Daily Development for
Tuesday, November 4, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANTS; CRIMINAL ATTACKS: Landlord of apartment complex owes no duty to tenant to protect him from criminal assault on vacant lot adjacent to complex, whether by warning of risks or by making more efforts to mend fence separating the areas, where landlord does not own the vacant lot and had no control over it, landlord received no economic benefit from path across lot to nearby shopping center, and landlord provided exit to public sidewalk.

Kuzmicz v. Ivy Hill Park Apartments, et.al., 688 A.2d 1018 (N.J. 1997).

This case is a 4-3 decision overruling a contrary ruling by the Appellate Division and trial court. Both majority and dissenting opinions are heavily annotated with case law from New Jersey and other jurisdictions and provide a interesting record of the differing points of view on the issue.

The case involves a criminal attack on a "short cut" across a vacant lot between an apartment complex and the local A&P. The short cut reduced the travel time between market and home by about five minutes. The alternative route was a lighted sidewalk. The landlord had erected a chain link fence blocking access from the short cut, but tenants had twice cut holes in the fence. The landlord had regularly sought assistance from the local school board, which owned the lot, to maintain it and keep it safe, and even offered to buy the lot, but all to no avail.

Clearly the landlord was aware of the danger inherent in the lot and of the possibility of criminal attacks there. Tenant was injured in a criminal attack while returning from the market in the early evening. Tenant testified that he was not aware of any special danger.

The jury below awarded damages of $175,000, finding the landlord 50% liable, the school board 30% and the tenant 20% responsible for the injury.

The technical difference between the majority and the dissent lies in the majority's conclusion that the landlord derived no economic benefit from the tenants' use of the short cut. The majority admitted that New Jersey law did impose a duty on a landowner for injuries to patrons or tenants on nearby premises when the landowner derived an economic benefit from the use of that premises, such as when it was aware that patrons used a nearby lot to park their cars when frequenting the landowner's business. Here, however, the court held that, as a matter of law, the landlord derived no economic benefit from the tenant's use of the short cut.

Clearly the Supreme Court could have taken a different view of these facts, since the short cut arguably made the tenant's lives easier when living in the landlord's apartments, and therefore made the apartments easier to rent. By finding as it did, the court clearly narrowed the range of cases in which plaintiffs could recover for off premises injuries, and the dissent clearly noted this fact and railed about it. The dissent's view is that the issue of whether the landlord responded properly here was a question of fact, and that the Supreme Court had no business carving out special legal exceptions from what ought to be a logical, fact based inquiry into reasonableness of the landlord's behavior.

Comment: Most other courts also have shown reluctance to open a "Pandora's Box" of liability by permitting juries to consider cases involving injury on premises other than the landowner's own land. In one interesting diad in California, one case held that a landlord was liable for a tenant when gangs congregating on his premises attacked the tenant in the tenant's apartment, while another case held that a fast food operator was not liable when gangs congregating on his premises chased the plaintiff, whom they suspected of being a rival gang member, into a nearby lot and murdered him. Compare Zuniga v. Housing Authority, 48 Cal. Rptr. 2d 353 (Cal. App. 1995) with Medina v. Hillshore Partners, 46 Cal. Rptr. 2d 871 (Cal. App. 1995) (DD for 3/28/96).

For cases in which there arguably was "economic benefit" to a landowner but no duty found, see Palmer v. Prescott, 617 N.Y.S.2d 411 (N.Y. App. Div. 1994) (dangerous conditions in vacant lot where restaurant patrons parked); Shive v. Ferdinando, 555 A.D. 2d 573 (Sup. Ct. 1990) (criminal attack in parking lot in which lounge operator had use rights, but no control.)

Also, compare Parker v. Singer, 608 N.Y.S. 2d 680 (N.Y. App. Div. 1994) (no liability for condition of sidewalk adjacent to premises) with Alcaraz v. Vece, 60 Cal. Rptr. 2d 488 (Cal. 1997) (landlord's liability for faulty cover on water meter box on city land surrounded by landlord's rental property.)

Another interesting case is Banks v. Hyatt Corp., 722 F.2d 214 (5th Cir. 1984) (hotel operator liable for death of guest shot by armed robber four feet from doors of hotel underneath and overhang that was actually the second floor of the hotel complex.)

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