Daily Development for
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
LANDOWNER LIABILITY; LIABILITY FOR CRIMINAL ATTACKS: A business owner may be liable to employees
and others for criminal acts occurring on the sidewalks adjacent to or leading
to the business' property. Zepf v. Hilton
Hotel & Casino, 786 A.2D 154 (N.J. Super. App. Div. 2001).
A casino employee was assaulted by a robber on the sidewalk
adjacent to the casino as she left work to go home in the early morning
hours. The casino contended "that
it owed no duty to provide surveillance and security patrols on a public
sidewalk it does not own or control and that if it owed such a duty, it
satisfied the duty by providing a shuttle bus to a secure parking
lot." The casino provided a remote
employee parking lot that was guarded and fenced. Employees were taken to and from that lot
every fifteen minutes.
Located right next to one of the casino's facilities was a private parking lot,
not connected to the casino's business.
The plaintiff employee parked her car in that lot, although she was
aware of the remote employee lot and the shuttle service. According to her, she never used the remote
lot because it added forty minutes to her trip to and from work. She was also concerned that the remote lot
was often flooded, as was the street on which it was located and that
"street people hung around the area where the shuttle departed." Other employees used the private parking lot
as well. Employees were not required to
use the shuttle bus or the employee lot.
The casino never directed or recommended use of the private parking
lot. However, the casino never told its
employee of any risks of using the sidewalk to get the private lot or that the
private lot was not safe. In fact,
according to the employee, she believed that walking along the sidewalk a
distance of 153 feet from the casino was safe.
The casino's security manual provided that its security
force was to "periodically check [the property's] perimeters." The security force did so both by foot patrol
and with closed circuit television surveillance. It did not, however, provide building patrols
or camera coverage along the sidewalk in question,
believing that security for the sidewalks was the responsibility of the
municipal police department. As a
result, the casino did not obtain any crime statistics regarding the level or
types of criminal activity which occurred around its property.
The employee's expert testified that there was a foreseeable
risk of crime being committed on people on public streets in the area adjacent
to the casino's property, "given the nature of the casino business, i.e.,
a lot of visitors with large amounts of cash... ." He opined that, given the absence of security
along the sidewalk in question, the employee was more at risk walking to the private lot than
in other areas around the casino's property.
Further, he opined that the casino failed to comply with its own
security manual, "in that all of the property's perimeters were not
routinely checked." Further, there
was sufficient evidence for a jury to infer that the casino "was aware or
should have been aware that some of its employees did not use the shuttle bus
and remote employee parking lot, but instead used the [private parking lot]
located 153 feet away from the employee exit and entrance...
."
The lower court applied a "totality of the
circumstances" and concluded that, as a matter of law, the casino owed a
duty to provide security for its employees along the sidewalk in question. It also ruled that the casino "received
an economic benefit from individuals using the sidewalk to get to its
casino," and held that it was for the jury to decide whether the casino breached the
duty owed to its employee.
The Appellate Division agreed. It reviewed cases including one where
"an abutting commercial landowner [was] liable for injuries to a
pedestrian caused by a dilapidated sidewalk, if the owner failed to maintain
the sidewalk in good condition." It
also reviewed a case where a supermarket customer was assaulted in the store's
parking lot. Further, it reaffirmed the
principle that a "proprietor of a business to which the public is invited
owes a duty of reasonable care to those who enter the premises to provide a
reasonably safe place to do that which is in the scope of the invitation." This premise was extended to another case
where a patron of a catering hall was forced to park across the street from the
catering hall because the hall's parking lot was full. When that patron was killed crossing the
street, an appellate court ruled that "although a landowner's duty
generally applies to those who come onto the land, it can be extended beyond
the property. ... Thus, the defendant had a duty to provide a reasonably safe
passage for its patrons crossing a highway to reach the business." Consequently, after reviewing those cases and
many others, the Court, held that "balancing and weighing these factors,
[the casino] owed a duty to [its employee].
Clearly, [the casino] obtained an economic benefit from [its employee's]
work activities in [the casino]."
The Court discerned no difference between an employee and a casino patron.
The casino also asserted that even if it owed a duty to its
employee, "it satisfied that duty as a matter of law by providing a free
employee shuttle bus to its secure employee parking lot." The Appellate Division disagreed. The Court was influenced by the fact that use
of the shuttle bus was not mandatory.
Moreover, it held that an "inference could be drawn that [the
casino] was aware or should have been aware that some of its employees did not
use the shuttle bus and employee lot, but instead used the [private
lot]." The security manual did not
mention the shuttle bus. In fact, the
shuttle was not part of the casino's security efforts. For those reasons, the Court disregarded the
casino's defense.
Comment: It is
difficult to identify "trends" in this constantly shifting area of
the law. But it does seem that courts
are more willing to undertake elaborate "totality of the
circumstances" analysis, while still retaining control over the issues by
viewing them as questions of law. Hence, the court here was unwilling to
conclude that a the property lien served as the limit
of the casino's liability, or that the absence of prior criminal attacks
eliminated any duty to protect against such attacks where there was some basis
to believed that the casino's business itself generated some risk.
In the editor's view, there would be much good served by
clearer line drawing in these areas. The
consequence of the "totality of the circumstances" test is that all
landowners have potential liability for all third party criminal attacks, meaning that either their insurance costs or their
security costs soar. Note that if a
landowner does undertake to protect against criminal attack, it undertakes potential
liability for doing so inadequately even if it might have had no duty to
protect in the first place.
Bad things happen. Is it appropriate to make landowners guarantors of safety from criminal attack? If that task lies anywhere, shouldn't it lie with the public at large, particularly on public property?
Readers are urged to respond, comment, and
argue with the daily development or the editor's comments about it.
Items in the Daily Development section
generally are extracted from the Quarterly Report on Developments in Real
Estate Law, published by the ABA Section on Real Property, Probate & Trust
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