Kuzmicz v. Ivy Hill Park Apartments, Inc.

• Court: New Jersey Supreme Court
• Writing for the Court: POLLOCK; STEIN
• Citation: Kuzmicz v. Ivy Hill Park Apartments, Inc., 688 A.2d 1018, 147 N.J. 510 (N.J. 1997)
• Decision Date: 20 February 1997
• Parties: , 65 USLW 2576 Ireneusz KUZMICZ, Marie Kuzmicz, Tadeusz Wronowski and Hannah Wronowski, Plaintiffs-Respondents, v. IVY HILL PARK APARTMENTS, INC. a/k/a Ivy Hill Park Section V, Defendant and Third Party Plaintiff-Appellant. CITY OF NEWARK AND NEWARK BOARD OF EDUCATION, Defendants, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Third Party Defendant-Respondent, and John Doe, Third Party Defendant.

Page 510

147 N.J. 510

688 A.2d 1018, 65 USLW 2576

Ireneusz KUZMICZ, Marie Kuzmicz, Tadeusz Wronowski and Hannah Wronowski, Plaintiffs-Respondents, v. IVY HILL PARK APARTMENTS, INC. a/k/a Ivy Hill Park Section

V, Defendant and Third Party Plaintiff-Appellant.

CITY OF NEWARK AND NEWARK BOARD OF EDUCATION, Defendants, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Third Party

Defendant-Respondent,

and

John Doe, Third Party Defendant.

Supreme Court of New Jersey.

Argued March 11, 1996.

Decided Feb. 20, 1997.

John Burke, Morristown, for Defendant and Third Party Plaintiff-Appellant (Berlin, Kaplan, Dembling & Burke, attorneys).

Joel C. Rinsky, Livingston, for Plaintiffs-Respondents Ireneusz Kuzmicz, Marie Kuzmicz, Tadeusz Wronowski and Hannah Wronowski.

Raymond R. Connell, Montclair, for Third Party Defendant-Respondent Great Atlantic & Pacific Tea Company, Inc. (Dwyer, Connell & Lisbona, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

Plaintiff Ireneusz Kuzmicz was a tenant of defendant Ivy Hill Park Apartments, Inc. (Ivy Hill), which owns an apartment complex in Newark. On the night of December 8, 1989, Kuzmicz was assaulted on a vacant lot owned by defendant Newark Board of Education (the Board). The lot is located between the complex and a grocery store owned by defendant Great Atlantic & Pacific Tea Company, Inc. (the A & P). The issue is whether under the circumstances of this case Ivy Hill owed Kuzmicz a duty to protect him by mending a bordering fence or warning him of the risk of assault on the Board's property.

The jury awarded Kuzmicz $175,000, apportioning liability: Kuzmicz twenty percent; the Board thirty percent; and Ivy Hill fifty percent. The Appellate Division affirmed. 282 N.J.Super. 513, 660 A.2d 1208 (1995). We granted Ivy Hill's petition for certification, 143 N.J. 322, 670 A.2d 1063 (1995), and now reverse.

I.

Seven to eight thousand people reside in the Ivy Hill apartment complex. Kuzmicz became a tenant in November 1986, approximately three years before the assault.

Adjacent to the Ivy Hill apartments is a seven-acre vacant lot owned by the Board. The lot was strewn with debris and overgrown with brush and trees. The lot was also the scene of occasional drug activity and other criminal conduct.

Ivy Hill built an eight foot high chain-link fence to separate its property from the lot. Over the course of several years, Ivy Hill repaired the fence three or four times. In 1987, the Board likewise repaired the fence.

On the opposite side of the lot, some 250 feet away, is a shopping plaza in which the A & P was a tenant. Ivy Hill did not own an interest in the plaza and derived no discernible economic benefit from it.

At approximately 7:30 p.m. on December 8, 1989, Kuzmicz and a friend were returning from the A & P to Kuzmicz's apartment. A lighted sidewalk runs from the shopping plaza to the apartment complex. Instead of using the sidewalk, they took a shortcut along a winding path through the unlighted and wooded lot. By cutting across the lot, tenants could reduce the walking time from ten to thirteen minutes to seven to eight minutes, a savings of three to six minutes. After Kuzmicz and his friend had crossed two thirds of the lot, assailants stabbed Kuzmicz, seriously injuring him.

Kuzmicz had used the path throughout his three-year tenancy. Starting the week after moving into his apartment, he walked on the path two or three times a week, sometimes at night. To gain access to the path, the tenants or someone else had cut an opening wide enough for two people to walk side-by-side through the fence. Kuzmicz testified that he did not know who owned the lot or whether anyone had been harmed while using the path. Furthermore, he stated that no one had ever told him not to use the path. He knew, however, that in 1988, the opening had been closed by the installation of a new section of chain-link fence.

To patrol the apartment complex, Ivy Hill employed a security force, which included Donald Karas, a Newark police officer. Karas had told some residents to use the lighted sidewalks, instead of the darkened path.

Klaus Mangold, the administrator of the apartments, was aware that tenants and employees used the path to go to the shopping plaza, which also employed Mangold as a rental agent and manager. On behalf of Ivy Hill, Mangold wrote to the mayor of Newark and the superintendent of schools, complaining of the Board's failure to maintain the lot, of criminal activity on it, and of vandalism to Ivy Hill's fence. In a letter of October 24, 1985, Mangold wrote, in part:

We are deeply disturbed by the condition of the vacant lot owned by the Board of Education of the City of Newark. This lot is between our back parking lot and the rear of the Ivy Plaza Shopping Center. Our fencing between the two properties is constantly vandalized by persons wishing to take a shortcut through the Board's property to the shopping center.

The lot is overgrown with weeds and brush, is full of garbage, has no lighting at night, is not patrolled by the police and provides shelter for vermin of all types. The path through the lot is an extremely dangerous area: there has been a murder and dozens of muggings, including three of our employees, as well as some of our tenants and visitors. The situation has grown progressively worse in the past week and shows no sign of being corrected.

He also suggested that if Newark could not patrol the property, the city should convey it to Ivy Hill. In a letter of May 19, 1989, Mangold again complained of the lot's condition, repeated Ivy Hill's interest in acquiring it, and expressed concern over the Board's failure to maintain and patrol the lot. Twice between 1985 and the date of the attack, Newark notified the Board of its failure to remove debris and cut the grass.

In the Law Division, Ivy Hill and the A & P each moved for summary judgment under Rule 4:46. One judge denied Ivy Hill's motion, but another judge granted the A & P's motion. In granting the A & P's motion, the judge reasoned that the A & P did not have a duty of care that extended beyond the store to the adjacent lot. The Law Division also granted summary judgment for Newark, but denied the Board's motion.

At trial, the court denied Ivy Hill's motion for an involuntary dismissal at the close of Kuzmicz's case. See R. 4:37-2. After the jury returned its verdict, the court denied Ivy Hill's motion for a judgment notwithstanding the verdict. See R. 4:40-2. The Board did not appeal.

The Appellate Division affirmed, holding that Ivy Hill had a duty of care to protect tenants from criminal activity on the Board's lot by warning them of that activity or by closing the gap in the fence. 282 N.J.Super. at 522, 660 A.2d 1208. The court recognized that it was making new law. Id. at 521, 660 A.2d 1208. Noting that Ivy Hill originally had "designed a gateway without a gate into the fence it erected," the court stated that "[t]he jury could have concluded that tenants justifiably viewed the open gateway as an invitation to use the path to access the Shopping Center." Ibid. This conclusion, coupled with Mangold's dual responsibilities, allowed the jury further to "conclude that Ivy Hill constructively appropriated the path to facilitate access to the Shopping Center." Id. at 522, 660 A.2d 1208. According to the court, from Mangold's dual employment, the jury could have inferred that Mangold had "an economic interest" in promoting and providing a shortcut to the plaza. Id. at 522-23, 660 A.2d 1208. Thus, the jury could have found that Ivy Hill had a duty to warn its tenants or close the gap by installing a "sturdy gate." Id. at 522, 660 A.2d 1208.

The Appellate Division also affirmed the grant of the A & P's motion for summary judgment, distinguishing the A & P from Ivy Hill. The court reasoned that as a tenant of the shopping plaza, the A & P did not have a duty to maintain a fence, id. at 523, 660 A.2d 1208, and that the evidence did not suffice to show that A & P knew of the criminal activity on the Board's lot. Id. at 523-24, 660 A.2d 1208.

II.

Against this background, we consider whether Ivy Hill owed Kuzmicz a duty to protect him from the risk of assault on the Board's property. Our analysis begins with the fact that Kuzmicz was injured on land that Ivy Hill did not own or control. The question is whether Ivy Hill owed Kuzmicz a duty to protect him by warning him of the risk of off-premises criminal assaults or by making more exhaustive efforts to seal the fence.

In the related context of the duty of landowners for injuries that occur on their premises, the analysis no longer relies exclusively on the status of the injured party. Instead "[t]he issue is whether, 'in light of the actual relationship between the parties under all of the surrounding circumstances,' the imposition of a duty on the landowner is 'fair and just.' " Brett v. Great Am. Recreation, 144 N.J. 479, 509, 677 A.2d 705 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438, 625 A.2d 1110 (1993)). For off-premises liability, the issue is substantially the same. In both contexts, however, the analysis is fact-sensitive. Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110.

Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292, 676 A.2d 1036 (1996); Crawn v. Campo, 136 N.J. 494, 501, 643 A.2d 600 (1994); Dunphy v. Gregor, 136 N.J. 99, 108, 642 A.2d 372 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583, 186 A.2d 291 (1962). Foreseeability of injury to another is important, but not dispositive. Snyder, supra, 144 N.J. at 292, 676 A.2d 1036; Carter Lincoln-Mercury, Inc. v. EMAR Group, 135 N.J. 182, 194, 638 A.2d 1288 (1994). Fairness, not foreseeability alone, is the test. Relevant to the determination of the fairness of the imposition of a duty...