Morris v. Krauszer's Food Stores, Inc.

• Decision Date: 09 May 1997
• Citation: 300 N.J.Super. 529,693 A.2d 510
• Parties: , 65 USLW 2800, 12 IER Cases 1444 Robert P. MORRIS, Individually and as General Administrator and Administrator Ad Prosequendum of the Estate of Aileen D. Morris, deceased, and as Guardian Ad Litem of Robert Peter Morris, Jr., Renee Patricia Morris, Beverly Dorothy Morris, Yvette Margaret Morris, Robyn Pearl Morris, Shawn Edgar Donelson, and Douglas Hector Donelson, Infants, Plaintiff-Respondent, v. KRAUSZER'S FOOD STORES, INC., Krauszer's Realty Co., Inc., Krauszer's Dairy, Inc., Garden State Farms, Mironov Brothers, a N.J. Partnership, Covered Bridge, Inc., John Does 1 through 5, and John Does, Inc., 1 through 5, Defendants, and Convenience Management Services, Inc., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 529

300 N.J.Super. 529

693 A.2d 510, 65 USLW 2800, 12 IER

Cases 1444

Robert P. MORRIS, Individually and as General Administrator and Administrator Ad Prosequendum of the Estate of Aileen D Morris, deceased, and as Guardian Ad Litem of Robert Peter Morris, Jr., Renee Patricia Morris, Beverly Dorothy Morris Yvette Margaret Morris, Robyn Pearl Morris, Shawn Edgar Donelson, and Douglas Hector Donelson, Infants, Plaintiff-Respondent, v. KRAUSZER'S FOOD STORES, INC., Krauszer's Realty Co., Inc. Krauszer's Dairy, Inc., Garden State Farms, Mironov Brothers, a N.J. Partnership, Covered Bridge, Inc., John Does 1 through 5, and John Does, Inc., 1 through 5, Defendants and Convenience Management Services, Inc., Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 28, 1997

Decided May 9, 1997.

Paul A. Lisovicz, Morristown, for defendant-appellant (McElroy, Deutsch & Mulvaney, attorneys; Mr. Lisovicz, on the brief).

Ronald B. Grayzel, Edison, for plaintiff-respondent (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Laura M. LeWinn, on the brief).

Before Judges PRESSLER, HUMPHREYS and WECKER.

The opinion of the court was delivered by

HUMPHREYS, J.A.D.

Aileen Morris, a mother of nine children, was shot to death by a robber in 1989 while working as a clerk at a Krauszer's convenience store. The store was owned by defendant Convenience Management Services, Inc. ("CMSI") and operated by Dairy Stores. The jury returned a verdict against CMSI.

CMSI appeals, contending: (1) it had no duty under the facts to protect the decedent against the criminal acts of others; (2) it was immune from liability under the workers' compensation act; (3) the damage award was excessive; (4) the jury charge was inaccurate; (5) a jury interrogatory was improper; (6) certain evidence should not have been admitted; and (7) newly discovered evidence requires a limited remand for consideration of a R. 4:50-1 motion.

We have thoroughly reviewed the record and considered the arguments presented. We conclude that under the facts in this case CMSI had a duty to protect the decedent against the criminal acts of others. Whether that duty was breached was properly presented to the jury. The judgment is affirmed.

I

The murder occurred in the late morning. The store was located on Alston Road in Kendall Park, about one-tenth of a mile from Route 27. Across the street from the store was a strip mall. Behind the store was a hilly tract of undeveloped land with numerous paths used by motorcyclists and bicyclists. On the morning of the murder, the store had a steady flow of customers.

CMSI contends that it owed no duty to Morris because the armed robbery and shooting were not foreseeable. The robbery occurred in the daylight hours. CMSI contends that no evidence was presented that the area was a high crime area or that the store had previously been robbed.

The existence of a legal duty is "generally considered" a question of law for the court to decide. Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996). In a recent case, the New Jersey Supreme Court said:

Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Foreseeability of injury to another is important, but not dispositive. Fairness, not foreseeability alone, is the test. Relevant to the determination of the fairness of the imposition of a duty on a landowner is the nature of the risk, the relationship of the parties, the opportunity to exercise care, and the effect on the public of the imposition of the duty.

Consistent with that analysis, we have found a landlord liable to a tenant for damages resulting from a burglary when the landlord failed to replace a broken dead-bolt lock on the tenant's apartment....

We likewise have imposed liability on a landlord who provides inadequate security for common areas of rental premises for the failure to prevent a criminal assault on a tenant....

Similarly, we have held that the owner of a supermarket may be liable to a customer who is mugged at night in the market's parking lot....

Uniting [these decisions] is the premise that landlords and business owners should be liable for foreseeable injuries that occur on their premises. The underlying rationale is that they are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm.

[Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515-17, 688 A.2d 1018 (1997) (citations omitted) (emphasis added).]

The duty of the owner or possessor of land to protect business invitees from foreseeable harm is well established. The Supreme Court has held that the determination of whether the business owner has breached that duty is a jury question. Butler v. Acme Markets, Inc., 89 N.J. 270, 280, 445 A.2d 1141 (1982).

The Restatement (Second) of Torts is in accord with the above principles. Section 344 of the Restatement provides:

[a] possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentional harmful acts of third parties or animals, and by the failure to possess or to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

[Restatement (Second) of Torts § 344 (emphasis added).]

An employee of a business operated on the premises is a member of the public for the purposes of section 344 of the Restatement. The decedent was an employee of Dairy Stores, a subsidiary of CMSI. As such, she is considered a business invitee and thereby falls within the class of persons to whom the owner or lessor of the premises owes a duty. See Restatement (Second) of Torts, § 332(3) & cmt. (j).

In determining the foreseeability of criminal attack, some courts have adopted the prior similar incidents rule or a variation thereof. See Clohesy v. Food Circus Supermarkets, Inc., 293 N.J.Super. 217, 221, 679 A.2d 1230 (App.Div.1996). Other courts have adopted the totality of circumstances approach. See id. at 235-39, 679 A.2d 1230 (Humphreys, J.A.D., dissenting) (citing numerous authorities which adopt this approach and reject the "prior similar incidents" rule).

We conclude for the reasons expressed in the dissenting opinion in Clohesy that "[t]he totality of circumstances approach best accords with the fundamental purposes of tort law as set forth in Butler and exemplified by the 'solid and growing national trend' of authority." Clohesy, supra, 293 N.J.Super. at 243, 679 A.2d 1230 (dissenting opinion) (quoting Sharp v. W.H. Moore, Inc., 118 Idaho 297, 796 P.2d 506, 510 (1990)).

Applying the totality of circumstances standard, we find that under the facts of this case the trial judge properly concluded that a criminal incident was foreseeable and therefore, a duty existed to provide a reasonable measure of protection for employees at the store. Substantial evidence was presented as to the foreseeability of a criminal incident. Plaintiff presented the testimony of an expert in the security field, and the testimony of a former employee at other Krauszer's stores. The expert testified about the inherent risk of robbery and violent crime in the convenience store business. He presented FBI statistics which showed a dramatic increase in convenience store robberies nationwide from 29,000 in 1987 to 36,000 in 1989, with 623 of the 1989 robberies occurring in New Jersey. He concluded that convenience stores in New Jersey in 1989 were at risk for robberies and crimes of violence. Police reports were introduced into evidence documenting eight robberies in 1988 and 1989 at various Krauszer's stores in other central New Jersey towns.

Plaintiff's expert testified that numerous security measures should have been in effect at the Krauszer's stores. A drop safe should have been installed so that only a minimal amount of cash would be in the register at any time; interior visibility should have been enhanced; registers should have been prominently positioned; security devices such as alarms should have been installed; clear lines of sight to make a robber visible from the outside of the store should have been created; measures to encourage activity around the store should have been implemented; escape routes should have been altered; balanced lighting between the outside and the inside of the store should have been established; and employees should have been trained on security measures.

The Kendall Park Krauszer's store had a drop safe but it lacked a prominently displayed announcement which would alert robbers that there would be no more than a minimal amount of cash in the register. The expert found that there were posters on the store's windows which obscured the view of the top half of the interior and blocked the natural lighting. The poor lighting made the interior of the store too dark to be clearly visible. He testified that the clear access to paths through the undeveloped land at the rear of the store would provide ample escape routes for a robber.

The expert also stated that: an alarm system should have been installed to notify the police to respond when an employee activated the alarm; a clearly visible closed circuit television focused on the area of the register and a barrier to protect the employees should have been installed. According to the expert, the store had "rob me" written all over it. "Security measures," he said, "were a way of deterring criminals so the crime would not occur."

A former employee of Dairy Stores testified that she had worked four or five months in a Krauszer's store in another municipality in New Jersey and that she had never received training on what to do if the store was...