Butler v. Acme Markets, Inc.

• Decision Date: 11 May 1982
• Citation: 89 N.J. 270,445 A.2d 1141
• Parties: Helen BUTLER, Plaintiff-Respondent, v. ACME MARKETS, INC., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 270

89 N.J. 270

445 A.2d 1141

Helen BUTLER, Plaintiff-Respondent, v. ACME MARKETS, INC., Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 30, 1981.

Decided May 11, 1982.

Daniel K. Newman, Newark, for defendant-appellant (Pantages, Sellar, Richardson, Stuart & Crowley, Newark, attorneys).

Francis F. Welsh, Montclair, for plaintiff-respondent.

Henry G. Morgan, Livingston, submitted a brief on behalf of amici curiae Supermarkets General Corp., Vornado, Inc., and New Jersey Catalog Showroom Merchants Association (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attorneys).

The opinion of the Court was delivered by

O'HERN, J.

The central question in this appeal is the extent of a store owner's duty to protect its customers against the criminal acts of third persons. The trial court set aside a jury verdict of damages, holding that there was no such duty. The Appellate Division reversed. 177 N.J.Super. 279, 426 A.2d 521 (1981). We granted defendant's petition for certification, 87 N.J. 414, 434 A.2d 1089 (1981), and we now affirm.

I.

On the evening of November 11, 1977, plaintiff Helen Butler, then in her early sixties, went out to shop for food at an Acme store located in Montclair. Having parked on the easterly side of the store's parking lot, Mrs. Butler came out with her bags, set them down on the bumper of her car, and began to open her trunk. Suddenly, someone came up from behind, knocked her to the ground, and grabbed her purse. In the fall, she injured her head, face and chest and twisted her ankle. Remaining conscious, she was able to assist the police in apprehending her attacker.

Mrs. Butler sued Acme Markets, Inc. to recover for her personal injuries and lost wages, claiming that Acme had been negligent in failing to warn and in failing to provide a safe place in which to shop and park. The area where the assault occurred was well lighted. Seven muggings had occurred on the Acme premises in a year's time, five of which occurred in the evenings during the four months preceding the attack on Mrs. Butler. Although Mrs. Butler lived several blocks from the store, and had shopped there for a number of years, she was unaware of the previous muggings on the premises. Acme had hired off-duty Montclair police officers to supply security for the Acme Market on certain evenings. However, only one officer was on duty at a time. The guard's duties were to watch out for shoplifters, to see that no bad checks were passed, to patrol both inside and outside of the store, and to watch customers' parcels while they retrieved their cars. No signs or warnings advising the patrons of the possibility of criminal attack were posted. At the time Mrs. Butler was attacked, the lone security guard was inside the store; there was no one on duty in the parking lot.

At the close of the plaintiff's case and again at the close of the entire trial, the defendant moved to dismiss the complaint for failure to state a claim. The trial court reserved decision pursuant to R. 4:40-2(a). The jury returned a verdict of $3600 for the plaintiff. It found that Acme had not exercised reasonable care, but that Acme "did not cause the crime." The trial court molded the verdict in the plaintiff's favor; the jury assented unanimously. Thereafter, the trial judge granted the defendant's motion for judgment notwithstanding the verdict and entered judgment in favor of the defendant.

The Appellate Division reversed the trial court. That court said:

The duty owed by the proprietor of premises to which the public is invited for consummation of business with the proprietor, such as the operator of a supermarket, is to exercise reasonable care to see that one who enters his premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.... In our view, it is not unreasonable or unfair to require defendant and other supermarket operators furnishing parking facilities to their customers in high crime areas or where, as here, there has been a history of persistent attacks, to provide adequate protection, such as security guards, for its customers using the parking facilities. [177 N.J.Super. at 286-287, 426 A.2d 521 (citations omitted) ]

II.

As the Appellate Division correctly recognized, a shopkeeper's liability under these circumstances is properly based upon familiar negligence concepts. 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. Brody v. Albert Lifson & Sons, 17 N.J. 383, 389, 111 A.2d 504 (1955); Genovay v. Fox, 50 N.J.Super. 538, 549, 143 A.2d 229 (App.Div.1958), rev'd on other grounds, 29 N.J. 436, 149 A.2d 212 (1959). The measure of that care has been described as "due care under all the circumstances." Bozza v. Vornado, Inc., 42 N.J. 355, 359, 200 A.2d 777 (1964); 2 Harper & James, Law of Torts (1956) § 27.12 at 1487. "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Rappaport v. Nichols, 31 N.J. 188, 201, 156 A.2d 1 (1959). If the reasonably prudent person would foresee danger resulting from another's voluntary criminal acts, the fact that another's actions are beyond defendant's control does not preclude liability. Trentacost v. Brussel, 82 N.J. 214, 222, 412 A.2d 436 (1980); Hill v. Yaskin, 75 N.J. 139, 143-145, 380 A.2d 1107 (1977); Zinck v. Whelan, 120 N.J.Super. 432, 445, 294 A.2d 727; Picco v. Fords Diner, Inc., 113 N.J.Super. 465, 274 A.2d 301 (1971); Genovay v. Fox, supra, 50 N.J.Super. at 550-551, 143 A.2d 229. Foreseeability of the risk that criminal acts of others would cause harm is the crucial factor. McGlynn v. Newark Parking Authority, 86 N.J. 551, 432 A.2d 99 (1981).

Application of these principles in Braitman v. Overlook Terrace Corp., 68 N.J. 368, 346 A.2d 76 (1975), led to the imposition of liability for a landlord's failure to provide an adequate lock on an apartment door, resulting in a property loss due to a robbery. Since the robbery was within the scope of foreseeable risks created by the inadequate security, the Court found the landlord liable for negligence.

In Trentacost v. Brussel, supra, this principle of responsibility to provide adequate security against foreseeable conduct was applied to the imposition of liability for personal injuries to a tenant who was assaulted while on the stairway of her apartment. There was no lock on the front door and there was ample evidence that criminal activity affecting the building was reasonably foreseeable.

While those cases involved the relationship of landlord and tenant, their principles are equally applicable to the responsibility of commercial shopkeepers. The common law traditionally imposed affirmative duties only on selected individuals based on their status. The courts were reluctant to force people to help one another. ¹ Liability for nonfeasance developed slowly appearing first in the case of those engaged in public calling, such as common carriers, innkeepers, public warehousemen and public utilities. Owners and occupiers of land make up the largest single group upon whom the duty of affirmative conduct has been imposed. Prosser, Law of Torts (4th ed.), § 56, at 339. 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. Renz v. Penn Central Corp., 87 N.J. 437, 462, 435 A.2d 540 (1981); McGlynn, supra, 86 N.J. at 555-560, 432 A.2d 99.

III.

Since the foreseeability of criminal conduct in this case is apparent, defendant argues that the conventional principles of proximate cause should not apply here because the responsibility for security remains in the governmental sector with its attendant police power. A legal realist will concede that "[u]tilization of that term [proximate cause] to draw judicial lines beyond which liability will not be extended is fundamentally as an instrument of fairness and policy, although the conclusion is frequently expressed in the confusing language of causation, 'foreseeability' and 'natural and probable consequences.' " Caputzal v. The Lindsay Co., 48 N.J. 69, 77, 222 A.2d 513 (1966). Defendant's principal reliance is upon Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 186 A.2d 291 (1962), where it was said:

The question whether a private party must provide protection for another is not solved merely by recourse to "foreseeability." Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide "police" protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner.... Of course, none of this is at all palatable. [Id. at 583, 186 A.2d 291]

Plaintiff in Goldberg was beaten and robbed by two men while he was delivering milk to the defendant's housing project. The jury found for plaintiff and the Appellate Division affirmed. Before the Supreme Court, plaintiff's sole thesis was that the defendant housing authority had a duty to provide police protection. By a 4-3 decision, the Court concluded that as an original proposition the owner of multi-family structures did not have the duty to provide police protection. ² Helen Butler's case did not proceed solely on the basis that Acme must provide police protection. The case was presented to the jury and decided by it in terms of general negligence, including failure of the duty to warn patrons of the recent repeated attacks.

But on the thesis it pursued, the Goldberg Court assigned...