July 16, 2009
PHYLLIS PISCIOTTI AND PETER LAMONICA, HER HUSBAND, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
P.F. PASBJERG DEVELOPMENT CO. AND JACKSON PLAZA ASSOCIATES, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND PERLMART, INC., D/B/A SUPER SHOP RITE OF JACKSON, DEFENDANTS, AND P.F. PASBJERG DEVELOPMENT CO., JACKSON PLAZA ASSOCIATES AND PERLMART, INC., D/B/A SUPER SHOP RITE OF JACKSON, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
EDWARD C. HODUM, JR., THIRD-PARTY DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1012-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2008
Before Judges Skillman, Graves and Grall.
Plaintiff Phyllis Pisciotti was assaulted in the parking lot of a shopping center in Jackson owned by defendant Jackson Plaza Associates (Plaza) and managed by defendant P.F. Pasbjerg Development Co. (Pasbjerg). Edward C. Hodum, Jr., plaintiff's assailant, entered her car as she was preparing to leave the shopping center with groceries she had purchased at the Plaza from defendant Perlmart Shop Rite (Perlmart).
Pisciotti and her husband, whose claims were per quod, commenced this litigation to recover damages for injuries sustained as a consequence of the negligence of Perlmart, Plaza and Pasbjerg. Perlmart, Pasbjerg and Plaza filed third-party complaints seeking contribution and indemnification from Hodum. Perlmart settled with plaintiffs, and the jury awarded Pisciotti damages in the total amount of $275,000 and allocated eighty percent of the fault to Hodum, twenty percent to Plaza and Pasbjerg and no fault to Perlmart.
Plaintiffs appeal, and defendants Plaza and Pasbjerg cross-appeal from that judgment. Because plaintiffs' evidence was insufficient to establish defendants' negligence, we reverse on defendants' cross-appeal. That disposition obviates the need to address the issues raised by plaintiffs.
As reflected on the video-recording of activity at the entranceway of the Shop Rite, Pisciotti left that store with her groceries at 4:13 p.m. on Sunday, May 16, 2004. After putting her purchases into the back of her van, Pisciotti opted to forego return of the twenty-five cent deposit for the shopping cart she had used and left it by her car. She got into the driver's seat and put on her seatbelt. Hodum approached. Assuming that he wanted her shopping cart, she opened her window and said he could have it. He thanked her. When Pisciotti turned to reach for a cigarette, Hodum opened her car door and grabbed her by the neck. He said, "Shut up or I'm going to kill you." She struggled, called for help and honked the horn of her car. A passer-by shouted at Hodum, and he fled. Pisciotti saw him run first to a red truck and then to a black car, in which he drove away. At 4:16 p.m., three minutes after she had left the store with her groceries, Pisciotti re-entered the Shop Rite and called the police.
Pisciotti was able to give the police the license plate number of Hodum's car, and he was arrested. Both Hodum and Pisciotti had minor injuries that were visible. Hodum had a scratch and Pisciotti's neck was red, her face was scratched and her lip was cut.
The police kept Pisciotti's van but returned it without searching for evidence at her husband's request. She subsequently found rags in the van that did not belong to her or a member of her family. In June, she found a knife wedged in the back seat of the van. She viewed the items as evidence indicating that Hodum had entered and left her car while she was shopping. By the time of trial, Hodum had pled guilty to attempted kidnapping.
The Shop Rite is the anchor store of Plaza's shopping center. There are fourteen other tenants including Blockbuster, Cingular, a pizzeria, a fitness center, a mattress store, a dry cleaner, a bank, a Hallmark shop and a liquor store. On the far side of the parking lot, there is a McDonald's restaurant. As noted above, Shop Rite has a surveillance camera focused on the entrance to the store. The Shop Rite has additional cameras inside the store. Outside the store, Shop Rite's surveillance cameras cover the lane of traffic between the store front and the parking aisles and a portion of the parking lot. Neither Pisciotti's van nor Hodum's car, however, was parked in an area of the lot within the range of a camera.
Hodum's first appearance on Shop Rite's videotapes from May 16, 2004 was around 2:00 p.m. He left the liquor store carrying beer at 2:13 p.m. and was in front of the store at 2:24. He used a payphone in the store at 2:31, was outside at 2:41, used the phone again at 2:55, and was outside at 3:02 and 3:49.
There are no signs in the Plaza parking lot alerting would-be predators to the surveillance or warning patrons of danger. A security guard patrols the parking lot after dusk, but there is no security guard outside between dawn and dusk.
Pisciotti's expert on security management, David Johnston, reviewed police reports of incidents at the Plaza between January 22, 2003 and May 8, 2004. During that period there were five incidents in the parking lot. There were three thefts from automobiles, one in August 2003, one in January 2004 and one on May 8, 2004. On the afternoon of June 4, 2003, a woman's purse was taken from her shopping cart while she was loading her groceries into her car, which was parked in an area of the lot covered by one of Shop Rite's cameras. On May 2, 2004, three men fought after an obscene gesture led to an exchange of words and punches, but no charges were filed. There were no reports of loitering or suspicious behavior in the parking lot. The only report of crime off the premises and in the area of the shopping center was one filed after officers responded to a domestic violence incident in a home.
There were also reports of incidents inside the establishments operated by Plaza's tenants during the year-andone-half preceding Hodum's attack. In February 2003, a former employee came to the Shop Rite, was asked to leave and repeatedly re-entered the store. In May 2003, a purse was taken from a shopping cart in the store, and an employee pursued the thief into the parking lot. In September 2003, one of Plaza's tenants reported that a customer had threatened its employees. On two occasions, customers of Shop Rite were intoxicated. Suspicious activity was reported when a customer exchanged over $400 worth of coins for bills and when two young men who falsely claimed to be undercover officers told Shop Rite's manager that they were investigating drug use by Shop Rite employees. On August 2, 2003, Shop Rite filed a complaint against one of its employees alleging possession of CDS, and in October 30, 2003 one of Shop Rite's employees complained about sexual harassment in the workplace. During the entire period between January 22, 2003 and May 16, 2004, Plaza's tenants reported around fifteen incidents of shoplifting and five involving fraud against the businesses.
Based on the foregoing evidence of criminality on the premises and carjackings that had taken place in shopping centers and malls elsewhere in this State and the nation, Johnston concluded that defendants should have done more to protect Pisciotti from Hodum's attack. In his opinion, it is "reasonable" for the owner of a shopping center to conduct a risk assessment and Pasbjerg and Plaza had a duty to conduct one. Johnston explained that a risk assessment is the method a security professional uses to develop a sound program to deter criminal activity and that owners of shopping centers and malls who do not obtain one are left to "guess what they ought to do" to address the risks inherent in their business, facility and environs. When informed with a professional risk assessment, however, an owner can identify the "likelihood of certain things happening," prioritize risks and identify "programs that would more likely than not stop specific crimes from occurring." According to Johnston, a risk assessment entails review of criminal activity on the premises, like the one Johnston did in this case, but he noted that review of criminal activity is only one of "probably twenty elements to a risk assessment."
Because of the time required, Johnston did not do a risk assessment of the Plaza shopping center, but he gave his opinion on deficiencies in Plaza's system. In his view, the Plaza parking lot should have been patrolled by a security guard during the day and equipped with "closed circuit television cameras as well as signs looking out into the parking lot" that would advise would-be predators that the parking lot is "under surveillance." These measures would "deter an individual from breaking into a car, or attacking someone, or grabbing their purse while they're putting their groceries away, and those kind of things." He observed that this combination is seen in the parking lots of shopping malls and larger stores such as WalMart, because those measures are understood as effective deterrents of criminal activity.
In making his recommendation, Johnston also reviewed the videotapes of Hodum's activities on May 16, 2004 prior to his assault of Pisciotti. Johnston did not see anything suspicious about Hodum's conduct, but he explained that a trained security guard patrolling the lot would have viewed Hodum's presence in the lot for an extended period of time as sufficiently suspicious to warrant inquiry.
The owner of a parking lot has a duty to protect those who use it from foreseeable criminal acts of third parties. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 504-05 (1997). "'Foreseeability of the risk that criminal acts of others would cause harm is the crucial factor.'" Id. at 506 (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 276 (1982) (emphasis removed)). To establish a negligent failure to provide reasonable security, the plaintiff must prove that the commission of criminal acts by third parties was foreseeable under the totality of circumstances and that the owner of the parking facility failed to take reasonable measures to guard against the risk. Id. at 507-08, 519-20.
In Clohesy, the Court concluded that the owner of the Food Circus Supermarket could be found negligent based on its failure to provide security or warnings in its parking lot, under the totality of the circumstances in that case. Id. at 516-20. The circumstances the Court considered relevant were:
[A]ll the criminal acts that have occurred on [the supermarket's] property and those that occurred in close proximity to its property; the property's size and location; the absence of any security; the architectural design of the building in relation to the area of the parking lot where the crime occurred; the size of the parking lot; the type of business defendant operates; the nature and circumstances of nearby businesses; and the increasing level of crime in the general neighborhood. [Id. at 517.]
There had been sixty criminal incidents on or near Food Circus's supermarket during the two-and-one-half-year period before the crime, including "thirty shopliftings, twelve thefts either inside the store or in the parking lot, four driving while intoxicated, four disorderly persons, four assaults, one criminal mischief, one trespassing, and one possession of a controlled dangerous substance." Id. at 503-04. The number of offenses on the supermarket's property had escalated - "four in 1989, seven in 1990, and thirteen in 1991" - and the crime rate in the "area increased substantially in the two years preceding" the attack. Id. at 504, 514.
In the opinion of plaintiff's expert, that supermarket "was located in an area where criminal activity could reasonably be anticipated." Id. at 504.
In Clohesy, there was also evidence of special risks to which the supermarket's customers were exposed on its property. The attack at issue had occurred in an area of the parking lot that was "opposite a concrete wall [and] not visible from within the store." Id. at 515. That feature of the building's design was inconsistent with the safety of patrons who parked there because it precluded employees and patrons inside the store from seeing a problem if one arose. Id. at 504. The owner had done nothing to minimize the difficulty created by the design; nothing had been done to close that area of the parking lot, warn against parking there or install cameras that would permit observation from within the store. Id. at 504, 515. The risk of criminal activity on the supermarket's property was further enhanced by the surrounding businesses. A nearby gas station and a liquor store adjacent to the parking lot served as "gathering places for loiterers and attracted persons to drink and 'hang around.'" Id. at 504.
In the opinion of plaintiff's security expert, under these circumstances the supermarket's "failure to provide any security for its parking lot deviated from the industry's standard of care." Id. at 504.
In Butler, a case involving a nighttime attack in the parking lot of an Acme supermarket, the Court concluded that the evidence was adequate to support a finding of negligence in the performance of Acme's duty to protect its parking customers from criminal attacks. 89 N.J. at 270. The evidence there was seven prior muggings in the store's parking lot within a year, five of which occurred at night and within four months of the attack against Butler. Id. at 274. Despite that frequency of prior crimes, Acme had one security guard primarily inside the store and provided no warnings about possible danger. Id. at 274-75.
The circumstances of this case, viewed in their totality, are not at all comparable to those in Clohesy or Butler. Here, the number of offenses reported remained relatively constant - eleven reports in the first half of 2003, ten in the second-half of that year (including a report about an intoxicated patron who could not locate her car and an employee's possession of drugs reported by Shop Rite), and twelve (including the mutual combat assault) between January 1 and May 8, 2004. The offenses were not of increasing severity. Purses were taken from shopping carts in May 2003 and June 2004 but not thereafter, and the total number of thefts during each of the three six-month periods, including shoplifting, was five, six and eight. There is no evidence that patrons of any establishment congregated to loiter and drink in the shopping center or nearby. There is no evidence that crime in the area increased substantially or was prevalent, and no evidence of a building or parking design that presented an opportunity for undetected crime. There was evidence that Shop Rite had cameras focused on portions of the parking lot and had hired a guard to patrol the parking lot at night.
The testimony provided by Johnston added nothing of significance. According to Johnston, an owner of a shopping center who does not do a risk assessment is guessing about the adequacy of security measures, but Johnston subsequently admitted that he had not done a risk assessment of Plaza's shopping center. His admission left room for only one reasonable inference about the value of his opinion on the necessity of additional security cameras, signs announcing the surveillance and a security guard - that his recommendations were a product of guesswork. Although Johnston reported that malls and large stores, such as WalMart, have cameras, signs and patrolling guards, he did not indicate that those techniques are required by industry standards for shopping centers like Plaza.
The circumstances of this case are more like those in Ivins v. Town Tavern, 335 N.J. Super. 188 (App. Div. 2000), than they are like those in Butler and Clohesy. In Ivins this court affirmed the involuntary dismissal of a claim by a plaintiff who was injured when he took action to protect a friend involved in a fight in Town Tavern's parking lot. Id. at 191. Plaintiff claimed the bar was negligent because it did not have a security guard or bouncer in the parking lot. Id. at 192-93. Distinguishing Butler and Clohesy, we reasoned:
The evidence of incidents during [the year-and-a-half proceeding the fight] establishes only two actual incidents of violence, one inside the bar over a pool game and one in the parking lot involving an intoxicated person. Moreover, there was no evidence that the tavern was located in an area that was particularly susceptible to violence.
And, although the aggressor was known by the tavern and its employees to have a potentially violent nature and the employees may have been aware of the friction between the aggressor and plaintiff's friend, there was no evidence of any events occurring inside the tavern that night that should have put the tavern employees on notice that a possible fight was in the works, triggering a duty on their part to take preventive measures. [Id. at 197.]
In this case, as in Ivins, the evidence was inadequate to establish a totality of circumstances under which defendants should have done more to protect its customers in the parking lot or Pisciotti from an attack by Hodum, who had been on the premises for about two hours and, by the evidence presented, had done nothing to raise suspicion about his presence.
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