Inadequate Security and Liability for Criminal Attack in NJ
Edited by Kenneth Vercammen
Many
people are injured when attacked on a business property, when the
property owner fails to provide adequate security. Injured persons may
be able to recover damages plus payment of medical bills. The New Jersey
Supreme Court in Kuzmicz v. Ivy Hill Park Apartments, 147 N.J. 510.
(1997) reviewed liability for injuries suffered by people attacked. The
duty of landowners for injuries that occur on their premises, the
analysis no longer relies exclusively on the status of the injured
party. Instead "[t]he issue is whether, in light of the actual
relationship between the parties under all of the surrounding
circumstances, the imposition of a duty on the landowner is fair and
just." Brett v. Great Am. Recreation, 144 N.J. 479, 509 (1996) (quoting
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)). For
off-premises liability, the issue is substantially the same. In both
contexts, however, the analysis is fact-sensitive. Hopkins, supra, 132
N.J. at 439. Ultimately, the determination of the existence of a duty is
a question of fairness and public policy. Snyder v. American Assn of
Blood Banks, 144 N.J. 269, 292 (1996); Crawn v. Campo, 136 N.J. 494, 501
(1994); Dunphy v. Gregor, 136 N.J. 99, 108 (1994); Kelly v. Gwinnell,
96 N.J. 538, 544 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583
(1962). Foreseeability of injury to another is important, but not
dispositive. Snyder, supra, 144 N.J. at 292; Carter Lincoln-Mercury v.
EMOR Group, 135 N.J. 182, 194 (1994). Fairness, not foreseeability
alone, is the test. Relevant to the determination of the fairness of the
imposition of a duty on a landowner is the nature of the risk, the
relationship of the parties, the opportunity to exercise care, and the
effect on the public of the imposition of the duty. Dunphy, supra, 136
N.J. at 108; Hopkins, supra, 132 N.J. at 439; Goldberg, supra, 38 N.J.
at 583.
Landlord liable to Tenant Consistent with that analysis,
the Court has found a landlord liable to a tenant for damages resulting
from a burglary when the landlord failed to replace a broken dead-bolt
lock on the tenants apartment. See Braitman v. Overlook Terrace Corp.,
68 N.J. 368 (1975). The apartment house was in an area where break-ins
were common, and the landlord had assured the tenant that it would
repair the lock. Id. at 371-73. Furthermore, a regulation of the
Department of Community Affairs required the landlord to furnish a
working lock. Id. at 383-84. In that context, the Court held, "[a]
residential tenant can recover damages from his landlord upon proper
proof that the latter unreasonably enhanced the risk of loss due to
theft by failing to supply adequate locks to safeguard the tenants
premises after suitable notice of the defect." Id. at 383. The Court
likewise have imposed liability on a landlord who provides inadequate
security for common areas of rental premises for the failure to prevent a
criminal assault on a tenant. See Trentacost v. Brussel, 82 N.J. 214
(1980). In Trentacost, the apartment was in a high crime area. Id. at
218-19. Burglars and other unauthorized persons previously had broken
into the building. Id. at 219. Contrary to an administrative regulation,
the landlord had not installed a lock on the front entrance. Id. at
222. On those facts, the Court held that "[b]y failing to do anything to
arrest or even reduce the risk of criminal harm to his tenants, the
landlord effectively and unreasonably enhanced that risk." Ibid. The
Court relied in part on the implied covenant of habitability in the
lease and stated that "[t]he premises which the landlord must secure
necessarily encompass the common areas of multiple dwellings." Id. at
228. In both Braitman and Trentacost, the criminal act resulting in the
imposition of liability on the landlord occurred in the apartment house.
Supermarket Liability Similarly, the Court has held that the owner of a
supermarket may be liable to a customer who is mugged at night in the
markets parking lot. See Butler v. Acme Markets, Inc., 89 N.J. 270
(1982). In Butler, unknown to the customer, seven muggings had occurred
in the lot during the preceding year, five in the evenings during the
four months preceding the attack in question. Id. at 274. To combat the
muggings, the market had hired off-duty policeman. Ibid. At the time of
the attack, however, the only guard was inside the market; no one was on
duty in the parking lot. Id. at 275. In that setting, the Court held
that the market had a duty to protect the customer from foreseeable
criminal activity. Id. at 284. Uniting Braitman, Trentacost, and Butler
is the premise that landlords and business owners should be liable for
foreseeable injuries that occur on their premises. The underlying
rationale is that they are in the best position to control the risk of
harm. See Butler, supra, 89 N.J. at 284. Ownership or control of the
premises, for example, enables a party to prevent the harm. Accord
Steinmetz v. Stockton City Chamber of Commerce, 214 Cal. Rptr. 405, 408
(Ct. App. 1985) (reasoning that duty is grounded in possession of
premises and right to control and manage premises); LaFleur v.
Astrodome-Astrohall Stadium Corp., 751 S.W. 2d 563, 565 (Tex. Ct. App.
1988) (holding that duty to provide protection arises from defendants
power of control). Usually there is no liability in off - premise
assault. Courts from other states likewise have refused to impose
liability on commercial landowners for off-premises murder or assault.
See, e.g., Steinmetz, supra, 214 Cal. Rptr. at 408 (declining to impose
liability because of difficulty in defining scope of any duty owed by
landowner off premises and not controlled by him); Wofford v. Kennedys
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 landowners liability becomes nearly impossible to draw").
Generally, a possessor of land is not liable for off-premises injuries
merely because those injuries are foreseeable. See, e.g., MacGrath v.
Levin Properties, 256 N.J. Super. 247 (App. Div. 1992), certif. denied,
130 N.J. 19 (1992); Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 705
(Ohio 1995); see generally Restatement (Second) of Torts § 314A comment
c (1965) (indicating possessor of land is not under duty to person
endangered or injured when one has ceased to be an invitee). That
general rule protects an abutting property owner from liability for
injuries that occur on a public way. See Restatement (Second) of Torts
§ 349 (1965); see also MacGrath, supra, 256 N.J. Super. at 251-52
(noting court follows Restatement § 349 unless exception applies).
Sidewalk Fall down Liability A narrow exception imposes liability on
commercial landowners for injuries to pedestrians on abutting sidewalks.
See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). The duty to
maintain the sidewalks flows from the economic benefit that a commercial
landowner receives from the abutting sidewalk and from the landowners
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 owners liability for off-premises injuries.
Critical to those decisions is the premise that a landowners 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. Aulettos 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
caterers 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 tenants 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 owners duty
to warn or protect business invitees from foreseeable criminal activity
extends to premises in possession and control of owner and therefore
owner not liable for injuries suffered by patron attacked in common area
of shopping center). Southland Corp. v. Superior Court, 250 Cal. Rptr.
57 (Ct. App. 1988), is consistent with that premise. In Southland, three
assailants attacked a customer from a convenience store in a parking
lot ten feet away from the stores 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 landlords control of an adjacent
lot or realization of "a significant commercial benefit" from tenants
use of the lot, the landlord does not owe a duty to warn tenants of the
risk of criminal assault on the lot. See Ibid. Conclusion There is a
possibility of imposing on a landlord a duty to pay a tenant for
injuries sustained in a criminal attack on its property to help
compensate the tenant. In appropriate circumstances, property owners may
be liable if they negligently conduct activities that expose others to
foreseeable criminal attacks. Contact a Trial Attorney to discuss your
rights. |
| Consequences of a Criminal Guilty Plea 1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s) 2. Do you understand that if you plead guilty: a. You will have a criminal record3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail. 4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing. 5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution. 6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 8. You must wait 5-10 years to expunge a first offense. 2C:52-3 9. You could be put on Probation. 10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2 years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30. 11. You may be required to do Community Service. 12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty. 13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 15. You lose the presumption against incarceration in future cases. 2C:44-1 16. You may lose your right to vote. The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense. Jail for Crimes and Disorderly Conduct: If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms. NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years; (2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years; (3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years; (4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months. 2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed: a. (1) $200,000.00 when the conviction is of a crime of the first degree; (2) $150,000.00 when the conviction is of a crime of the second degree; b. (1) $15,000.00 when the conviction is of a crime of the third degree; (2) $10,000.00 when the conviction is of a crime of the fourth degree; c. $1,000.00, when the conviction is of a disorderly persons offense; d. $500.00, when the conviction is of a petty disorderly persons offense; If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500 |
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