-Respondents,
v.
IVY HILL PARK APARTMENTS, INC.
a/k/a IVY HILL PARK SECTION V,
Defendant and Third Party
Plaintiff-Appellant,
and
CITY OF NEWARK AND NEWARK BOARD OF
EDUCATION,
Defendants,
v.
GREAT ATLANTIC AND PACIFIC TEA
COMPANY, INC.,
Third Party Defendant-
Respondent,
and
JOHN DOE,
Third Party Defendant.
Argued March 11, 1996 -- Decided February 20, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
282 N.J. Super. 513 (1995).
John Burke argued the cause for appellant
(Berlin, Kaplan, Dembling & Burke,
attorneys).
Joel C. Rinsky argued the cause for
respondents Ireneusz Kuzmicz, Marie Kuzmicz,
Tadeusz Wronowski and Hannah Wronowski.
Raymond R. Connell argued the cause for
respondent Great Atlantic & Pacific Tea
Company, Inc. (Dwyer, Connell & Lisbona,
attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
Plaintiff Ireneusz Kuzmicz was a tenant of defendant Ivy
Hill Park Apartments, Inc. (Ivy Hill), which owns an apartment
complex in Newark. On the night of December 8, 1989, Kuzmicz was
assaulted on a vacant lot owned by defendant Newark Board of
Education (the Board). The lot is located between the complex
and a grocery store owned by defendant Great Atlantic & Pacific
Tea Company, Inc. (the A & P). The issue is whether under the
circumstances of this case Ivy Hill owed Kuzmicz a duty to
protect him by mending a bordering fence or warning him of the
risk of assault on the Board's property.
The jury awarded Kuzmicz $175,000, apportioning liability:
Kuzmicz twenty percent; the Board thirty percent; and Ivy Hill
fifty percent. The Appellate Division affirmed.
282 N.J. Super. 513 (1995). We granted Ivy Hill's petition for certification,
143 N.J. 322 (1995), and now reverse.
Seven to eight thousand people reside in the Ivy Hill apartment complex. Kuzmicz became a tenant in November 1986, approximately three years before the assault.
Adjacent to the Ivy Hill apartments is a seven-acre vacant
lot owned by the Board. The lot was strewn with debris and
overgrown with brush and trees. The lot was also the scene of
occasional drug activity and other criminal conduct.
Ivy Hill built an eight foot high chain-link fence to
separate its property from the lot. Over the course of several
years, Ivy Hill repaired the fence three or four times. In 1987,
the Board likewise repaired the fence.
On the opposite side of the lot, some 250 feet away, is a
shopping plaza in which the A & P was a tenant. Ivy Hill did not
own an interest in the plaza and derived no discernible economic
benefit from it.
At approximately 7:30 p.m. on December 8, 1989, Kuzmicz and
a friend were returning from the A & P to Kuzmicz's apartment. A
lighted sidewalk runs from the shopping plaza to the apartment
complex. Instead of using the sidewalk, they took a shortcut
along a winding path through the unlighted and wooded lot. By
cutting across the lot, tenants could reduce the walking time
from ten to thirteen minutes to seven to eight minutes, a savings
of three to six minutes. After Kuzmicz and his friend had
crossed two thirds of the lot, assailants stabbed Kuzmicz,
seriously injuring him.
Kuzmicz had used the path throughout his three-year
tenancy. Starting the week after moving into his apartment, he
walked on the path two or three times a week, sometimes at night.
To gain access to the path, the tenants or someone else had cut
an opening wide enough for two people to walk side-by-side
through the fence. Kuzmicz testified that he did not know who
owned the lot or whether anyone had been harmed while using the
path. Furthermore, he stated that no one had ever told him not
to use the path. He knew, however, that in 1988, the opening had
been closed by the installation of a new section of chain-link
fence.
To patrol the apartment complex, Ivy Hill employed a
security force, which included Donald Karas, a Newark police
officer. Karas had told some residents to use the lighted
sidewalks, instead of the darkened path.
Klaus Mangold, the administrator of the apartments, was
aware that tenants and employees used the path to go to the
shopping plaza, which also employed Mangold as a rental agent and
manager. On behalf of Ivy Hill, Mangold wrote to the mayor of
Newark and the superintendent of schools, complaining of the
Board's failure to maintain the lot, of criminal activity on it,
and of vandalism to Ivy Hill's fence. In a letter of October 24,
1985, Mangold wrote, in part:
We are deeply disturbed by the condition of
the vacant lot owned by the Board of
Education of the City of Newark. This lot is
between our back parking lot and the rear of
the Ivy Plaza Shopping Center. Our fencing
between the two properties is constantly
vandalized by persons wishing to take a
shortcut through the Board's property to the
shopping center.
The lot is overgrown with weeds and brush, is
full of garbage, has no lighting at night, is
not patrolled by the police and provides
shelter for vermin of all types. The path
through the lot is an extremely dangerous
area: there has been a murder and dozens of
muggings, including three of our employees,
as well as some of our tenants and visitors.
The situation has grown progressively worse
in the past week and shows no sign of being
corrected.
He also suggested that if Newark could not patrol the property,
the city should convey it to Ivy Hill. In a letter of May 19,
1989, Mangold again complained of the lot's condition, repeated
Ivy Hill's interest in acquiring it, and expressed concern over
the Board's failure to maintain and patrol the lot. Twice
between 1985 and the date of the attack, Newark notified the
Board of its failure to remove debris and cut the grass.
In the Law Division, Ivy Hill and the A & P each moved for
summary judgment under Rule 4:46. One judge denied Ivy Hill's
motion, but another judge granted the A & P's motion. In
granting the A & P's motion, the judge reasoned that the A & P
did not have a duty of care that extended beyond the store to the
adjacent lot. The Law Division also granted summary judgment for
Newark, but denied the Board's motion.
At trial, the court denied Ivy Hill's motion for an
involuntary dismissal at the close of Kuzmicz's case. See R.
4:37-2. After the jury returned its verdict, the court denied
Ivy Hill's motion for a judgment notwithstanding the verdict.
See R. 4:40-2. The Board did not appeal.
The Appellate Division affirmed, holding that Ivy Hill had a
duty of care to protect tenants from criminal activity on the
Board's lot by warning them of that activity or by closing the
gap in the fence. 282 N.J. Super. at 522. The court recognized
that it was making new law. Id. at 521. Noting that Ivy Hill
originally had "designed a gateway without a gate into the fence
it erected," the court stated that "[t]he jury could have
concluded that tenants justifiably viewed the open gateway as an
invitation to use the path to access the Shopping Center." Ibid.
This conclusion, coupled with Mangold's dual responsibilities,
allowed the jury further to "conclude that Ivy Hill
constructively appropriated the path to facilitate access to the
Shopping Center." Id. at 522. According to the court, from
Mangold's dual employment, the jury could have inferred that
Mangold had "an economic interest" in promoting and providing a
shortcut to the plaza. Id. at 522-23. Thus, the jury could have
found that Ivy Hill had a duty to warn its tenants or close the
gap by installing a "sturdy gate." Id. at 522.
The Appellate Division also affirmed the grant of the
A & P's motion for summary judgment, distinguishing the A & P
from Ivy Hill. The court reasoned that as a tenant of the
shopping plaza, the A & P did not have a duty to maintain a
fence, id. at 523, and that the evidence did not suffice to show
that A & P knew of the criminal activity on the Board's lot. Id.
at 523-24.
Against this background, we consider whether Ivy Hill owed Kuzmicz a duty to protect him from the risk of assault on the Board's property. Our analysis begins with the fact that Kuzmicz was injured on land that Ivy Hill did not own or control. The question is whether Ivy Hill owed Kuzmicz a duty to protect him by warning him of the risk of off-premises criminal assaults or by making more exhaustive efforts to seal the fence.
In the related context of 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.
Consistent with that analysis, we have 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, we
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.
We 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, we 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. We 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.
Similarly, we have 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, we 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).
That rationale simply does not apply in the present case. Simply
stated, existing precedent does not support the imposition of
liability on Ivy Hill for Kuzmicz's injuries that occurred on the
Board's property.
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). 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), on which the dissent relies, post at _ (slip op. at
29-30), 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. The facts of the present
case do not satisfy either condition.
The Appellate Division drew a series of inferences in
reaching the contrary conclusion that Ivy Hill derived an
economic benefit from the tenants' use of the path. The court
hypothesized that "the convenience of a shortcut to the Shopping
Center furthered Mangold's interests in both capacities [as
manager of the apartment complex and rental agent and manager of
the Shopping Center]." Kuzmicz, supra, 282 N.J. Super. at 522.
It further hypothesized that the assumed benefit to Mangold
somehow accrued to Ivy Hill's benefit and that "Ivy Hill
constructively appropriated the path to facilitate access to the
Shopping Center. Thus, this case combines a foreseeable risk of
danger with a management executive who had the motivation to
funnel tenants along the fence, through the gap, and onto the
path." Ibid.
Absent is any reference to facts supporting the assumed
economic benefit to Ivy Hill. The absence is understandable.
Nothing in the record supports the conclusion that Ivy Hill
benefitted economically from the tenants' use of the path.
This case reveals the tragic fact that life in inner cities
can be dangerous. Contrary to the dissent's contention, post at
(slip op. at 26-27), however, Ivy Hill's awareness of criminal
activity on the Board's property does not suffice to impose
liability on Ivy Hill for that activity. In effect, the dissent
would transfer to an innocent property owner the duty to prevent
criminal conduct that is more properly the responsibility of
others.
Imposing on a landlord a duty to pay a tenant for injuries
sustained in a criminal attack on another's property obviously
helps to compensate the tenant. The imposition of the duty,
however, transfers from one property owner to another the duty to
compensate for injuries sustained on the property of the first
owner. That duty carries costs, which provide a disincentive to
own rental property in urban areas.
In appropriate circumstances, property owners may be liable
if they negligently conduct activities that expose others to
foreseeable criminal attacks. Here, for example, the jury
understandably found the Board liable to Kuzmicz. The imposition
of liability on the Board, however, does not justify imposing
liability on Ivy Hill. The dissent's speculation that the
negligence occurred on Ivy Hill's property does not withstand
scrutiny. Post at _ (slip op. at 26-28). Kuzmicz was injured
not because Ivy Hill failed to exercise due care on its property,
but because the Board and others failed to prevent criminal
activity on the Board's property.
On the facts of this case, we find unpersuasive the
dissent's "distinction between foreseeability as a determinant of
a defendant's duty of care and foreseeability as a determinant of
whether a breach of duty is a proximate cause of the ultimate
injury." Post at _ (slip op. at 14). Contrary to the dissent,
post at _ (slip op. at 28-29), proximate cause is not at issue.
The only issue before us is whether Ivy Hill owed a duty to
Kuzmicz that extends to preventing or warning of criminal attacks
on the Board's property. Foreseeability, although relevant, does
not predetermine the issue of duty.
Critical to the dissent is the characterization of the fence
opening on Ivy Hill's property as an unsafe and hazardous exit.
Post at _ (slip op. at 27). The facts are to the contrary. Ivy
Hill provided its tenants with a safe exit to the public
sidewalks of Newark. It built a fence along its property line
with the Board's property. On three or four occasions, Ivy Hill
installed a section of chain-link fence to close the opening. On
another occasion the Board welded a section of fence over the
opening. If, as the Appellate Division contended, the open
gateway may be viewed as an "invitation" to use the path on the
Board's lot, 282 N.J. Super. at 521, then the repeated sealing of
the gateway by the installation of a chain-link fence, may be
viewed as warning not to use that path.
Kuzmicz had lived in Ivy Hill for three years, and had used
the path on numerous occasions. For his own convenience, he
chose not to use the public sidewalks. Instead, he took a
shortcut across the Board's property. Although his injuries are
regrettable, they are not the result of Ivy Hill's fault.
If Kuzmicz could recover from Ivy Hill because he was mugged
on the Board's property while returning from the A & P,
presumably he could recover also for injuries resulting from
muggings on the Board's property while returning from work, the
movies, the library, a restaurant, or a bar. The other eight
thousand tenants likewise would be entitled to recover against
Ivy Hill if they were injured as they crossed the Board's
property. And if the risk of mugging was foreseeable on other
properties in the area, how could the dissent deny recovery if
tenants were mugged on those properties? In each instance,
according to the dissent's theory, Ivy Hill would have breached a
duty of care to the tenant by failing to warn of the risk of
criminal activity or by failing to erect an impenetrable barrier
between the other properties and the apartment house. To impose
a duty on a landlord for the safety of tenants while on property
over which the landlord has no control and from which it derives
no benefit would be unprecedented. Precedent in this State and
elsewhere supports the conclusion that under the circumstances of
this case, the landlord does not owe a duty to the tenant for a
criminal assault on the Board's property.
We empathize with the desire to compensate the victim of a
criminal attack. That desire, however, should not predetermine
the existence of the duty of a property owner for off-premises
injuries. On these facts, it would be unfair to hold Ivy Hill
liable to Kuzmicz for the failure to warn him of the possibility
of an assault on the Board's path or for the failure to take
greater measures to mend the fence. In so concluding, we do not
foreclose the recognition of a landlord's duty to a tenant for
off-premises injuries under different facts.
Because we find that Ivy Hill did not owe a duty to protect Kuzmicz by mending the fence or warning of the possibility of criminal assault on the Board's property, we need not resolve whether the Law Division's grant of summary judgment in favor of the A & P was inconsistent with the imposition of liability on Ivy Hill.
The judgment of the Appellate Division is reversed, and the matter is remanded to the Law Division for the entry of a judgment in favor of Ivy Hill.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI and COLEMAN join in JUSTICE POLLOCK'S opinion. JUSTICE STEIN filed a separate dissenting opinion in which JUSTICES HANDLER and O'HERN join. SUPREME COURT OF NEW JERSEY
A- 5 September Term 1996
IRENEUSZ KUZMICZ, MARIE KUZMICZ,
TADEUSZ WRONOWSKI AND HANNAH
WRONOWSKI,
Plaintiffs-Respondents,
v.
IVY HILL PARK APARTMENTS, INC.
a/k/a IVY HILL PARK SECTION V,
INC.,
Defendant and Third Party
Plaintiff-Appellant,
and
CITY OF NEWARK AND NEWARK BOARD OF
EDUCATION,
Defendants,
v.
GREAT ATLANTIC AND PACIFIC TEA
COMPANY, INC.,
Third Party Defendant-
Respondent,
and
JOHN DOE,
Third Party Defendant.
________________________________
STEIN, J., dissenting
In this appeal we consider, in a unique factual context, the liability of an urban landlord to a tenant injured by third-party criminal conduct on property immediately adjacent to the
landlord's property. The alleged negligence consisted primarily
of the landlord's failure to repair a more than six-year-old
opening in a fence on its own property that led to a well-worn
and regularly used path from the landlord's premises to a nearby
shopping center. The proofs conclusively demonstrated the
landlord's awareness that the property through which the path ran
was the scene of numerous muggings, sexual assaults, and frequent
violence for a number of years prior to the tenant's injury. The
jury determined that the landlord had negligently failed to
repair the fence to prevent tenants from using the path, and
further determined that despite the intervening third-party
criminal conduct the landlord's negligence constituted a
proximate cause of the tenant's injury. The Appellate Division
affirmed a jury verdict that imposed on the landlord fifty
percent of the liability for the tenant's damages, the jury
allocating thirty percent of the fault to the adjacent property
owner and twenty percent to the tenant. We granted the
landlord's petition for certification to consider its contentions
that as a matter of law it owed no duty to its tenants to close
the opening in the fence leading to the path, and even if it had
such a duty the casual connection between its alleged negligence
and its tenant's injury was insufficient as a matter of law to
justify the imposition of liability.
Disregarding this Court's longstanding and consistently
fact-oriented precedent in determining the existence of a legal
duty, the majority reverses the judgment against Ivy Hill. It
concludes as a matter of law that Ivy Hill breached no duty to
plaintiff in failing to repair the fence opening on its own
property that, as it knew, led to the path on the Board of
Education lot that had been the scene of numerous muggings,
robberies, and sexual assaults in recent years. Remarkably, the
Court ignores the jury's conclusion that Ivy Hill's three or four
unsuccessful attempts over six years to repair this fence opening
did not adequately discharge Ivy Hill's duty to its tenants to
eliminate an unsafe exit from its property.
Instead, the Court concludes as a matter of law that "Ivy
Hill did not owe a duty to protect Kuzmicz by mending the fence
or warning of the possibility of criminal assault on the Board's
property." Ante at ___ (slip op. at 18). The Court supports
that legal conclusion by making its own findings of fact,
rejecting the jury's conclusion that the fence opening on Ivy
Hill's property was an unsafe and hazardous exit. The Court
states: "The facts are to the contrary. Ivy Hill provided its
tenants with a safe exit to the public sidewalks of Newark."
Ante at ___ (slip op. at 16). Putting to one side the Court's
usurpation of the jury's function, the notion that the existence
of a safe exit could excuse a landlord's duty to eliminate an
unsafe exit is anomalous and unprecedented.
Throughout its opinion, the Court avoids reference to legal
principles that define Ivy Hill's duty to eliminate an unsafe
exit for its tenants. Rather, the Court prefers to focus its
analysis on a friendlier but totally exaggerated target -
whether, as the Court puts it, precedent supports the imposition
of “liability on commercial landowners for off-premises murder or
assault.” Ante at ___ (slip op. at 10). That overstatement of
the legal issue is the majority opinion's recurrent theme.
“Generally, a possessor of land is not liable for off-premises
injuries merely because those injuries are foreseeable.” Ante at
___ (slip op. at 10). “[A] landowner does not owe a duty to
protect people from criminal activity on adjacent premises that
the landowner does not own or control.” Ante at ___ (slip op. at
12). “Imposing on a landlord a duty to pay a tenant for injuries
sustained in a criminal attack on another's property obviously
helps to compensate the tenant. * * * [However], [t]hat duty
carries costs, which provide a disincentive to own rental
property in urban areas.” Ante at ___ (slip op. at 15).
The Court's hyperbole rises to doomsday proportions when it
cautions that "[i]f Kuzmicz could recover from Ivy Hill because
he was mugged on the Board's property while returning from the
A & P, presumably * * * [t]he other eight thousand tenants
likewise would be entitled to recover against Ivy Hill if they
were injured as they crossed the Board's property." Ante at ___
(slip op. at 17). The likelihood that other tenants might
benefit from our decision did not deter this Court in Trentacost
v. Brussel,
82 N.J. 214, 223 (1980), from imposing liability for
criminal assault of a tenant on a landlord that provided
inadequate security for common areas in rental premises, or in
Braitman v. Overlook Terrace Corp.,
68 N.J. 368, 382-83 (1975),
from imposing liability for theft from a residential tenant's
apartment on a landlord that failed to supply adequate locks for
the apartment's door. Those decisions were premised on this
Court's recognition of a landlord's duty to take reasonable
precautions for the protection of tenants, and were not
influenced by forecasts about the number of tenants who might in
the future recover judgments based on our holdings. Although our
tort law jurisprudence may serve to identify the essential
elements of a successful cause of action, its greater goal is to
influence parties to take steps to protect those to whom they owe
a duty of care.
The Court's overstatement of the issue attempts to shift the
focus of the appeal to the generalized problem of urban
landlords' liability for off-premises criminal assaults, and
raises the false concern that to uphold this jury verdict exposes
all urban property owners to liability for criminal assaults near
their property. The former Essex County Assignment Judge who
tried this case in the Law Division understood that the critical
legal issue was much narrower: whether this specific landlord,
thoroughly informed of the hazards confronting tenants electing
to go through the fence opening and walk along the path on the
Board of Education property, owed a duty to its tenants to
eliminate or warn of the unsafe exit on its property?
The Court's rejection of the duty recognized by both lower
courts is deeply troublesome. At best, it may reflect an
isolated overreaction to the effect of a single jury verdict
involving liability for a criminal assault in an urban
neighborhood. At worst, it may reflect an unfortunate change of
course away from this Court's traditional jurisprudence pursuant
to which the imposition of duty for purposes of negligence
liability has been based on fact-specific considerations of
fairness and public policy.
The facts are not disputed. In 1986, Ireneusz Kuzmicz, a
recent immigrant, moved into an apartment complex owned and
operated by defendant Ivy Hill Park Apartments, Inc. (Ivy Hill).
The complex housed approximately eight thousand residents.
Adjoining the back of Ivy Hill's property was an undeveloped,
wooded lot owned by defendant Newark Board of Education (Board).
On the opposite side of the wooded lot was a shopping center in
which was located an A & P supermarket operated by third-party
defendant Great Atlantic and Pacific Tea Company, Inc. (A & P).
A well-worn footpath crossed the Board's lot, providing a
shortcut between Ivy Hill's apartment complex and the
supermarket.
A chain link fence that had been installed by Ivy Hill prior
to 1985 bordered the rear of Ivy Hill's property and separated it
from the wooded lot. To gain access to the path across the lot,
tenants walked through an opening in Ivy Hill's fence that led
directly to the path. The opening was wide enough for two
persons to walk through side by side and appeared to have been
created by someone cutting away or pulling apart a section of the
fence between two supporting poles. Security guard Donald Karas,
who had worked for Ivy Hill for approximately six years prior to
the December 1989 assault on Kuzmicz, testified that the opening
in the fence existed when he commended his employment. He
recalled only three or four instances during those six years when
the opening in the fence was repaired or closed off by the
installation of a new piece of fencing between the two poles, but
stated that each time it was closed off the opening would
eventually reappear. When the opening in the fence provided
access, tenants frequently used the path to walk to and from the
shopping center. Using that shortcut eliminated the need to use
the public streets and sidewalks and shortened one's walk by
about six minutes. Approximately ten to fifteen tenants used the
path each evening.
There were no warning signs posted on or near the fence and
no one had ever told Kuzmicz not to use the path. Kuzmicz took
the shortcut to the supermarket two or three times each week to
shop for groceries and frequently saw other tenants using the
path for the same purpose. In the year before he was attacked,
Kuzmicz observed that the opening in the fence was temporarily
closed for a week or two by a piece of chain link fencing that
was attached to the existing fence with a few wires. During that
period, he traveled to the A & P by a different route. Whenever
the path was accessible, however, Kuzmicz walked to the shopping
center by using the path. He did not know who owned the wooded
lot, but assumed that Ivy Hill owned it because of the opening in
the fence that led directly to the path. Prior to being
assaulted, he was not aware of anyone being harmed while using
the path.
Ivy Hill employed security guards to patrol and secure the
apartment complex. Donald Karas, the Newark police officer
employed as a part-time guard, patrolled the complex and
responded to complaints by tenants. Ivy Hill never instructed
Karas or any of its security guards to warn tenants and employees
not to leave the complex by way of the opening in the fence. On
occasion, however, Karas had suggested to people whom he knew
personally that they should not use the path in the dark because
it was unsafe and should instead use the lighted streets and
sidewalks. Karas offered this advice based on his knowledge as a
police officer that the wooded lot was dangerous.
Klaus Mangold managed the Ivy Hill apartment complex. He
had been Ivy Hill's administrator since May 1975 and his office
was located on the premises of the apartment complex for at least
four years prior to the attack on Kuzmicz. Mangold was also
employed as the rental agent and manager at the shopping center.
Mangold knew that Ivy Hill tenants and employees used the path to
travel between the apartment complex and the shopping center and
had been doing so since prior to 1985. In response to a pre-trial request for admissions, Ivy Hill admitted that it was
aware, based on the knowledge of its agents and employees, that
tenants used the opening in the fence to get to the A & P.
Mangold and Ivy Hill also knew that the wooded lot was
dangerous. Prior to the assault on Kuzmicz, Mangold had written
letters on Ivy Hill's behalf to the Mayor of Newark and the
Newark Superintendent of Schools concerning the condition of the
Board's lot. In his October 1985 letter to the Mayor, Mangold
described the "extremely dangerous" nature of the lot and
suggested that the City deed the lot to Ivy Hill to remedy the
situation:
We are deeply disturbed by the condition of
the vacant lot owned by the Board of
Education of the City of Newark. This lot is
between our back parking lot and the rear of
the Ivy Plaza Shopping Center. Our fencing
between the two properties is constantly
vandalized by persons wishing to take a
shortcut through the Board's property to the
shopping center.
The lot is overgrown with weeds and brush, is
full of garbage, has no lighting at night, is
not patrolled by the police and provides
shelter for vermin of all types. The path
through the lot is an extremely dangerous
area: there has been a murder and dozens of
muggings, including three of our employees,
as well as some of our tenants and visitors.
The situation has grown progressively worse
in the past week and shows no sign of being
corrected.
We would suggest that, if the City of Newark
is unable and/or unwilling to adequately
patrol, light and maintain the property,
including clearing it of all brush, debris,
garbage, etc., and thereby make it a safe
environment for our tenants, visitors and
staff, then the City should consider deeding
it to Ivy Hill and we will gladly do
so. . . .
In 1986 or 1987, employees of the Board of Education
inspected the wooded lot and the fence that bordered Ivy Hill's
property. The Board reported a hole in the fence to an Ivy Hill
employee. In 1987, the Board's maintenance team repaired a hole
in Ivy Hill's fence to stop people from entering the Board's lot
from Ivy Hill's property. The Board also removed debris from the
lot and installed some metal posts on the shopping-center side of
the property to prevent people from backing trucks onto the lot
to dump garbage. Prior to that, there had been a four- or five-foot fence separating the Board's property from the shopping
center parking lot behind the A & P. Because unknown persons had
driven trucks over the fence to dump trash, the Board installed
the metal posts to prevent further dumping. The fence, however,
was never repaired.
In May 1989, Mangold wrote a second letter, this time to the
Superintendent of Schools, to express Ivy Hill's continued
concerns about the wooded lot and its ongoing interest in
acquiring the property:
For several years we have been deeply
concerned about the conditions existing on
the property owned by the Board of Education.
The land in question is between our property
and the Ivy Plaza shopping area, bordering
Irvington Avenue; it is vacant and untended.
While neither the City of Newark, nor the Newark Board of Education, has the resources to adequately maintain or patrol vacant land, the area has been the site of several homicides, countless muggings, continual drug dealing, in addition to being used by youths and adults for drinking, and other activities. The overgrown conditions on the lot, together with the lack of removal of
illicitly dumped garbage, creates a haven for
rodents, and makes the lot an unsightly
blight on the neighborhood. These conditions
have a severely detrimental effect upon our
complex and tenants.
We are enclosing herewith copies of our
previous correspondence with the City, from
which you will gather that we are extremely
interested in acquiring this property since
we are in the best position to develop and
maintain this area. It is obviously in the
best interests of the Board of Education, the
City as a whole and this neighborhood in
particular, to have the property change from
a fiscally draining liability to tax-revenue-generating status.
A few months later, on December 8, 1989, at about 7:30 p.m.,
Kuzmicz and a friend were assaulted while walking back to
Kuzmicz's apartment along the shortcut path after shopping at the
A & P. They were about two-thirds of the way back along the path
when two men suddenly appeared in front of them and blocked their
way. Kuzmicz turned around and saw a third man blocking the path
behind them. The three unknown assailants attacked and robbed
Kuzmicz and his companion. Kuzmicz was stabbed at least three
times and suffered lacerations of his heart and liver.
Kuzmicz sued defendants Ivy Hill, the Board of Education,
and the City of Newark. Ivy Hill filed a third-party action for
contribution against A & P. All defendants moved for summary
judgment. Ivy Hill contended that it owed no duty to Kuzmicz in
respect of criminal activity on the Board's property as a matter
of law. The trial court denied Ivy Hill's summary judgment
motion. The court determined that issues of material fact were
presented because a jury reasonably could conclude that Ivy
Hill's failure to maintain its fence constituted a breach of its
duty to tenants to provide a safe exit from its property, and
that Ivy Hill's negligence was a proximate cause of plaintiff's
injuries.
The court also denied the Board's summary judgment motion,
but granted the City's summary judgment motion, because the
Board, not the City, owned the wooded lot. Lastly, the court
granted the summary judgment motion of A & P, "on the grounds
that there [was] no viable theory of liability that would hold A
& P liable for criminal acts or anti-social acts committed upon
property which is not owned by it, over which it exercises no
control, and has never given the appearance[] of exercising
control."
The case was tried before a jury. At the conclusion of
Kuzmicz's proofs, Ivy Hill moved for involuntary dismissal as a
matter of law. The court denied the motion. The jury awarded
Kuzmicz total damages of $175,000 and determined that Ivy Hill
was fifty percent negligent, the Board was thirty percent
negligent, and Kuzmicz was twenty percent negligent. The trial
court molded the judgment in accordance with the verdict. Ivy
Hill moved for judgment notwithstanding the verdict, or, in the
alternative, a new trial on all issues. That motion was denied.
Ivy Hill appealed.
Ivy Hill's primary contention on appeal was that it could
not be responsible for a criminal act occurring on property of
another. In response to that contention, the Appellate Division
concluded that the uncontroverted evidence justified the
imposition of liability on Ivy Hill. The court reasoned:
It is uncontroverted that Ivy Hill was
aware of the incidence of violent criminal
activity on the Board's lot and, therefore,
that its tenants who used the path across the
lot were at risk of becoming victims of
violent crimes. Despite this risk, Ivy Hill
did not warn its tenants of the danger. To
the contrary, Ivy Hill designed a gateway
without a gate into the fence it erected.
The jury could have concluded that tenants
justifiably viewed the open gateway as an
invitation to use the path to access the
Shopping Center.
Ivy Hill argues that it had no duty to
construct the fence and that the fence was no
more of an invitation to use the Board's lot
than a boundary line without a fence. We
disagree. The fence with an open gateway
focused attention on the path to which the
opening gave access, and implied that it was
appropriate to use the path.
We do not rule that Ivy Hill had a duty
to police the Board's lot or otherwise to
make it safer by, for example, providing
adequate lighting on it. The lot belonged to
the Board of Education and Ivy Hill had no
authority to enter the lot for those
purposes. However, a jury could have found
that Ivy Hill was negligent in failing to
warn its tenants of the risk of injury due to
criminal activity, or in failing to close the
gap in the fence by installing a sturdy gate,
or both.
[
282 N.J. Super. 513, 521-22 (1995)
(citations omitted).]
The Appellate Division rejected Ivy Hill's further contention that the trial court should have applied to Ivy Hill the same rule of law that it applied to A & P. Ivy Hill argued that either Ivy Hill and A & P were both liable for Kuzmicz's
injuries or neither was liable. The Appellate Division reasoned
that "the facts bearing on A & P's potential liability differed
substantially from Ivy Hill's circumstances." Id. at 523. The
court noted two differences in the facts applicable to the two
defendants: first, although there was ample evidence of Ivy
Hill's knowledge of the criminal activity on the wooded lot,
there was no evidence that A & P shared that knowledge, id. at
523-24, and second, the facts did not support an inference that
A & P had a maintenance obligation in respect of the fence that
bordered the shopping center because A & P did not own the
shopping center premises or that fence and the relevant lease
provisions expressly obligated the shopping center's owners, not
A & P, to maintain common facilities. Id. at 523. Based on
those factual differences, the Appellate Division concluded that
the trial court did not err in granting A & P's summary judgment
motion.
Before addressing the specific issue of Ivy Hill's duty to its tenants, which is influenced to some extent by the foreseeability of possible harm to tenants using the path on the adjacent lot, I note preliminarily the significant distinction between foreseeability as a determinant of a defendant's duty of care and foreseeability as a determinant of whether a breach of duty is a proximate cause of the ultimate injury. Justice
Clifford clearly articulated the distinction in Hill v. Yaskin,
75 N.J. 139, 143 (1977):
In order to ascertain the existence vel
non of a duty owed by either defendant in the
circumstances before us, it is necessary to
determine whether or not probable harm to one
in the position of this injured plaintiff, a
police officer in pursuit of the stolen
automobile, should reasonably have been
anticipated from defendant's conduct. The
issue of foreseeability in this sense must be
distinguished from the issue of
foreseeability as that concept may be said to
relate to the question of whether the
specific act or omission of the defendant was
such that the ultimate injury to the
plaintiff was a reasonably foreseeable result
so as to constitute a proximate cause of the
injury. Simply put, the distinction is
between foreseeability as it impacts on duty
determination and foreseeability as it is
sometimes applied to proximate cause, a
critical distinction too often (because too
easily) overlooked. Professor Leon Green, in
his tidy little Rationale of Proximate Cause
(1927), characterizing the failure to make
this distinction as "unpardonable" and
productive of "interminable confusion," gives
us a pointed comment from Salmond, Law of
Torts at 144 (6th Ed.): "To treat as a
question of remoteness what is really a
question as to the existence of negligence or
other fault is a fertile source of
confusion." Green, op cit. at 82-83.
The Hill Court relied in part on the following explanation
of the concept of foreseeability as a "duty" determinant:
The probability of injury by one to the
legally protected interest of another is the
basis for the law's creation of a duty to
avoid such injury, and foresight of harm lies
at the foundation of the duty to use care and
therefore of negligence. The broad test of
negligence is what a reasonably prudent
person would foresee and would do in the
light of this foresight under the
circumstances. Negligence is clearly
relative in reference 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. In other words, damages for
an injury resulting from a negligent act of
the defendant may be recovered if a
reasonably prudent and careful person should
have anticipated, under the same or similar
circumstances, that injury to the plaintiff
or to those in a like situation would
probably result. The most common test of
negligence, therefore, is whether the
consequences of the alleged wrongful act were
reasonably to be foreseen as injurious to
others coming within the range of such acts.
[Id. at 144 (quoting
57 Am. Jur. 2d
Negligence § 58 (1970)) (footnotes omitted).]
In New Jersey,
[t]he traditional common law approach to landowner or occupier tort liability . . . is predicated on the status of the person on the property at the time of the injury. Historically, the duty of the owner or occupier to such a person is gauged by the right of that person to be on the land. That status is determined by which of three clas