Jardel Co., Inc. v. Hughes

• Decision Date: 09 September 1986
• Citation: 523 A.2d 518
• Parties: JARDEL CO., INC., and John A. Robbins Co., Inc., Defendants Below, Appellants, v. Kathleen HUGHES, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 518

523 A.2d 518

JARDEL CO., INC., and John A. Robbins Co., Inc., Defendants Below, Appellants, v. Kathleen HUGHES, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Sept. 9, 1986.

Decided: March 23, 1987.

Rehearing Denied April 16, 1987.

Upon Appeal from Superior Court. AFFIRMED IN PART. REVERSED IN PART.

Victor F. Battaglia (argued), Wayne A. Marvel and Francis S. Babiarz of Biggs & Battaglia, Wilmington, for appellants.

Morton Richard Kimmel (argued), Michael Weiss and Edward B. Carter Jr. of Kimmel, Spiller & Weiss, P.A., Wilmington, for appellee.

Before CHRISTIE, C.J., MOORE and WALSH, JJ.

WALSH, Justice:

This is an appeal from a Superior Court jury verdict awarding $530,000 compensatory and $250,000 punitive damages to an employee of a tenant in a shopping mall who was abducted and raped while leaving her employment. The jury concluded that the plaintiff's injuries were attributable to the combined neglect of the owner of the mall, Jardel Co., Inc., and its parent corporation, John A. Robbins Co., in not providing adequate security in the mall parking lot. Jardel and Robbins ¹ contend that the trial court erred in not directing a verdict in their favor on the issue of liability and in several evidentiary rulings in the course of the trial. Jardel also attacks the jury's award of punitive damages as lacking a sufficient legal predicate. We conclude that while the award of compensatory damages is fully supportable in this case, the Superior Court erred, as a matter of law, in submitting the issue of punitive damages to the jury. Accordingly, we reverse that portion of the Superior Court judgment.

I

The incident which gave rise to this litigation occurred on July 18, 1980, shortly after 9:00 p.m. The plaintiff, an employee of the Woolco store in the Blue Hen Mall in Dover, left her place of employment at closing time. She proceeded through the interior arcade of the mall with the intention of exiting through the rear entrance of the mall adjacent to the parking lot where her vehicle was located. Near the entrance to the Fox theater, the plaintiff was accosted by two unkempt young men, later identified as Mark Reed and Harry Turner, who had been denied entrance to the theater because Fox personnel believed them intoxicated. When these individuals asked plaintiff for a cigarette, she briefly spoke with them, gave them a cigarette and walked on. Reed and Turner followed the plaintiff to her car, which was parked approximately 50 feet from the mall entrance. When she attempted to enter her car, they forced their way into the vehicle with her and drove away.

After being driven to a remote site adjacent to the mall, the plaintiff was beaten and raped by both assailants. While she was unconscious and lying on the ground, her assailants attempted to run her over with her car and later set fire to the car while she was lying in it. Plaintiff regained consciousness and staggered nude and bloodied onto a nearby highway where a passing motorist found her and took her to a nearby hospital.

Plaintiff remained hospitalized for six days. She was treated for severe contusions to the face and scalp, a cerebral concussion and a permanent fracture of the left infraorbital rim of the skull. This latter injury has resulted in a permanent displacement of her left eye and double vision. In addition to her physical injuries the plaintiff, at the time of trial four years later, still suffered from psychological injuries of a post-traumatic stress disorder type.

The security arrangement at the Blue Hen Mall at the time of this incident involved two separate security firms. During business hours, the mall interior was patrolled by employees of Bennett Security Service, under contract with the Mall Merchants Association, on behalf of the mercantile tenants. At closing time, usually 9 p.m., security became the responsibility of Globe Security Systems, Inc. ("Globe"), ² whose primary concern was the mall exterior, particularly the parking area.

In April, 1979, John Green, Jardel's mall manager, began discussions of security measures with Rita Rodriguez, at the time Vice-President of both Jardel and Robbins and the person with ultimate authority for security expenditures. Their concern arose from the perception of an increase in littering, loitering and automobile racing in the mall parking lot, and instances of minor theft and damage to automobiles. As a result of these discussions, Rodriguez instructed Green to contact national security companies. Green testified that he was not specifically instructed to seek one guard, but was to inquire about guard "services."

Before soliciting bids from security companies, Green contacted Chief Klenowski of the Dover Police Department to ascertain the police impression of criminal activity at the mall and secure whatever statistics might be available on the subject. Green was advised that no such information was available because the mall had not been established as a separate statistical grid or unit.

On June 11, 1979, Jardel entered into a contract with Globe for guard services. Although the contract did not specify how many guards Jardel would use, Jardel decided to use one guard for each nightly shift beginning at 9 p.m. Rodriguez made this decision after conferring with Green, who had discussed the manpower requirements with Globe representatives prior to the awarding of the contract. Globe personnel testified that they had suggested to Green during those discussions that the mall exterior was too large for one guard. Green denied receiving a specific recommendation to that effect at that time but did acknowledge that while the contract was in effect Globe requested, on more than one occasion, an increase in the number of guards. Green sought justification from Globe for the additional expense.

The primary reason advanced by Globe personnel for the presence of an additional guard was the lack of radio contact with the Dover police, who had refused to permit direct access to the police radio band by persons who were not sworn police officers. Globe wished to remedy this communications gap by placing, inside the mall, an additional guard who would be in radio contact with the outside guard. The inside guard could then communicate requests for assistance by telephone to the Dover police. Green considered this measure superfluous since the same radio liaison could be effected by already-employed maintenance personnel who remained inside the mall throughout the night.

Green's knowledge of security conditions at the mall was not based entirely upon his contacts with Globe's supervisory personnel. Each day he reviewed the report of the previous night prepared by the Globe employee. He also spoke with Bennett security employees and with various merchants in the mall.

Shortly prior to accosting the plaintiff, her abductors had been denied admission to the Fox movie theater located at the mall entrance because employees of the theater believed them drunk or under the influence of drugs. Fox personnel did not alert security to the problem. Near the time plaintiff was forced into her vehicle in the rear parking lot the Bennett security guard was still on duty inside the mall and the Globe guard was in his patrol vehicle parked outside the Woolco store in the front parking lot.

II

At trial, Jardel conceded that the plaintiff was the beneficiary of its rental agreement with her employer, and that the attack upon her occurred on leased premises, but claimed that it owed plaintiff no duty to provide security for her safety. Jardel argued at trial, and persists in the argument on appeal, that its duty as a landlord is governed exclusively by The Landlord-Tenant Code, 25 Del.C. Part III (the "Code"). Since the Code expressly preempts the common law, the argument runs, it also precludes a claim based on an implied warranty of habitability, i.e., a landlord's duty to provide safe premises. The Superior Court expressly rejected this argument in denying Jardel's motion for a directed verdict at the close of all the evidence and we affirm that ruling.

Jardel's Code argument is based on a narrow reading of 25 Del.C. § 5303(a), which requires the landlord at all times during the tenancy to "(2) Provide a rental unit which shall not endanger the health, welfare or safety of the tenants or occupants...." Jardel seeks to limit a landlord's obligation under the quoted language to providing a rental structure free of physical defects, but not free of the risk from the criminal acts of third parties.

The distinction between risks arising from the physical condition of the premises and risks attributable to the conduct of third parties is appropriately drawn and has been recognized in decisions involving claims against landlords. Goldberg v. Housing Authority of the City of Newark N.J.Supr., 38 N.J. 578, 186 A.2d 291 (1962); New York City Housing Authority v. Medlin, N.Y.Civ.Ct., 57 Misc.2d 145, 291 N.Y.S.2d 672 (1968); aff'd, N.Y.Supr., App. Div., 64 Misc.2d 857, 316 N.Y.S.2d 149 (1968); Pippin v. Chicago Housing Authority, Ill.Supr., 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (1979). These cases, however, concerned claims by tenants of public housing under local statutes and regulations limiting the general ownership obligations of governmental landlords. More importantly, in each case the claim of the injured party was based on the lack of any security, not on the inadequacy of existing security personnel.

We deem it unnecessary to determine in this case whether the Code requires the landlord to provide security incident to its obligation to provide safe premises. This is not a dispute between landlord and tenant concerning the contractual obligations arising from their expressed relationship, but rather the claim of a third party to whom the landlord extended the expectation of safety by providing a security system over the common areas of the mall. Whether Jardel...