On certification to the Superior Court, Appellate Division, whose opinion is reported at 282 N.J. Super. 513 (1995).
The opinion of the Court was delivered by Pollock, J. Chief Justice Poritz and Justices Garibaldi and Coleman join in Justice Pollock's opinion. Justice Stein filed a separate Dissenting opinion in which Justices Handler and O'hern join.
The opinion of the court was delivered by: Pollock
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Ireneusz Kuzmicz, et al. v. Ivy Hill Park Apartments, Inc., et al. (A-5-96)
Argued March 11, 1996 -- Decided February 20, 1997
POLLOCK, J., writing for a majority of the Court.
In this appeal, the Court addresses the issue of whether a landlord has a duty to protect its tenant by mending a bordering fence or warning him of the risk of assault on property adjacent to, but not owned by, the landlord.
Ireneusz Kuzmicz, a tenant of Ivy Hill Park Apartments, Inc. (Ivy Hill), sustained serious injuries when he was assaulted on a vacant lot owned by Newark Board of Education (the Board). The lot was located between the apartment complex and a grocery store owned by Great Atlantic & Pacific Tea Company, Inc. (the A&P). Several years before the assault, Ivy Hill had erected a chain-link fence to separate its property from the Board's lot. Over the course of the years, Ivy Hill had repaired the fence three or four times. However, to gain access to the lot, which provided a shortcut to the A&P, the tenants or someone else had cut an opening wide enough for two people to walk side-by-side through the fence. Although the apartment complex abutted a lighted sidewalk leading to the A&P, Ivy Hill tenants frequently elected to cut the walk short by walking through the darkened path.
Unbeknownst to Kuzmicz, the lot had been the site of several assaults in the years preceding the assault on him. The administrator of the apartments, who was also the rental agent and manager for the adjacent shopping plaza in which the A&P was located, was aware that Ivy Hill tenants and employees used the path to go to the shopping plaza. On behalf of Ivy Hill, he had written to the mayor of Newark and the superintendent of schools on two separate occasions, complaining of the Board's failure to maintain the lot, of criminal activity on it, and of vandalism to Ivy Hill's fence. Several months after the administrator's second letter, Kuzmicz was assaulted while walking along the path through the Board's lot after shopping at the A&P.
Kuzmicz sued Ivy Hill, the Board and the City of Newark. Ivy Hill filed a third-party action for contribution against the A&P. All defendants moved for summary judgment. Ivy Hill contended that it owed no duty to Kuzmicz in respect of criminal activity on the Board's property as a matter of law. The trial court denied Ivy Hill's motion, determining that issues of material fact were presented because a jury reasonably could conclude that Ivy Hill's failure to maintain its fence constituted a breach of its duty to tenants to provide a safe exit from its property, and that Ivy Hill's negligence was a proximate cause of Kuzmicz's injuries. The court also denied the Board's motion for summary judgment, but granted the City's motion. Lastly, the court granted A&P's motion, finding that there was no viable theory of liability that would hold A&P responsible for criminal acts committed upon property not owned by it and over which it exercised no control.
Following trial, a jury awarded Kuzmicz $175,000 and determined that Ivy Hill was fifty percent negligent, the Board was thirty percent negligent, and Kuzmicz was twenty percent negligent. Ivy Hill moved for judgment notwithstanding the verdict, or, in the alternative, a new trial. Its motion was denied and Ivy Hill appealed. The Appellate Division affirmed.
The Supreme Court granted Ivy Hill's petition for certification.
HELD: Under the circumstances of this case, Ivy Hill did not owe a duty to its tenant by mending its fence or warning of the possibility of criminal assault on property owned by the Board.
1. The determination of the existence of a duty of a landowner for both off-premises and on-premises liability is a fact-sensitive one and one which considers both fairness and public policy. (pp. 6-9)
2. Landlords and business owners should be liable for foreseeable injuries that occur on their premises because they are in the best position to control the risk of harm. (pp. 9-10)
3. Although a landowner is generally not liable for off-premises injuries merely because those injuries are foreseeable, a landowner's liability may extend beyond the premises for activities that directly benefit the landowner. (pp. 10-12)
4. A landowner does not owe a duty to protect people from criminal activity on adjacent premises that the landowner does not own or control or from which the landowner does not realize a significant commercial benefit. (pp. 12-14)
5. Although imposing a duty on a landlord to pay for injuries sustained in a criminal attack on another's property helps to compensate the tenant, it also provides a disincentive to own rental property in urban areas. (pp. 14-15)
6. Foreseeability does not predetermine the issue of duty. (pp. 15-16)
7. Although it would be unfair to hold Ivy Hill liable to Kuzmicz for the failure to warn him of the possibility of an assault on the Board's property or for the failure to take greater measures to mend the fence, the recognition of a landlord's duty to a tenant for off-premises injuries under different facts is not foreclosed. (p. 17)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for the entry of a judgment in favor of Ivy Hill.
JUSTICE STEIN filed a separate Dissenting opinion, in which JUSTICES HANDLER and O'HERN join. Justice Stein viewed the Court's holding as a repudiation of a substantial body of decisional law that predicates the imposition of a duty on the relationship of the parties, foreseeability of the risk to be avoided, and the opportunity to exercise due care. Furthermore, he considered the Majority to have usurped the jury's function by virtue of the substitution of its own factual findings.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI and COLEMAN join in JUSTICE POLLOCK'S opinion. JUSTICE STEIN filed a separate Dissenting opinion in which JUSTICES HANDLER and O'HERN join.
The opinion of the Court was delivered by
Plaintiff Ireneusz Kuzmicz was a tenant of defendant Ivy Hill Park Apartments, Inc. (Ivy Hill), which owns an apartment complex in Newark. On the night of December 8, 1989, Kuzmicz was assaulted on a vacant lot owned by defendant Newark Board of Education (the Board). The lot is located between the complex and a grocery store owned by defendant Great Atlantic & Pacific Tea Company, Inc. (the A & P). The issue is whether under the circumstances of this case Ivy Hill owed Kuzmicz a duty to protect him by mending a bordering fence or warning him of the risk of assault on the Board's property.
The jury awarded Kuzmicz $175,000, apportioning liability: Kuzmicz twenty percent; the Board thirty percent; and Ivy Hill fifty percent. The Appellate Division affirmed. 282 N.J. Super. 513, 660 A.2d 1208(1995). We granted Ivy Hill's petition for certification, 143 N.J. 322 (1995), and now reverse.
Seven to eight thousand people reside in the Ivy Hill apartment complex. Kuzmicz became a tenant in November 1986, approximately three years before the assault.
Adjacent to the Ivy Hill apartments is a seven-acre vacant lot owned by the Board. The lot was strewn with debris and overgrown with brush and trees. The lot was also the scene of occasional drug activity and other criminal conduct.
Ivy Hill built an eight foot high chain-link fence to separate its property from the lot. Over the course of several years, Ivy Hill repaired the fence three or four times. In 1987, the Board likewise repaired the fence.
On the opposite side of the lot, some 250 feet away, is a shopping plaza in which the A & P was a tenant. Ivy Hill did not own an interest in the plaza and derived no discernible economic benefit from it.
At approximately 7:30 p.m. on December 8, 1989, Kuzmicz and a friend were returning from the A & P to Kuzmicz's apartment. A lighted sidewalk runs from the shopping plaza to the apartment complex. Instead of using the sidewalk, they took a shortcut along a winding path through the unlighted and wooded lot. By cutting across the lot, tenants could reduce the walking time from ten to thirteen minutes to seven to eight minutes, a savings of three to six minutes. After Kuzmicz and his friend had crossed two thirds of the lot, assailants stabbed Kuzmicz, seriously injuring him.
Kuzmicz had used the path throughout his three-year tenancy. Starting the week after moving into his apartment, he walked on the path two or three times a week, sometimes at night. To gain access to the path, the tenants or someone else had cut an opening wide enough for two people to walk side-by-side through the fence. Kuzmicz testified that he did not know who owned the lot or whether anyone had been harmed while using the path. Furthermore, he stated that no one had ever told him not to use the path. He knew, however, that in 1988, the opening had been closed by the installation of a new section of chain-link fence.
To patrol the apartment complex, Ivy Hill employed a security force, which included Donald Karas, a Newark police officer. Karas had told some residents to use the lighted sidewalks, instead of the darkened path.
Klaus Mangold, the administrator of the apartments, was aware that tenants and employees used the path to go to the shopping plaza, which also employed Mangold as a rental agent and manager. On behalf of Ivy Hill, Mangold wrote to the mayor of Newark and the superintendent of schools, complaining of the Board's failure to maintain the lot, of criminal activity on it, and of vandalism to Ivy Hill's fence. In a letter of October 24, 1985, Mangold wrote, in part:
We are deeply disturbed by the condition of the vacant lot owned by the Board of Education of the City of Newark. This lot is between our back parking lot and the rear of the Ivy Plaza Shopping Center. Our fencing between the two properties is constantly vandalized by persons wishing to take a shortcut through the Board's property to the shopping center.
The lot is overgrown with weeds and brush, is full of garbage, has no lighting at night, is not patrolled by the police and provides shelter for vermin of all types. The path through the lot is an extremely dangerous area: there has been a murder and dozens of muggings, including three of our employees, as well as some of our tenants and visitors. The situation has grown progressively worse in the past week and shows no sign of being corrected.
He also suggested that if Newark could not patrol the property, the city should convey it to Ivy Hill. In a letter of May 19, 1989, Mangold again complained of the lot's condition, repeated Ivy Hill's interest in acquiring it, and expressed concern over the Board's failure to maintain and patrol the lot. Twice between 1985 and the date of the attack, Newark notified the Board of its failure to remove debris and cut the grass.
In the Law Division, Ivy Hill and the A & P each moved for summary judgment under Rule 4:46. One Judge denied Ivy Hill's motion, but another Judge granted the A & P's motion. In granting the A & P's motion, the Judge reasoned that the A & P did not have a duty of care that extended beyond the store to the adjacent lot. The Law Division also granted summary judgment for Newark, but denied the Board's motion.
At trial, the court denied Ivy Hill's motion for an involuntary dismissal at the close of Kuzmicz's case. See R. 4:37-2. After the jury returned its verdict, the court denied Ivy Hill's motion for a judgment notwithstanding the verdict. See R. 4:40-2. The Board did not appeal.
The Appellate Division affirmed, holding that Ivy Hill had a duty of care to protect tenants from criminal activity on the Board's lot by warning them of that activity or by closing the gap in the fence. 282 N.J. Super. at 522. The court recognized that it was making new law. Id. at 521. Noting that Ivy Hill originally had "designed a gateway without a gate into the fence it erected," the court stated that "the jury could have concluded that tenants justifiably viewed the open gateway as an invitation to use the path to access the Shopping Center." Ibid. This Conclusion, coupled with Mangold's dual responsibilities, allowed the jury further to "conclude that Ivy Hill constructively appropriated the path to facilitate access to the Shopping Center." Id. at 522. According to the court, from Mangold's dual employment, the jury could have inferred that Mangold had "an economic interest" in promoting and providing a shortcut to the plaza. Id. at 522-23. Thus, the jury could have found that Ivy Hill had a duty to warn its tenants or close the gap by installing a "sturdy gate." Id. at 522.
The Appellate Division also affirmed the grant of the A & P's motion for summary judgment, distinguishing the A & P from Ivy Hill. The court reasoned that as a tenant of the shopping plaza, the A & P did not have a duty to maintain a fence, id. at 523, and that the evidence did not suffice to show that A & P knew of the criminal activity on the Board's lot. Id. at 523-24.
Against this background, we consider whether Ivy Hill owed Kuzmicz a duty to protect him from the risk of assault on the Board's property. Our analysis begins with the fact that Kuzmicz was injured on land that Ivy Hill did not own or control. The question is whether Ivy Hill owed Kuzmicz a duty to protect him by warning him of the risk of ...