Kuzmicz v. Ivy Hill Park Apartments, Inc.

688 A.2d 1018, 147 N.J. 510, 1997 N.J. LEXIS 55

• Court: Supreme Court of New Jersey
• Decided: February 20, 1997
• Status: Published

Opinions

The opinion of the Court was delivered by

POLLOCK, J.

Plaintiff Ireneusz Kuzmiez 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, Kuzmiez 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 Kuzmiez 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 Kuzmiez $175,000, apportioning liability: Kuzmiez twenty percent; the Board thirty percent; and Ivy Hill fifty percent. The Appellate Division affirmed. 282 N.J.Super. 513, 660 A.2d 1208 (1995). We granted Ivy Hill’s petition for certification, 143 N.J. 322, 670 A.2d 1063 (1995), and now reverse.

I.

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 brash, 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, 660 A.2d 1208. The court recognized that it was making new law. Id. at 521, 660 A.2d 1208. 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, 660 A.2d 1208. 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, 660 A.2d 1208. 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, 660 A.2d 1208.

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 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, 660 A.2d 1208.

II.

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, 677 A.2d 705 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438, 625 A.2d 1110 (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, 625 A.2d 1110.

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, 676 A.2d 1036 (1996); Crawn v. Campo, 136 N.J. 494, 501, 643 A.2d 600 (1994); Dunphy v. Gregor, 136 N.J. 99, 108, 642 A.2d 372 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583, 186 A.2d 291 (1962). Foreseeability of injury to another is important, but not dispositive. Snyder, supra, 144 N.J. at 292, 676 A.2d 1036; Carter Lincoln-Mercury, Inc. v. EMAR Group, 135 N.J. 182, 194, 638 A.2d 1288 (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, 642 A.2d 372; Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110; Goldberg, supra, 38 N.J. at 583, 186 A. 2d 291.

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, 346 A.2d 76 (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, 346 A.2d 76. Furthermore, a regulation of the Department of Community Affairs required the landlord to furnish a working lock. Id. at 383-84, 346 A.2d 76. 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, 346 A.2d 76.

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, 412 A.2d 436 (1980). In Trentacost, the apartment was in a high crime area. Id. at 218-19, 412 A.2d 436. Burglars and other unauthorized persons previously had broken-into the building. Id. at 219, 412 A.2d 436. Contrary to an administrative regulation, the landlord had not installed a lock on the front entrance. Id. at 222, 412 A.2d 436. 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, 412 A.2d 436. 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, 445 A.2d 1141 (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, 445 A.2d 1141. 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, 445 A.2d 1141. In that setting, we held that the market had a duty to protect the customer from foreseeable criminal activity. Id. at 284, 445 A.2d 1141.

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, 445 A.2d 1141. Ownership or control of the premises, for example, enables a party to prevent the harm. Accord Steinmetz v. Stockton City Chamber of Commerce, 169 Cal.App.2d 1142, 214 Cal.Rptr. 405, 408 (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.App.-Hous.1988) (holding that duty to provide protection arises from defendant’s power of control). That rationale does not apply in the present ease. Simply stated, existing precedent does not support the imposition of liability on Ivy Hill for Kuzmiez’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, 606 A.2d 1108 (App.Div.1992), certif. denied, 130 N.J. 19, 611 A.2d 656 (1992); Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 652 N.E.2A 702, 705 (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, 606 A.2d 1108 (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, 432 A.2d 881 (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, 432 A.2d 881; Davis v. Pecorino, 69 N.J. 1, 8, 350 A.2d 51 (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 proposition 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, 535 A.2d 528 (1987). In Chimiente, sidewalks provided a safe alternative route. Id. at 584, 535 A.2d 528. 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, 606 A.2d 1108. 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, 499 A.2d 1026 (1985), certif. denied, 103 N.J. 473, 511 A.2d 653 (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, 499 A.2d 1026. 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, 680 A.2d 793, certif. denied, 147 N.J. 263, 686 A.2d 764 (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, 680 A.2d 793. 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 Western School of Law, 200 Cal.App.2d 715, 246 Cal.Rptr. 199, 201 (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, 73 Ohio St.3d 130, 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, 203 Cal.App.3d 656, 250 Cal.Rptr. 57 (1988), on which the dissent relies, post at 543, 688 A.2d at 1035, 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].” 282 N.J.Super. at 522, 660 A.2d 1208. It further hypothesized that the assumed benefit to Mangold somehow acerued to Ivy Hill’s benefit and that “Ivy Hill constructively appropriated the path to facilitate access to the Shopping Center. Thus, this ease 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 539-41, 688 A. 2d at 1033-34, 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 539-43, 688 A.2d at 1033. 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 532-33, 688 A.2d at 1029. Contrary to the dissent, post at 542-43, 688 A.2d at 1034-35, 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 541-42, 688 A.2d at 1034. 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, 660 A.2d 1208, 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 any fault of Ivy Hill.

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. 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 Kuzmiez 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.

III.

Because we find that Ivy Hill did not owe a duty to protect Kuzmiez 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.