On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication May 13, 1997. As Corrected June 4, 1997.
Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Humphreys, J.A.D.
The opinion of the court was delivered by: Humphreys
The opinion of the court was delivered by
Aileen Morris, a mother of nine children, was shot to death by a robber in 1989 while working as a clerk at a Krauszer's convenience store. The store was owned by defendant Convenience Management Services, Inc. ("CMSI") and operated by Dairy Stores. The jury returned a verdict against CMSI.
CMSI appeals, contending: (1) it had no duty under the facts to protect the decedent against the criminal acts of others; (2) it was immune from liability under the workers' compensation act; (3) the damage award was excessive; (4) the jury charge was inaccurate; (5) a jury interrogatory was improper; (6) certain evidence should not have been admitted; and (7) newly discovered evidence requires a limited remand for consideration of a R. 4:50-1 motion.
We have thoroughly reviewed the record and considered the arguments presented. We conclude that under the facts in this case CMSI had a duty to protect the decedent against the criminal acts of others. Whether that duty was breached was properly presented to the jury. The judgment is affirmed.
The murder occurred in the late morning. The store was located on Alston Road in Kendall Park, about one-tenth of a mile from Route 27. Across the street from the store was a strip mall. Behind the store was a hilly tract of undeveloped land with numerous paths used by motorcyclists and bicyclists. On the morning of the murder, the store had a steady flow of customers. CMSI contends that it owed no duty to Morris because the armed robbery and shooting were not foreseeable. The robbery occurred in the daylight hours. CMSI contends that no evidence was presented that the area was a high crime area or that the store had previously been robbed.
The existence of a legal duty is "generally considered" a question of law for the court to decide. Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996). In a recent case, the New Jersey Supreme Court said:
Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Foreseeability of injury to another is important, but not dispositive. Fairness, not foreseeability alone, is the test. Relevant to the determination of the fairness of the imposition of a duty on a landowner is the nature of the risk, the relationship of the parties, the opportunity to exercise care, and the effect on the public of the imposition of the duty.
Consistent with that analysis, we have found a landlord liable to a tenant for damages resulting from a burglary when the landlord failed to replace a broken dead-bolt lock on the tenant's apartment. . . .
We likewise have imposed liability on a landlord who provides inadequate security for common areas of rental premises for the failure to prevent a criminal assault on a tenant. . . .
Similarly, we have held that the owner of a supermarket may be liable to a customer who is mugged at night in the market's parking lot. . . .
Uniting [these decisions] is the premise that landlords and business owners should be liable for foreseeable injuries that occur on their premises. The underlying rationale is that they are in the best position to control the risk of harm. Ownership or control ...