Doan, J.s.c., Temporarily Assigned.
In this action plaintiff alleges, among other matters, that after shopping in defendants' supermarket and while she was about to enter her car in defendants' open and somewhat darkened parking lot, she was assaulted and raped by three unknown assailants.
Plaintiffs charge that defendants were under a duty to take measures to guard against such criminal activity by providing security measures such as adequate security guards, lights and fencing. Defendants move to dismiss this allegation as an issue in the case, contending that the same cannot support a cause of action.
In an earlier proceeding in this cause a similar motion by defendants for partial summary judgment was denied. The present application appears to represent a reargument of the same issue. A brief outline of the facts is indicated.
On January 2, 1975 plaintiff was an invitee at the Pathmark supermarket located at Paulison and Clifton Avenues in Clifton, New Jersey. The premises are owned by defendant Capri Hair Fashions of Willowbrook and leased to defendant Supermarkets General Corporation. Plaintiff alleges that at about 5 P.M. she was assaulted and raped in the parking lot immediately adjacent to the supermarket. She had just returned to her car from shopping and was loading her groceries when attacked by three unknown assailants. She alleges that immediately prior to this assault at least five people were attacked in defendants' parking lot, as reflected in police reports. Plaintiff also alleges that in light of these incidents defendants were under a duty to take security measures, such as providing adequate lighting, fencing, and security guards to protect customers against such criminal activities on the premises. Defendants concede that a cause of action is presented by the allegation of inadequate lighting, but reject plaintiff's contention that a duty to provide security guards, fencing or other security measures existed. Defendants did in fact provide security
guards on a limited nightly basis, but no guards were on duty at the time of this incident.
Although plaintiff urges that defendants' present motion should be barred by principles of collateral estoppel and estoppel by judgment, present consideration will assume that presentation of this motion is proper in order to reach the question of whether the court's previous determination of the existence of a duty should be modified in light of defendants' cumulative arguments.
In support of their motion to dismiss the allegations relating to their failure to take security measures defendants argue that "there is no legal duty upon the owner or lessee of premises to invitees to provide police protection or any other security measures, such as fencing, against criminal activity." Although they concede that there are exceptions to the general rule of "no duty" where special relationships and/or special circumstances exist, defendants deny that the present facts qualify as an exception. Besides arguing that defendants' knowledge of prior criminal assaults on the premises as well as their partial employment of security guards do indeed create an exception to the general "no duty" rule, plaintiff asserts the broader principle that "a proprietor of premises which are open to the public has a duty of reasonable care to see that those who enter the premises have a reasonably safe place to do that which is within the scope of their invitation," which can include taking reasonable security measures.
It is well established that the proprietor of premises to which the public is invited for business purposes owes a duty of reasonable care to see that its invitees have a reasonably safe place to do that which is within the scope of their invitation. Genovay v. Fox , 50 N.J. Super. 538, 549 (App. Div. 1958), rev'd on other grounds 29 N.J. 436 (1959); Crammer v. Willston Operating Co., Inc. , 19 N.J. Super. 489 [146 NJSuper Page 154] (App. Div. 1952). It is similarly well established that in the absence of a special relationship between the parties and/or special circumstances, there is no duty on a proprietor of business to protect its invitees against the criminal acts of third parties. Genovay v. Fox, supra; Annotation, "Private Person's Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person," 10 A.L.R. 3d 619. As to what constitutes "special relationships" and/or "special circumstances" sufficient to remove a given situation from the general "no duty" rule, various cases have been cited by the parties. Among the special relationships giving rise to the duty to take protective measures are common carrier/passenger and landlord/tenant. As to common carriers, see Exton v. Central R.R. Co. , 62 N.J.L. 7 (Sup. Ct. 1898), aff'd 63 N.J.L. 356 (E. & A. 1899) (holding that defendant owed a duty to take reasonable precautions to protect its passengers from injury caused by recurrent scuffling by cabmen in the walkway of its railroad depot); and Neering v. Illinois Central R.R. Co. , 383 Ill. 366, 50 N.E. 2d 497 (Sup. Ct. 1943), mandate conformed 321 Ill. App. 625, 53 N.E. 2d 271 (holding that defendant owed its patrons a duty to take precautions against the commission of unlawful acts by those it permitted to congregate about its station). As to landlord/tenant, see Braitman v. Overlook Terrace Corp. , 68 N.J. 368, (1975) (imposing liability for property loss by theft resulting from a landlord's failure, despite notice, to supply adequate locks for the protection of the tenants), and Kline v. 1500 Massachusetts Avenue Apartment Corp. , 141 U.S. App. D.C. 370, 439 F.2d 477 (D.C. Cir. (1970) (permitting recovery by a tenant for injuries suffered in an assault by an intruder attributable to inadequate security measures by the landlord); cf. Goldberg v. Newark Housing Auth. , 38 N.J. 578 (1962) (holding landlord housing authority owed no duty to provide police protection to a milkman assaulted on defendant's premises while making a delivery, evidence of prior criminal occurrences notwithstanding). [146 NJSuper Page 155] Consideration of whether "special circumstances" were presented so as to provide an exception to the general "no duty" rule has occurred in numerous cases involving the owner or operator of business premises and his invitee. In Genovay v. Fox, supra , 50 N.J. Super. 538, the Appellate Division denied recovery to an invitee who sustained injuries from an unknown assailant during a robbery of defendant's premises. Defendant, the proprietor of a late night tavern/bowling alley, was held to owe no duty to provide a security alarm system for the protection of his customers notwithstanding a general increase in crime in the area. Cornpropst v. Sloan , 528 S.W. 2d 188 (Tenn. Sup. Ct. 1975), denied recovery to a female shopper for injuries sustained from an unknown assailant in defendants' parking lot. Defendants owner and operator of a shopping center were held to owe no duty to protect invitees against sudden and unforeseeable criminal acts by unidentified third parties. A similar result was reached in Davis v. Allied Supermarkets Inc. , 547 P. 2d 963 (Okl. Sup. Ct. 1976). In Dwyer v. Erie Investment Co. , 138 N.J. Super. 93 (App. Div. 1975), recovery was denied to a subcontractor shot by an unknown trespasser while working on defendant's premises. In spite of defendant's notice of a hole permitting unauthorized access to the premises and a high area crime rate, no duty to protect against criminal acts by third parties was held to exist. Crammer v. Willston Operating Co., Inc. , 19 N.J. Super. 489 (App. Div. 1952), granted recovery to a roller skater who sustained injuries when knocked to the ground by another skater who rapidly skated between plaintiff and her skating partner. Since earlier incidents of "rowdyism" had occurred that night in the crowded rink, defendant proprietor was held to owe a duty to take security measures, including additional guards, for the protection of its invitees. Finally, in Picco v. Fords Diner, Inc. , 113 N.J. Super. 465 (App. Div. 1971), it was held that defendant diner owed a duty to its patrons to use reasonable means of protection against assaults in its parking lot by
unknown persons, by the use of night illumination to deter criminal activity. It is thus apparent from the cited cases that imposition of a duty to take reasonable precautions to protect invitees against the criminal acts of third parties has occurred in diverse factual settings, ...