Lieberman v. Port Authority of New York and New Jersey

• Decision Date: 14 April 1993
• Citation: 132 N.J. 76,622 A.2d 1295
• Parties: Belle LIEBERMAN, Plaintiff-Appellant, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a body corporate and politic, Defendant-Respondent, and Charles Sherod, Third-Party Defendant.
• Court: New Jersey Supreme Court

Page 76

132 N.J. 76

622 A.2d 1295

Belle LIEBERMAN, Plaintiff-Appellant, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a body corporate and politic, Defendant-Respondent and Charles Sherod, Third-Party Defendant.

Supreme Court of New Jersey.

Argued Jan. 4, 1993.

Decided April 14, 1993.

Alan L. Krumholz, Jersey City, for appellant (Krumholz, Horn, Shechtman, Hirsch, attorneys).

Hugh H. Welsh, New York City, for respondent (Mr. Welsh, attorney; Donald F. Burke, Brick, on the brief).

Alexander P. Waugh, Jr., Trenton, for amicus curiae Atty. Gen. of New Jersey (Robert J. Del Tufo, Atty. Gen., attorney; Sarah E. Fitzpatrick, Deputy Atty. Gen., on the letter brief).

Thomas S. Higgins, Laurel Springs, submitted a brief for amicus curiae Delaware River Port Authority (Higgins, Slachetka & Long, attorneys; Mr. Higgins, Howard C. Long, Jr., and Peter J. Bonfiglio, III, on the brief).

The opinion of the Court was delivered by

GARIBALDI.

We granted certification, 130 N.J. 14, 611 A.2d 652 (1992), to review the Appellate Division's determination that plaintiff's complaint did not state a cause of action against the Port Authority of New York and New Jersey ("Port Authority"). Plaintiff seeks recovery from the Port Authority for injuries she sustained when she was robbed and injured by a homeless man in the Port Authority Bus Terminal in New York City ("Terminal"). The trial court denied the Port Authority's motion to dismiss, holding that because the Port Authority had its own police force, it was liable for failure to provide adequate police protection. The Appellate Division reversed and held that the activities for which plaintiff sought to hold the Port Authority liable stemmed directly from its failure to allocate police resources. 254 N.J.Super. 456, 603 A.2d 983 (1992). Because New York and New Jersey law preclude recovery for failure to provide police protection absent a special relationship, the Appellate Division dismissed plaintiff's complaint.

Courts should approach motions to dismiss for failure to state a cause of action pursuant to Rule 4:6-2(e) with caution. Because such motions are usually brought at the earliest stages of litigation, they should be granted in "only the rarest instances." Printing Mart v. Sharp Elecs., 116 N.J. 739, 772, 563 A.2d 31 (1989). In deciding whether to dismiss a complaint for failure to state a cause of action, courts should search the complaint

"in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." At this preliminary stage of the litigation the Court [should not be] concerned with the ability of plaintiff[ ] to prove the allegation contained in the complaint. [P]laintiffs are entitled to every reasonable inference of fact. The examination of a complaint's allegation of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.

[Id. at 746, 563 A.2d 31 (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J.Super. 244, 252, 128 A.2d 281 (App.Div.1957)) (citations omitted).]

Applying those principles, we conclude that plaintiff's complaint states a cause of action. Although the Appellate Division correctly ruled that plaintiff may not maintain a cause of action for the Port Authority's failure to provide police protection, plaintiff's complaint, read broadly, also alleges a claim that the Port Authority, in its capacity as a landlord, negligently failed to take reasonable non-police-protection security measures to make the Terminal a reasonably safe place for commuters and other invitees.

I

On February 1, 1989, at 8:10 a.m., Charles Sherod, a homeless man, knocked down plaintiff, Belle Lieberman, and stole her purse as she walked out of Zaro's Bakery in the Terminal. Immediately thereafter, a Port Authority police officer arrested Sherod. Plaintiff, a sixty-six-year-old commuter from North Bergen, New Jersey, sustained a compression fracture of the lower back and sprained her wrist and shoulder.

On January 22, 1990, plaintiff filed an action against the defendants, Port Authority of New York and New Jersey and the perpetrator, Charles Sherod, ¹ seeking damages for the assault. In her complaint plaintiff made the following claims: that defendant had a duty to exercise reasonable care to provide a reasonably safe place for business invitees and travellers; that defendant had permitted homeless people to inhabit the premises even though they were not business invitees, and even though they "represented a threat and hazard"; and that defendant continuously had failed to provide adequate police protection and security measures for the safety of its business customers and travellers.

On October 29, 1990, plaintiff sent defendant a Notice to Produce, among other things, ten years' worth of crime statistics and reports of the Port Authority's plans regarding the homeless. On June 17, 1991, the trial court granted an order requiring defendant to comply with the Notice to Produce and allowing the use of an employee's deposition taken in another Port Authority action regarding the homeless; however, to date, plaintiff has not been provided with any discovery.

Defendant denied liability and moved to dismiss plaintiff's complaint for failure to state a cause of action. The trial court, in an unpublished letter opinion, held that the Port Authority "is subject to liability for the negligent omissions of any precautions which a reasonably prudent law enforcement officer could take." Although the court found that the Port Authority owes a duty of care to invitees, it did not elaborate on the scope of due care required. Rejecting the Port Authority's claim of governmental immunity, the court called defendant a "grand landlord" that is "subject to the same liability as any other property owner." The court denied a motion for reconsideration.

The Appellate Division reversed. That court rejected plaintiff's attempts to frame her claim as a failure of a landlord or common carrier to provide reasonably safe premises for invitees. Although plaintiff stressed that the failure to provide adequate police protection was only one of her causes of action, the Appellate Division, like defendant, focused solely on that issue. The court held that the Port Authority's maintenance of a police force did not automatically subject it to liability for failure to provide police protection, and that absent a special relationship, plaintiff had no cause of action. 254 N.J.Super. at 460, 603 A.2d 983.

We granted plaintiff's petition for certification, 130 N.J. 14, 611 A.2d 652 (1992), and now reverse because the Appellate Division erroneously construed plaintiff's complaint as one alleging only a failure to provide police protection. We hold that plaintiff's complaint, when read generously, states a cause of action.

II

The Port Authority controls Newark, Teterboro, Kennedy, and LaGuardia Airports; two heliports; seven marine terminals; three industrial parks; the World Trade Center; the PATH train system; the Lincoln and Holland Tunnels; the Bayonne, Goethals, and George Washington Bridges; the Outerbridge Crossing; and the Terminal.

In 1921, New York and New Jersey signed a compact establishing the Port Authority as a joint and common agency of the two states. N.J.S.A. § 32:1-1 (West 1992); N.Y.Unconsol.Laws § 6401 (McKinney 1992). The legislatures of the two states maintain control of the Port Authority, and in 1946 authorized construction of the Terminal for "the accommodation of buses and other motor vehicles operated by carriers engaged in the transportation of passengers for the loading, unloading, interchange or transfer of such passengers or their baggage, or otherwise for the accommodation, use or convenience of such passengers or such carriers or their employees." N.J.S.A. § 32:2-23.1; N.Y.Unconsol.Laws § 6701. The Act further provided that

[t]he establishment, maintenance and operation of such motor bus terminal within the Port of New York district is and will be in all respects for the benefit of the people of the States of New Jersey and New York, for the increase of their commerce and prosperity and for the improvement of their health and living conditions; and the Port Authority shall be regarded as performing an essential governmental function in undertaking the construction, maintenance and operation thereof and in carrying out the provisions of law relating thereto.

[ N.J.S.A. § 32:2-23.3; N.Y.Unconsol.Laws § 6704 (emphasis added).]

Although the Port Authority serves a governmental function, it is not immune from suit. In 1951, the Port Authority statutorily consented to suit, and thus it is not subject to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. Williams v. National Car Rental Sys. Inc., 225 N.J.Super. 164, 168, 541 A.2d 1125 (Law Div.1988) ("The broad powers conferred upon the Port Authority leave no doubt that it is a * * * public [entity]. Even so it is clear that the Tort Claims Act does not apply * * *.").

The statute providing consent to liability states in relevant part Although the Port Authority is engaged in the performance of governmental functions, the said two States consent to liability on the part of the Port Authority in such suits, actions or proceedings for tortious acts committed by it and its agents to the same extent as though it were a private corporation.

[ N.J.S.A. § 32:1-162; N.Y.Unconsol.Laws § 7106 ("consent statute") (emphasis added).]

The legislative history provides no indication of the scope of the consent to suit; however, the language permitting suits as though the Port Authority were a private corporation is broader in scope than that used for many other agencies. Many statutes give agencies the power to "sue and be sued." See, e.g., N.J.S.A. 32:3-5 (West 1992) (Delaware River Port Authority);...