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Bauer v. Harleigh Cemetery Co.

Decided: March 23, 1994.


Greene, J.s.c.



This opinion is a refinement of the court's earlier orally recorded opinion granting defendant Cemetery's R. 4:40 motion for judgment at the Conclusion of all the evidence and determining that a nonprofit Title 8A cemetery is not liable for damages to individual mausoleums or grave sites caused by vandals.

The complaint primarily charged the defendant cemetery with negligence resulting in physical damage to certain burial sites, caused by unknown vandals, criminals or trespassers.

It is conceded that the burial plot in question, consisting of a private family mausoleum and approximately twenty below ground burial sites, marked by grave stones, bearing bronze plaques, had been damaged by unknown parties. The mausoleum on one occasion had been broken into and a number of the bronze plaques had been removed from the grave stones. Plaintiffs claimed a duty owed to them by the cemetery to take precautions and protect the sites from violation by third parties.

The evidence establishes that the cemetery, a nonprofit corporation under N.J.S.A. 8A:1-1, consists of approximately 110 acres, situate in the City and County of Camden. It is not bounded by any residential property; its boundaries are the Cooper River, New Jersey State Highway Route 130 (four lane), Haddon Avenue and Vesper Boulevard. On the other side of Vesper is Our Lady of Lourdes Hospital; perhaps at the extreme northerly end of Vesper are a few row houses across from the Cemetery.

There are 40,000 burials in the cemetery and it is open daily from 7:30 A.M. to 4:30 P.M. The great majority of the burials are underground. There are, however, mausoleums, public and private and niches. The cemetery is bounded by a metal spike fence five feet in height. During the daytime, Camden City police will occasionally ride through the cemetery as part of routine patrolling.

In addition to the testimony relative to the use of the cemetery for burial sites, it was established that, in the daytime, use of the cemetery was made by hospital personnel on break and residents of Camden, fishing some ponds and occasional picnicking. It is in this environment, inferentially at night, that the damage or loss occurred, and for which plaintiffs seek to hold the cemetery responsible.

This is a case of first impression in this State. Coleman v. St. Michael's Protestant Episcopal Church, 170 A.D. 658, 155 N.Y. Supp. 1036 (App. Div. 1915), held that there was neither a contractual, statutory nor implied duty on a cemetery to protect against theft of bodies by third parties. The only rationale was that to do so would cast an unreasonable burden on the cemetery, compared to what was paid for the grave, which rationale was stated without further elaboration.

New Jersey law does permit findings of negligence against cemeteries but based upon direct negligent maintenance of the cemetery or respondeat superior, i.e. the tortious conduct of employees. See Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 335, 266 A.2d 569 (1970).

New Jersey law will generally permit liability for criminal acts of third parties to be placed upon others predicated upon certain concepts of foreseeability but those impositions are also subject to public policy and to concepts of fairness. Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 186 A.2d 291 (1962) is frequently cited for those factors that must be considered in determining the existence of duty and expanding liability. e.g. See Caputzal v. The Lindsay Co., 48 N.J. 69, 75, 222 A.2d 513 (1966); Frame v. Kothari, Concurring opinion 115 N.J. 638, 651 (1989); Contey v. N.J. Bell Telephone, 136 N.J. 582, 643 A.2d 1005 (1994). A "premises liability" case, Goldberg states, relative to the duty of a private party to provide protection for another:

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.

[Goldberg v. Housing Auth. of Newark, supra 38 N.J. at 583 (1962)]

The application of Goldberg to the facts of this case is what impels the determination that the cemetery did not owe plaintiff any duty to ...

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