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Clohesy v. Food Circus Supermarkets

August 9, 1996


On appeal from Superior Court, Law Division, Monmouth County.

As Amended September 27, 1996. As Corrected October 7, 1996.

Before Judges King, Landau and Humphreys.

The opinion of the court was delivered by: Landau

The opinion of the court was delivered by


Plaintiff Mary Clohesy, Executrix of the Estate of Kathleen Dalton, appeals from a grant of summary judgment in favor of defendant Food Circus Supermarkets, Inc., t/a Twin County Grocers or Foodtown of Red Bank (Foodtown) dismissing her complaint that alleged Foodtown's negligent failure to provide adequate security in its parking lot for the decedent, Kathleen Dalton.

Mrs. Dalton, who was seventy-nine years of age, had been shopping at the Foodtown supermarket in Red Bank during the early afternoon of July 15, 1991. As she loaded groceries into her car, an assailant, Philip Reardon, Jr., forced her into the car, covered her nose and mouth with duct tape, and drove away. Mrs. Dalton died of asphyxiation. Reardon was apprehended and later convicted of kidnapping, robbery, theft, and murder.

Plaintiff sued Foodtown and Reardon. Depositions were taken of Barry Elliott, Manager of Retail Loss Prevention for Twin County Grocers, and Philip J. Scaduto, Director of Loss Prevention for Food Circus Supermarkets.

Elliott testified that his duties primarily focused upon the prevention of illegal activities inside of New Jersey and New York Foodtown stores. He had no recollection of any request to evaluate parking lot security at the Foodtown of Red Bank or the liquor store located on the premises. Elliott admitted, however, that security was hired during a period when construction materials were being stored in the Foodtown of Red Bank lot.

Scaduto was in charge of security for stores operated by Food Circus Supermarkets. Although he was responsible for parking lot problems, in his experience these consisted of little more than "shopping carts banging, carriages, basically people looking for money on dents," and "proper lighting, potholes, things like that." He did not recall any criminal activity in the parking lot of any store operated by Food Circus prior to the abduction of Mrs. Dalton.

Plaintiff's expert, William A. Torphy, provided a report evaluating security at the Foodtown of Red Bank. Torphy concluded that Foodtown deviated from industry standards of care by failing to provide adequate security, and that this failure caused the death of Mrs. Dalton. He noted the presence of a liquor store on the premises, which attracted persons to drink and "hang around." Torphy also asserted that a Mobil gas station on the edge of the parking lot served as "a gathering place for loiterers" and earned frequent attention from the police.

The Torphy report observed that the parking lot faced a side of the supermarket that had no windows, making it impossible for employees inside to scan the lot for problems. Foodtown employed no security guards to monitor the parking lot. Torphy opined that the Foodtown was "located in an area where criminal conduct could reasonably be anticipated." He concluded that Foodtown's poor design and lack of security deviated from industry standards and contributed to Mrs. Dalton's death.

Police reports contained in the record indicate that sixty criminal incidents had been reported in or around the Foodtown store between January 1989 and the date of the Dalton incident, a two and one-half year period. These included thirty shopliftings, twelve thefts, four DWI offenses, four disorderly persons offenses, four assaults, three occasions on which customers misplaced property, one instance of criminal mischief, one charge of trespassing, and one offense of possession of CDS. There were no robberies or attempted robberies.

None of the assaults bore any resemblance to the attack upon Mrs. Dalton. Two involved store employees who confronted alleged shoplifters or thieves. In a third instance, a man assaulted a police officer who had arrested his wife for disorderly conduct. The remaining assault involved a fight arising out of a car accident in the parking lot.

Foodtown moved for summary judgment. After hearing argument, the Judge granted Foodtown's motion on April 13, 1995, citing plaintiff's failure to allege prior similar incidents necessary to establish foreseeability. The motion Judge distinguished plaintiff's case from Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982), in which seven muggings in the parking lot were deemed to render foreseeable the likelihood of further criminal attacks, thus generating a duty to provide reasonable protective measures.

Plaintiff moved for reconsideration, but advanced no new arguments or proof. On May 26, 1995, the Judge denied the motion for reconsideration, again stressing that Butler required prior similar incidents as a prerequisite to imposition of an actionable duty.

Plaintiff voluntarily dismissed the complaint as to Reardon, rendering final and appealable the summary judgment granted to Foodtown. On appeal, plaintiff argues that the Judge erred in granting summary judgment solely because of the absence of prior similar offenses.

We affirm. The evidence contained in the record before us is legally insufficient to render foreseeable the likelihood of a serious criminal attack occurring in the Foodtown parking lot, and therefore is insufficient to create a duty to provide special security for the Foodtown lot. Accordingly, we conclude that Foodtown owed no duty to plaintiff's decedent to provide security or to post warnings in the parking lot, and that Foodtown is entitled to judgment as a matter of law.

Unlike the situation in Butler, there were no prior incidents of a nature that would render foreseeable the carjacking, assault, kidnapping and fatal gagging of a patron, or, indeed, any of those offenses. To the extent that a general theory of negligence was asserted, thus including a failure to warn, *fn1 we believe that any duty to warn patrons of the possibility of parking lot attacks would have been, at most, coextensive with the existence of a duty to provide security in the lot.

We do not deem the expert report, nor the factual basis upon which it was rendered, sufficient to create a factual issue. "Expert testimony is useful to fact finders in determining whether a standard of conduct has been violated, but only after a legal duty has been found to exist. The question of whether a duty exists is a matter of law to be decided by the Judge alone in the context of the circumstances of each case." Burroughs v. City of Atlantic City, 234 N.J. Super. 208, 220-21, 560 A.2d 725 (App. Div.), certif. denied, 117 N.J. 647 (1989). "The foreseeability of harm is a significant consideration in the determination of a duty to exercise reasonable care." Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996). "'It is a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate.'" Id. at 572-73 (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, 135 N.J. 182, 194, 638 A.2d 1288 (1994)).

Among the factors properly considered in this case are the broad daylight time of the incident (rendering adequate illumination a non-issue; compare Picco v. Fords Diner, 113 N.J. Super. 465, 274 A.2d 301 (App. Div. 1971)) and the undisputed evidence that there had been no prior criminal attacks against patrons in the Foodtown lot.

In Butler, (supra) , the Court recognized, as we do, that

the historical classifications of the degrees of care owing to visitors upon land are undergoing gradual change in the law in favor of a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others.

[Butler, (supra) , 89 N.J. at 277.]

Also recognized was the duty of the proprietor of premises to which the public is invited for business purposes to provide a reasonably safe place to do that which is within the scope of the invitation. Id. at 275. Due care under all the circumstances is the proper measuring rod, and the question of foreseeability is that of the existence of an unreasonable risk or likelihood of harm. Id. at 276.

In Butler, however, seven muggings had occurred on the Acme premises within one year's time, muggings of which the victim was unaware. Id. at 274. No warnings had been posted to advise patrons of the possibility of attack. Id. at 275. One guard attended to store security and to the parking lot. Id. at 274. The Court recognized that foreseeability of criminal conduct was "apparent" and refused to allocate sole responsibility for security to government with its attendant police power. Id. at 277, 280.

Neither the Supreme Court nor the Legislature has yet imposed upon all parking lot operators or stores with parking areas an absolute duty to maintain constant police-type protection of those areas. It may be arguable that courts should take notice of an alarming trend in "carjackings," an offense largely unknown until recent years. However, such offenses can easily occur in any parking lot, large or small, or indeed on any street or highway. Police protection against such widespread criminal incidents is one of the primary duties for which government exists. The Supreme Court made clear that "we do not intend an absolute obligation to prevent all crime." Id. at 279. Rather, the Court imposed a duty upon Acme to provide adequate security and to warn patrons of the danger, based upon foreseeability generated by the known, repeated history of attacks in its parking lot. Accord Genovay v. Fox, 50 N.J. Super. 538, 554-55, 143 A.2d 229 (App. Div. 1958), rev'd on other grounds, 29 N.J. 436, 149 A.2d 212 (1959).

While we believe that certain showings of fact, for example repeated carjackings or assaults upon persons in the immediate vicinity, or an extraordinary increase of such incidents in the community, see id. at 555, might well be sufficient to create a duty, *fn2 that threshold has not here been crossed.

We are mindful of the view of our Dissenting colleague that "substantial criminal activity had occurred in and around Foodtown" and that, in consequence, the question of Foodtown's duty to take reasonable security precautions for plaintiff should have been submitted to the jury. Our review of the record satisfies us that the Dissent has overstated the nature and extent of the various incidents in and near the market, none of which hinted at an unusual potential for threat to the physical safety of patrons. This was not Dodge City.

Of greater concern is the Dissent's apparent desire to send to a jury almost every case in which an allegation is made that a store has failed to provide adequate security protection for its business invitees, free of the judicial hand in measuring foreseeability and in determining existence of a duty.

Contrary to the suggestion of the Dissent, we do not interpret Butler to have created an absolute prior similar incidents rule, although the motion Judge may have done so. Neither have we created such a rule in this case. We read Butler to have made the existence of prior similar incidents a highly significant, but not exclusive, factor for the court to consider in making its critical foreseeability/duty determination. In this respect, Butler is consistent with the most recent opinion of the California Supreme Court on this subject, Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666, 863 P.2d 207 (Cal. 1993).

The Dissent relies heavily on the reasoning of that court in an earlier decision, Isaacs v. Huntington Memorial Hospital, 38 Cal. 3d 112, 695 P.2d 653, 211 Cal. Rptr. 356 (Cal. 1985), which rejected a strict rule of law limiting a business premises operator's foreseeability of criminal acts only to cases in which prior similar acts had occurred on the same premises. Isaacs rejected this strict rule in favor of a "totality of circumstances" approach. Id. at 659-61. In Ann M., however, the breadth of the Isaacs opinion was dramatically reconsidered and modified. *fn3 While not adopting a strict prior similar incidents rule, the California Supreme Court recognized the difficulty in ascertaining what degree of security is adequate to constitute effective deterrence, and concluded "that a high degree of foreseeability is required in order to find that the scope of a [shopping center owner's] duty of care includes the hiring of security guards." Ann M., (supra) , 863 P.2d at 215. Thus, that court said, "the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the ... premises." Ibid.

Much as we have done, the California court left open the possibility that, even absent prior similar incidents, other circumstances might create the degree of foreseeability sufficient to trigger a duty to provide security guards. Examples given were immediate proximity to a similar business establishment which has experienced violent crime on its premises, or evidence that a particular type of commercial property has become inherently subject to violent crime. Id. at 215 n.7, 216 n.8. Absent legislative action, we believe that the Ann M. analysis is entirely consistent with the business proprietor's general duty to guard its business invitees against reasonably foreseeable harm. *fn4

We believe that the Dissent has confused the issue of duty analysis, and wrongly seeks to surrender for a jury's fact-finding the legal determination of foreseeability in the context of ...

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