Craig v. A.A.R. Realty Corp.

• Decision Date: 02 May 1989
• Docket Number: No. 83C-SE-69,83C-SE-69
• Citation: 576 A.2d 688
• Parties: Arthur J. CRAIG, Administrator of the Estate of Linda May Craig, Deceased, Arthur J. Craig, in his own right, Arthur J. Craig, as next friend of Arthur J. Craig, Jr., Linda May Craig, and Jack Craig, Plaintiffs, v. A.A.R. REALTY CORP., Tri-State Mall Associates, The Tri-State Mall Merchants Association, Inc. and Tri-State Security Systems, Defendants. Civ. A.
• Court: Delaware Superior Court

Page 688

576 A.2d 688

Arthur J. CRAIG, Administrator of the Estate of Linda May

Craig, Deceased, Arthur J. Craig, in his own right, Arthur

J. Craig, as next friend of Arthur J. Craig, Jr., Linda May

Craig, and Jack Craig, Plaintiffs, v. A.A.R. REALTY CORP., Tri-State Mall Associates, The

Tri-State Mall Merchants Association, Inc. and

Tri-State Security Systems, Defendants.

Civ. A. No. 83C-SE-69.

Superior Court of Delaware,

New Castle County.

Submitted Sept. 26, 1988.

Decided May 2, 1989.

John A. Elzufon, Elzufon & Associates, P.A., Wilmington, for plaintiffs.

Richard P.S. Hannum, Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for defendants.

POPPITI, Judge.

This is a survival and wrongful death action seeking both compensatory and punitive damages as a result of the death by murder of Linda May Craig following her alleged abduction from the Tri-State Mall and her later rape. The Defendant Tri-State Mall Associates an unincorporated association ("TMA") owns both the land and building known as the Tri-State Mall Complex ("Mall") located on Naamans Road near the intersection of that road with Interstate I-95, New Castle County, Delaware. TMA is part of a large real estate conglomerate known as the Le Frak Organization headquartered in New York City. The Defendant A.A.R. Realty Corp. ("A.A.R.") leased the premises from TMA. The Defendant Tri-State Mall Merchants Association ("Association") is an association of the merchants who conducted their businesses at the Mall. The Association had some responsibility regarding Mall security.

The matter is presently before the Court on TMA's motion for summary judgment and on A.A.R.'s motion for partial summary judgment on the issue of punitive damages.

The record consists of the pleadings, answers to propounded discovery and various affidavits filed with regard to the pending motions.

In order to prevail on a motion for summary judgment, the moving party must show that no genuine issue of material fact exists, Norse Petroleum A/S v. LVO Int'l., Inc., Del.Super., 389 A.2d 771 (1978), and that he/she is entitled to judgment as a matter of law. Bradford, Inc. v. Travelers Indem. Co., Del.Super., 301 A.2d 519 (1972). In considering a motion for summary judgment, the facts must be viewed in a light most favorable to the non-moving party. Shultz v. Delaware Trust Co., Del.Super., 360 A.2d 576 (1976).

The following recited facts are either undisputed or are taken in a light most favorable to the non-moving Plaintiffs. Linda Craig was employed as a salesperson for one of the kiosks set up in the upstairs common area of the Mall during the Christmas season. Upon leaving work at about 4:05 p.m. on December 15, 1981, she was kidnapped in the Mall parking lot and transported to Pennsylvania where she was raped and murdered. Although there were no witnesses to the crimes, Nicholas Yarris was subsequently tried and convicted of the offenses.

At the time of the incident A.A.R.'s leasehold interest beginning August 16, 1971 ran for 25 years. Pursuant to the terms of the lease A.A.R. "has been and will be in exclusive possession and control of the demised premises during the term of this lease." TMA receives a fixed annual rental of $268,750 plus 20% of the rentals to the merchants' sublessees.

At some time prior to the incident, Mall security was contracted for by the Association which paid for 75% of the cost, the 25% balance being paid for by A.A.R. At all times relevant hereto Mall security was conducted by two off-duty police officers. One officer patrolled the Mall building while the other patrolled the parking lot. The security detail did not commence each day until between 6:00 or 6:30 p.m.

Although all representatives of each named Defendant stated in deposition that they were unaware of any crimes of a similar nature having been committed at the Mall in the recent past, statistics from the Delaware State Police reveal that between January 1, 1978 to December 15, 1981 the following violent crimes against persons were committed at the Mall: 1 Homicide, 3 Kidnappings (1 sexual assault related), 13 Robberies, 49 Assaults, 4 Indecent Exposures, 3 Possession of Weapon Offenses. Further evaluation of the proffered data reveals that in the intervening 1,445 days between January 1, 1978 to December 15, 1981 crimes were committed at the Mall on 900 of the days and 1,487 reports were issued during the period.

TMA contends that it had nothing to do with Mall security nor did it have any responsibility for same. According to the deposition testimony of TMA's representative Maxwell Goldpin ("Goldpin"), TMA's interest was limited to "the tenancy and condition of the Mall as well as income and expenses." Consequently, Goldpin, acting on behalf of TMA, visited the Mall two or three times a year to inspect the Mall's physical appearance and monitor the tenancies. His written reports to A.A.R. in this regard include discussion of the following matters: general Mall cleanliness, roof leaks, parking lot stripe painting, air conditioning, 11% unemployment rate in August 1975, status of various leases, quality of films being shown at the movie theatre, and competition in the area. Not until after the incident in question did Goldpin make any reference to Mall security when in correspondence to A.A.R. dated January 16, 1985 he stated, "The tenants that I spoke to all seem to have the same complaint: Security, Security. Perhaps they can be induced to obtaining additional personnel." ¹

Goldpin asserts that there was no discussion of security with A.A.R. because he maintains that TMA left Mall management, which included security, to A.A.R. ² When queried why he never checked to determine whether security was adequate, Goldpin responded that, to his knowledge, no security problem existed, although he admitted never undertaking an investigation of the crime situation at the Mall. Further, Goldpin assumed, without inquiring, the following regarding A.A.R.'s handling of Mall security: that the Association and A.A.R. would cooperate to decide security matters; that A.A.R. was actively involved in obtaining security; that the bulk of the expenses for security was paid by the Association; and that the Association and A.A.R. periodically reviewed security procedures to assure their adequacy.

With respect to A.A.R., discovery reveals the Mall is the largest project managed by A.A.R. The daily operations were handled by Marian Luff ("Luff"), A.A.R.'s on-site manager, who had no background in security matters and no authority to act with regard to security matters without clearance from A.A.R.'s New York headquarters. The security procedures developed by the Association were not periodically reviewed by A.A.R. No one in authority at A.A.R., particularly Abner or Jonathan Rosen, Chief Executive Officer and Vice-President respectively, familiarized themselves with Mall security. No one at A.A.R. knew that the Mall was completely without security prior to 6:00 p.m. Instead, A.A.R. relied solely on the Association for security except for the 25% payment obligation. On at least two occasions prior to the December 15 incident, Luff called A.A.R. headquarters to pass along the Association's concerns about security. According to Luff, she was told A.A.R. did not become involved with security matters. Due to A.A.R.'s policy of not being involved with Mall security, Luff avoided discussion of security at Association meetings which she regularly attended.

I. Duty of TMA

In conjunction with TMA's application for summary judgment, I am asked to decide whether a non-possessory landowner owes a duty of care to protect business invitees ³ of its tenants from the criminal acts of third parties. The element of duty in an action for negligence is usually considered to be an issue of law for the court to determine. Trabaudo v. Kenton Ruritan Club, Inc., Del.Super., 517 A.2d 706, 707 (1986); O'Connor v. Diamond State Telephone Co., Del.Super., 503 A.2d 661, 663 (1985); Carpenter v. O'Day, et al., Del.Super., 562 A.2d 595 (1988); Furek v. University of Delaware, et al., Del.Super., C.A. No. 82-SE-30, Poppiti, J. (December 23, 1987). Further, the determination of whether the interest of a Plaintiff which has suffered invasion is entitled to legal protection is frequently an expression by the court of evolving public policy. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts (5th ed. 1984) at 356-359; Carpenter, supra at 600-01; Furek, supra at 9; DiOssi v. C. Ronald Maroney, et al., Del.Supr., 548 A.2d 1361 (1988). In short, the recognition that a duty exists is "... only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Prosser and Keeton, supra at 358. It may be observed then that:

... the courts have merely 'reacted to the situation in the way in which the great mass of mankind customarily react,' and that as our ideas of human relations change the law as to duties changes with them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made than that the courts will find a duty where, in general, reasonable persons could recognize it and agree that it exists.

Prosser and Keeton, supra at 354.

At common law a property owner owed an affirmative duty to protect a business invitee from reasonably foreseeable dangers on the premises. Hamm v. Ramunno, Del.Supr., 281 A.2d 601 (1971); Prosser and Keeton on Torts, supra at 419. Under the common law this duty extended to the acts of third parties. In the language of the Restatement (Second) of Torts § 344:

A possessor of land who holds it open...