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Mulraney v. Auletto's Catering

August 22, 1996


On appeal from Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication August 22, 1996. As Corrected October 8, 1996.

Before Judges Long and Skillman. The opinion of the court was delivered Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered


This is a wrongful death action. The decedent Florence Mulraney was an invitee at a "Bridal Fair" held by defendant Auletto's Catering (Auletto's) at its premises in Deptford Township on the evening of January 13, 1992. Auletto's contracted with defendant National Valet Parking Service (Valet Parking) to provide valet parking for persons attending this function. *fn1 Upon arriving at the fair with her daughter, decedent observed a line of people waiting for the valet parking service, so she decided to park her own car in an exterior part of the parking lot. However, after the decedent parked, one of Valet Parking's employees told her that the parking lot was reserved for valet parking and that she would have to move her car to another location. The decedent then drove towards an adjoining parking lot also owned by Auletto's but found the entrance blocked by a car. At this point, the decedent, seeing other cars parking in an area located across an adjoining county highway, followed them, parked her car, and attended the bridal fair. As the decedent was crossing the highway to return to her car, she was struck by a passing vehicle and killed.

This suit was brought by the decedent's husband, Andrew Mulraney, as administrator of her estate and individually, and by decedent's daughter, Julianne Mulraney Messina, who observed the accident and her mother's death. Plaintiffs allege that defendants knew or should have known that persons attending functions at Auletto's, including the Bridal Fair, would park in the area across the county highway. Plaintiffs further allege that defendants knew that crossing the county highway to attend functions at Auletto's was dangerous but that they had "failed to appropriately warn oncoming traffic of pedestrian traffic and were otherwise negligent in the protection of the safety of attendees at the Bridal Fair."

Auletto's moved for summary judgment on the ground that it did not own or control the area where the decedent parked and consequently did not have a duty to provide a safe means of passage to that area. In opposing the motion, plaintiffs relied upon the deposition of Stephen Moylan, a Deptford Township police officer who coordinated the assignment of special duty officers for private functions, including functions at Auletto's. Officer Moylan testified that Auletto's patrons used the area across the county highway for parking on some occasions. Moylan further testified that he had expressed concern to Auletto's about "the safety of the people [who parked] across the street and [had to cross] the road." Moylan also indicated that the police department had suggested to Auletto's that it purchase signs to place on the side of the county highway in order to warn motorists to "slow down or become more alert" as they approached the area where pedestrians might be crossing. Auletto's accepted this suggestion and purchased the signs, which were subsequently used on some occasions. However, on the night the decedent was killed, Auletto's did not hire special duty officers or take any other steps to protect persons who parked on the opposite side of the highway to attend the Bridal Fair.

The trial court granted Auletto's motion for summary judgment, concluding that a commercial establishment has no duty to provide safe passage across a highway to an area owned by a third party, even if it is aware that its patrons use that area for parking. The court subsequently granted Valet Service's motion for summary judgment on the same basis.

Plaintiffs appeal from summary judgments in favor of Auletto's and Valet Services. *fn2 We reverse.

"The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982). Although a business proprietor's duty of care is generally expressed in terms of the duty that an owner or occupier of land owes to persons who come onto the land, see, e.g., Bozza v. Vornado, Inc., 42 N.J. 355, 359-60, 200 A.2d 777 (1964), the duty extends beyond a business simply safeguarding its customers from dangerous physical conditions on its property. Thus, we have held that the duty extends to a retail store protecting its customers from another customer's dog which was tied to a pole near the store entrance, Nakhla v. Singer-Shoprite, Inc., 205 N.J. Super. 184, 500 A.2d 411 (App. Div. 1985), certif. denied, 102 N.J. 399 (1986), and to a bar protecting its patrons from physical assault by other patrons in its parking lot, Dubak v. Burdette Tomlin Memorial Hosp., 233 N.J. Super. 441, 458-59, 559 A.2d 424 (App. Div.), certif. denied, 117 N.J. 48 (1989), and our Supreme Court has held that the duty extends to a supermarket protecting its customers from robberies in its parking lot, Butler v. Acme Mkts., Inc., (supra) . Most pertinent to this appeal, we have held that this duty extends to a business proprietor providing reasonably safe passage for patrons who must cross a highway to reach its parking lot. Warrington v. Bird, 204 N.J. Super. 611, 617-18, 499 A.2d 1026 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986). In all these cases, the business proprietor's alleged liability was predicated upon negligence in the conduct of its business rather than a dangerous physical condition of its premises: in Nakhla, the failure to prevent customers from leaving their dogs near the entrance to the store; in Dubak, the failure to summon the police when a disturbance occurred in the parking lot; in Butler, the failure to provide sufficient private security protection or to warn customers of the danger of criminal attack; and in Warrington, the failure to provide any illumination in the area used by customers to cross the highway or to provide signs to warn motorists or patrons of the danger of pedestrian traffic across the roadway. Therefore, these cases are all illustrations of the Court's observation in Butler 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." 89 N.J. at 277.

This evolution in the law was clearly recognized in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438, 625 A.2d 1110 (1993), where the Court, in addressing whether a real estate broker owes a duty of care to potential buyers who are shown a home in an open house tour, directly questioned the applicability of the common law doctrine of premises liability to determine the scope of a business' duty of care towards it customers:

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but ... whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just.

The Court concluded that instead of tort liability turning on the common law methodology of premises liability, the determination "whether a person owes a duty of reasonable care toward another [should turn] on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Id. at 439. "That inquiry involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Ibid. The Court also indicated that the determination of whether a party owes a duty of reasonable care towards another is "very fact-specific." Ibid. Applying the ...

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