For reversal -- Chief Justice Weintraub, and Justices Francis, Hall and Haneman. For affirmance -- Justices Jacobs, Proctor and Schettino. The opinion of the court was delivered by Weintraub, C.J. Jacobs, J., joined by Proctor and Schettino, JJ. (dissenting).
[38 NJ Page 579] While delivering milk to a tenant at defendant's housing project, plaintiff was beaten and robbed by two men. The attack occurred at about 1:30 P.M. in a self-service passenger elevator. Whether the assailants were tenants, guests of tenants, or intruders, is not known. The jury found for plaintiff and the Appellate Division affirmed. 70 N.J. Super. 245 (1961). We granted certification. 36 N.J. 233 (1961).
Plaintiff prevailed upon the single thesis that defendant had a duty to provide police protection.*fn1
Defendant is a public corporation created by the City of Newark under the Local Housing Authorities Law (N.J.S.A. 55:14A-1 et seq.). It developed a number of projects. The one here involved embraces 19.15 acres, with 10 apartment houses, each of 12 stories, offering accommodations for 1,458 families. The residents at the time here involved numbered between 5,300 and 6,000. The Appellate Division said (70 N.J. Super., at p. 255):
"We hold that defendant, since it created and maintained a housing project which, because of its size, physical composition and method of operation, was beyond the pale of regular municipal police surveillance, and yet because of these same factors was susceptible to criminal activities, was under a duty to provide such protection in the Hayes project as was necessary under the circumstances, and that a question
of fact was presented for jury consideration as to whether the provisions made by defendant for private police guards were adequate. As to whether defendant's dereliction, if any, was the proximate cause of plaintiff's injuries and the damage he suffered, again it was for the jury to decide from the evidence whether the assault and robbery was a result of defendant's negligence. Plaintiff was not required to prove that the assault and robbery would not have taken place had defendant supplied additional protection. It is axiomatic that better policing would have acted as a deterrent. Cf. Crammer v. Willston Operating Co., Inc., 19 N.J. Super. 489 (App. Div. 1952)."
The Appellate Division called the project "a city within a city." The description may be apt in terms of population but in no other sense. The project is not physically isolated from the neighborhood. Each apartment house fronts on a public street and still another street bisects the development, four structures being north of it and six south. The bisecting street is closed to traffic, being reserved for play. In terms of access by the police force of the city, the apartment houses are not distinguishable from high-rise apartments owned by private developers. In fact a police headquarters is located nearby.
The Appellate Division held that notwithstanding defendant's public nature, its liability for negligence must be adjudged on the principles of law applicable to the private owner of property. It reached that conclusion both because of the "proprietary" nature of the operation as that term is used in this field and because the statute under which defendant was formed reveals a legislative intent that the local authorities be accountable on that basis. 70 N.J. Super., at pp. 250-253. Thus far we agree.
We cannot however agree that defendant has the duty to furnish police protection. That duty, we think, is the duty of government. Since the statute under which defendant was created does not impose such a duty upon it,*fn2 the question is
whether that obligation can be found upon the principles applicable to the private owner of residential property.
We note at once that no statute empowers the owner of residential property to have a police force. Such authority has been granted to private enterprise in very limited situations.*fn3 Hence the owner of residential property could "furnish" police protection only if the municipality agreed to assign special policemen at the owner's expense, a practice which seemingly rests upon N.J.S.A. 40:47-19, which authorizes the governing body to appoint special policemen who shall not be part of the police force but who shall be under "the supervision and direction of the chief of police." See McAndrew v. Mularchuk, 33 N.J. 172 (1960); Caronia v. Civil Service Commission, 6 N.J. Super. 275, 280 (App. Div. 1950). And, from the wording of the statute, it would appear
that a policeman so assigned would not be subject to the order of the owner of property but rather would be under "the supervision and direction of the chief of police."
Thus, defendant was here held liable for not furnishing a type of protection it cannot provide on its own decision. Of this, more later.
The question whether a private party must provide protection for another is not solved merely by recourse to "forseeability." Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide "police" protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.
The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.
We are not aware of any decision which even approaches the result reached below. A brief review of the cases to which our attention has been drawn reveals they involved different risks or different relationships.
Common carriers have a duty to use a high degree of care to protect the persons of their patrons. In Exton v. Central R.R. Co., 62 N.J.L. 7 (Sup. Ct. 1898), affirmed o.b. 63 N.J.L. 356 (E. & A. 1899), the railroad knew of prior scuffling between cabmen for business, but nonetheless did not eject or otherwise deal with them. Plaintiff was injured
when the scuffling recurred. In Skillen v. West Jersey & Seashore R.R. Co., 96 N.J.L. 492 (E. & A. 1921), a passenger was injured by a "spitball." The record showed the conductor was aware of the antics of the schoolboys involved but did nothing to stop them. In Sandler v. Hudson & Manhattan R.R. Co., 8 N.J. Misc. 537, 151 A. 99 (Sup. Ct. 1930), affirmed 108 N.J.L. 203 (E. & A. 1931), a passenger was injured by the crush of the crowd and the issue was the sufficiency of guards to deal with that regular phenomenon of defendant's business. In Quigley v. Wilson Line of Massachusetts, 338 Mass. 125, 154 N.E. 2 d 77, 77 A.L.R. 2 d 499 (Sup. Jud. Ct. 1958), plaintiff, a passenger on a vessel, was injured by the unprovoked assault of a drunken passenger. Defendant maintained a bar, and its guards, knowing the assailant had already been in another fracas that evening, failed to restrain him or to keep an eye on him. In Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E. 2 d 497 (Sup. Ct. 1943), a young lady was attacked while waiting for a train on an unattended railroad platform at an early morning hour. The evidence showed the railroad knew that hoboes and tramps regularly loitered there and in the warming house thereon, and despite plaintiff's prior complaints, the railroad did nothing to clear the place of those characters or to protect its patrons against them. The court held the evidence sufficed to show a breach of duty (found to be a duty of ordinary care, rather than the higher duty owed by a carrier to a passenger). In each of these cases the hazard was specific, localized, and known to the defendant.
Another group of cases relates to the duty of the proprietor of a business operation open to the public to protect his guest from the predictable behavior of other guests. In Williams v. Essex Amusement Corp., 133 N.J.L. 218 (Sup. Ct. 1945), plaintiff, attending a crowded theatre, was unintentionally floored by a running boy. There was no usher present. In Reilly v. 180 Club, Inc., 14 N.J. Super. 420 (App. Div. 1951), two patrons at a bar engaged in "needling" which led to a scuffle in which plaintiff, a nonparticipant, was pushed
from his stool. The bartender failed to intervene despite portending events of which he was aware. In Crammer v. Willston Operating Co., Inc., 19 N.J. Super. 489 (App. Div. 1952), a patron at a skating rink unwittingly upset two young ladies. The question was whether there were sufficient ushers to protect patrons from skating which was hazardous in view of the crowd. In Becker v. City of Newark, 72 N.J. Super. 355 (App. Div. 1962), defendant's employee, contrary to rules and regulations, permitted a five-year-old to ride a tricycle in the locker room. The lad unintentionally hit a bather. In Lee v. National League Baseball Club of Milwaukee, 4 Wis. 2 d 168, 89 N.W. 2 d 811 (Sup. Ct. 1958), an elderly lady was injured when a number of copatrons at a ball park scrambled for a foul ball. Defendant had provided ushers, with instructions to order patrons to keep their seats in such situations, and the court found ushers had theretofore proved effective in that regard. On this occasion, however, the usher had left his post to prepare to assume post-game duties on the playing field. Of course, none of those cases would support the proposition that proprietors of such places must provide police protection against an intruding thug. Cf. Genovay v. Fox, 50 N.J. Super. 538 (App. Div. 1958), reversed on other grounds, 29 N.J. 436 (1959).
In the following cases a triable issue was found with respect to criminal assaults but in each the basis of liability is foreign to the case before us. In Lillie v. Thompson, Trustee, &c., 332 U.S. 459, 68 S. Ct. 140, 92 L. Ed. 73 (1947), the defendant railroad assigned its female employee to serve as a telephone operator from 11:30 P.M. to 7:30 A.M. in a one-room structure in a remote place in a railroad yard. The area was unlighted. She was to give messages to railroad employees who came to the structure, but no means were provided whereby she could tell who was at the locked door before opening it. The railroad knew the yard was frequented by "dangerous characters." In holding the facts sufficient, the court referred to section 302 of Restatement of Torts, comment n, thus indicating the theme to be that defendant created
"a situation which affords an opportunity or temptation to third persons to commit more serious forms of misconduct." Also basic was the duty of an employer to provide a safe place of work. In McLeod v. Grant County School Dist. No. 128, 42 Wash. 2 d 316, 255 P. 2 d 360 (Sup. Ct. 1953), the court, by a vote of 5 to 4, sustained a complaint in which it was alleged that a 12-year-old female student was carried by some male students into an unlocked dark room near the gymnasium and there raped. The majority placed its holding upon the principle of section 320 of the Restatement of Torts, that "One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty of exercising reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other" under conditions there stated. In short, the child was compelled to attend school, and the school district had a duty to protect her from fellow students. In Wallace v. DerOhanian, 199 Cal. App. 2 d 141, 18 Cal. Rptr. 892 (1962), a child was a guest at a children's camp. She was quartered at night in a house unattended by any employee. She was ravished by an intruder. The court noted that defendant knew migrant laborers were working nearby and that defendant at times had employed a parolee. The court held defendant had failed to exercise "due care for the safety of a child left in her custody" (p. 894).
Finally we come to a group of cases dealing with responsibility of the owner of housing projects. In Da Rocha v. New York City Housing Authority, 109 N.Y.S. 2 d 263 (Sup. Ct. 1951), affirmed 282 App. Div. 728, 122 N.Y.S. 2 d 397 (2 d Dept. 1953), defendant, in a play area it provided, turned on a water outlet for the refreshment of children on a hot day, thereby attracting a large number who ran in and out of the spray. A child was struck by a cyclist, riding in violation of ...