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Clohesy v. Food Circus Supermarkets

June 26, 1997

MARY CLOHESY, EXECUTRIX OF THE ESTATE OF KATHLEEN DALTON, DECEASED, PLAINTIFF-APPELLANT,
v.
FOOD CIRCUS SUPERMARKETS, INC., T/A TWIN COUNTY GROCERS OR FOODTOWN OF RED BANK, DEFENDANT-RESPONDENT, AND PHILIP REARDON, JR., DEFENDANT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at: 293 N.J. Super. 217 (1996).

The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justices Handler, Pollock, Garibaldi, and Stein join in Justice COLEMAN's opinion. Justice O'hern did not participate.

The opinion of the court was delivered by: Coleman

(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).

Mary Clohesy, Executrix of the Estate of Kathleen Dalton, deceased v.

Food Circus Supermarkets, Inc., etc., et al (A-126-96)

Argued March 3, 1997 -- Decided June 26, 1997

COLEMAN, J., writing for a unanimous Court.

The issue presented is whether the owner of a large supermarket had a duty in 1991 to provide security or warnings in its parking lot to protect customers from criminal acts when similar criminal acts had not previously occurred.

On July 15, 1991, Kathleen Dalton, who was seventy-nine, went shopping at the Foodtown Supermarket on Broad Street in Red Bank. After completing her shopping at approximately 2:30 p.m., she was abducted in her car from the Foodtown parking lot. The abductor, Philip Reardon, Jr., murdered Mrs. Dalton by asphyxiation. He was later convicted of kidnapping, robbery, theft, and murder.

Mary Clohesy, executrix of Kathleen Dalton's estate, filed wrongful death and surivival actions against Foodtown and Philip Reardon, Jr. The complaint alleged that Foodtown was negligent in failing to provide any security or warnings in its parking lot.

Foodtown moved for summary judgment, arguing that it had breached no legal duty to Mrs. Dalton. The trial court granted the motion. The complaint against Philip Reardon was voluntarily dismissed so Ms. Clohesy could appeal the case as a final judgment.

The Appellate Division affirmed in a 2-to-1 decision. Because of the Dissent, Ms. Clohesy filed an appeal as of right with this Court.

HELD: Considering the evidence in the light of the totality of the circumstances, it was foreseeable that over the course of time a person would enter the parking lot of defendant supermarket and assault a customer. The supermarket owed plaintiff's decedent a legal duty to provide some measure of security in its parking lot.

1. Whether a defendant owes a legal duty is generally a question of law for the court to decide. So is the scope of such a duty. The foreseeability of harm alone does not answer the question of whether a legal duty exists. Forseeability in this case is limited to the existence and scope of duty owed by Foodtown to Mrs. Dalton. (pp. 5-6)

2. The Red Bank Police records disclosed approximately sixty criminal incidents on or near the Foodtown premises in the 2 1/2 years preceding the attack on Mrs. Dalton. As significant as the number of offenses was the escalating nature of the occurrences on Foodtown's property. (pp. 7-8)

3. Prior cases have established that business owners and landlords have a duty to protect patrons and tenants from foreseeable criminal acts occurring on their property. The determination of whether a duty exists does not depend on the existence of prior similar criminal incidents. To determine whether criminal incidents are "foreseeable," the Court has applied a "totality of circumstances" standard, which includes criminal activities in close proximity to the landlowner's property. (pp. 8-14)

4. Decisions in other jurisdictions and prior cases in New Jersey have persuaded the Court to reject the "prior similar incident" rule in favor of the totality of the circumstances approach. Furthermore, the courts in this State have consistently applied that approach when determining the existence and scope of duty. (pp. 15-23)

5. Although the Court does not rely heavily on the common law classification of Mrs. Dalton as an invitee, that status supports its Conclusions. Having extended an invitation to Mrs. Dalton, Foodtown was obligated not to engage in any affirmative actions or omissions that would unreasonably create or increase the risk of injury from the criminal activity of a third party. The scope of the duty owed includes security for the parking lot. (pp. 24-29)

6. Although the Court is not requiring Foodtown to provide security guards, the duty to provide security may include a security guard as well as any other security system or warnings deemed reasonable under all of the circumstances. (pp. 29-30)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion. JUSTICE O'HERN did not participate.

The opinion of the Court was delivered by

COLEMAN, J.

The issue in this appeal is whether the owner of a large supermarket with a correspondingly large parking lot had a duty in 1991 to provide security or warnings in its parking lot to protect its customers from the criminal acts of third parties, when prior similar criminal acts had not occurred in the parking lot. Kathleen Dalton, a customer at defendant's supermarket, was abducted from defendant's parking lot and later murdered. Prior to this incident, there had never been an abduction on Food Circus Supermarkets, Inc.'s ("Foodtown") property.

The trial court granted Foodtown's motion for summary judgment, finding that plaintiff had failed to establish prior similar incidents that would justify the imposition of a duty on defendant. The Appellate Division affirmed, with one Judge Dissenting. 293 N.J. Super. 217 (1996). Plaintiff has appealed as of right based on that Dissent. R. 2:2-1(a)(2). We now reverse.

I

Plaintiff Mary Clohesy, executrix of Kathleen Dalton's estate, filed wrongful death and survival causes of action against Foodtown and Ms. Dalton's killer, Philip Reardon, Jr. The complaint alleges that Foodtown was negligent in failing to provide any security or warnings in the parking lot.

The facts surrounding the murder of Kathleen Dalton are undisputed. On July 15, 1991, Ms. Dalton, who was seventy-nine-years old, went shopping at the Foodtown Supermarket on Broad Street in Red Bank, New Jersey. After completing her shopping at approximately 2:30 p.m., she returned to her car, that was parked in the Foodtown parking lot adjacent to the store. As she was entering her car, Philip Reardon, Jr., who had been loitering in the parking lot, forced her into her car and drove off. Reardon covered Ms. Dalton's nose and mouth with duct tape, thereby causing her to die of asphyxiation. Reardon was apprehended, and later convicted of kidnapping, robbery, theft, and murder.

The Broad Street Foodtown in Red Bank consists of 44,279 square feet and is located on 3.32 acres. Foodtown also owned and operated the parking lot that contained 200 parking spaces.

After discovery had been completed, Foodtown moved for summary judgment, contending that it had breached no legal duty owed to Ms. Dalton. It argued that because of the absence of a prior carjacking, murder, or similar criminal incident in the parking lot within a reasonable time before the abduction of Ms. Dalton, plaintiff could not establish foreseeability. The trial court granted Foodtown's motion, concluding that plaintiff's failure to allege prior similar criminal incidents in the parking lot precluded the imposition of a legal duty upon Foodtown. Plaintiff voluntarily dismissed the complaint against Reardon in order to appeal the dismissal of the complaint against Foodtown. R. 2:2-3(a)(1).

The Appellate Division affirmed, finding that defendant owed no duty to decedent to provide security or to post warnings in the parking lot because the abduction and murder of Ms. Dalton were not foreseeable absent prior similar incidents. 293 N.J. Super. at 221-23. The Appellate Division stated that "unlike the situation in Butler [v. Acme Markets, Inc., 89 N.J. 270 (1982)], there were no prior incidents of a nature that would render foreseeable the carjacking, assault, kidnapping and fatal gagging of a patron." Id. at 222. Under the Appellate Division's decision, in order for a criminal act to be foreseeable, the business owner must in most cases be aware of prior similar criminal incidents on the business premises. Id. at 224-25. The majority acknowledged, however, that in some circumstances, prior similar incidents on a defendant's property would not be required before imposition of a duty. Id. at 224. The majority cited situations where there have been "repeated carjackings or assaults upon persons in the immediate vicinity, or an extraordinary increase of such incidents in the community," as examples of situations that might be sufficient to create a duty. Ibid.

The Dissenting member of the panel rejected the majority's adoption of a refinement of the prior similar incidents approach to determining foreseeability. Id. at 228-43. Instead, he endorsed the use of the "totality of the circumstances" to determine a store owner's duty. Id. at 239. Applying the totality of the circumstances approach, the Dissenting member of the panel found that defendant did owe a duty to Ms. Dalton. Id. at 239-43.

II

-A-

The issue whether a defendant owes a legal duty is generally a question of law for the court to decide. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). Similarly, the scope of a duty owed is a matter of law. Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). The determination of the existence of a "duty to exercise reasonable care to avoid the risk of harm to another . . . is one of fairness and policy that implicates many factors." Carvalho, (supra) , 143 N.J. at 572; see also Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515 (1997); Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292 (1996); Dunphy v. Gregor, 136 N.J. 99, 110 (1994). In many instances, a landowner's liability for injuries is no longer based exclusively on the status of the injured party. Kuzmicz, (supra) , 147 N.J. at 515; Brett v. Great Am. Recreation, Inc., 144 N.J. ...


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