Clohesy v. Food Circus Supermarkets, Inc.

Decision Date26 June 1997
Citation694 A.2d 1017,149 N.J. 496
PartiesMary 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.
CourtNew Jersey Supreme Court

Michael D. Schottland, Freehold, for plaintiff-appellant (Schottland, Manning & Rosen, attorneys; Mr. Schottland and Nicholas C. Caliendo, on the brief).

Jane Garrity Glass, Montclair, for defendant-respondent (Garrity, Graham & Favetta, attorneys; Michael A. Graham, of counsel).

The opinion of the Court was delivered by


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, 679 A.2d 1230 (1996). Plaintiff has appealed as of right based on that dissent. R. 2:2-1(a)(2). We now reverse.


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, 679 A.2d 1230. The Appellate Division stated that "[u]nlike the situation in Butler [v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (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, 679 A.2d 1230. 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, 679 A.2d 1230. 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, 679 A.2d 1230. 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, 679 A.2d 1230. Instead, he endorsed the use of the "totality of the circumstances" to determine a store owner's duty. Id. at 239, 679 A.2d 1230. 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, 679 A.2d 1230.



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, 675 A.2d 209 (1996). Similarly, the scope of a duty owed is a matter of law. Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (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, 675 A.2d 209; see also Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515, 688 A.2d 1018 (1997); Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292, 676 A.2d 1036 (1996); Dunphy v. Gregor, 136 N.J. 99, 110, 642 A.2d 372 (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, 688 A.2d 1018; Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509, 677 A.2d 705 (1996). However, in a case such as the present one in which the legal relationship is clearly defined, the common law classifications can be useful in determining the existence and scope of the duty of care owed.

Foreseeability of harm alone is not dispositive of whether a duty exists. Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962). "[I]t is a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288 (1994). "[T]he concept of foreseeability [subsumes] many of the concerns we acknowledge as relevant to the imposition of a duty: the relationship between the plaintiff and the tortfeasor, the nature of the risk, and the ability and opportunity to exercise care." Ibid.

Foreseeability as a determinant of a business owner's duty of care to its customers is to be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury. Foreseeability as it impacts duty determinations refers to

"the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care."

[Hill v. Yaskin, 75 N.J. 139, 144, 380 A.2d 1107 (1977) (quoting 57 Am.Jur.2d Negligence § 58 (1970)).]

Foreseeability that affects proximate cause, on the other hand, relates to "the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff" reasonably flowed from defendant's breach of duty. Id. at 143, 380 A.2d 1107. Foreseeability in the proximate cause context relates to remoteness rather than the existence of a duty. Foreseeability in the present case is limited to the existence and scope of duty owed to Ms. Dalton.


Plaintiff contends that a sufficient evidential basis was presented to the trial court to establish foreseeability of harm to customers of Foodtown who used the parking lot.

The discovery in this case revealed that Foodtown was located next to a liquor store and a gasoline station. Foodtown provided no security for its parking lot. The area of the parking lot from which Ms. Dalton was kidnapped was located beside a section of the store that had no windows or glass doors. The store wall adjacent to where Ms. Dalton parked was a solid concrete structure. It did not contain a surveillance camera or any warning to customers. Foodtown's security was limited to the deterrence, detection, and apprehension of shoplifters inside the store.

The Red Bank Police Department officially recorded approximately sixty criminal incidents either on or near the Foodtown premises over the two-and-one-half-year period that preceded Ms. Dalton's kidnapping and murder on July 15, 1991. The offenses consisted of 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. As significant as the number of offenses is the escalating nature of the occurrences on Foodtown's property. There were four in 1989, seven in 1990, and thirteen in 1991. That represents a significant increase between 1989 and 1991.

Plaintiff also presented a report prepared by William A. Torphy, a commercial facility design, management, and security expert. He conducted a security evaluation of the Red Bank Foodtown and concluded that its failure to provide any security for its parking...

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