Daily Development for
Monday, January 25, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Thanks to DIRTer Vicki Morrison at Riker Danzig in New Jersey for this one.

LANDOWNER'S LIABILITY; CRIMINAL ATTACKS; LIABILITY FOR INJURY ON ADJACENT PREMISES: Public landowner defendant liable when gate on its property permits access to area not owned by defendant where criminal attack occurs.

Mary Jane Roe v. New Jersey Transit Rail Operations, Inc., A88397T1 (N.J. App. Div. 12/24/98) (unpublished opinion).

Plaintiff, a twelve year old girl, was sexually assaulted in a secluded area of a public park while walking to a swimming pool in the park. This area of the park, beneath a highway underpass, was an area in which criminal attacks had occurred in the past because of the ease by which criminals could escape through the park grounds. Plaintiff alleged that defendant was aware of the reputation of the area for criminal attacks.

Plaintiff accessed the pathway to the swimming pool by passing through a gate in a fence on defendant's property adjacent to defendant's transit station. The fence was a separator between the tracks and the park grounds. Prior to its erection, children had walked along the tracks and then crossed through the park to the swimming pool. The gate was designed to permit defendant's employees to move easily to defendant's property on either side of the gate. Some time before, the defendant had bolted the gate into an open position. Apparently this was because children frequently passed through the gate to get to school or to get to the park, and the gate was at a point where the students could pass through without walking along the tracks. In deposition defendant's employee admitted it was possible a transit passenger might pass through the gate.

The trial court granted summary judgment to defendant on the grounds that defendant was not liable under the state tort claims act (which requires "palpable negligence" for liability) when the plaintiff's injury did not occur on defendant's premises.

On appeal: Held: Reversed. Summary judgment was inappropriate because defendant can be liable for off premises injuries caused by dangerous conditions on its own premises and its bolting the gate open could be construed as an act of "palpable negligence."

The gate was not mechanically defective, but its very existence, under conditions where defendant knew that children would use it to access the park, made it a "dangerous condition."

The court commented that the plaintiff "enjoyed an incidental benefit" in bolting the gate open because it might have accommodated transit passengers who wished to go to or from the park at that location.

Comment 1: It appears that some length of the defendant's tracks paralleled the park property. Had there been no fence, children could have passed over the property at any point. It is difficult to imagine that the defendant would have owed a duty to them to build a fence. But unless the gate actually made the situation more dangerous (nothing in the court's opinion so suggests), isn't the holding here tantamount to saying that landowners owe a duty to strangers to fence their property from dangerous conditions on adjacent ground?

Is this a desirable rule to have? It is the kind of "liability from proximity" that seems to be present in federal environmental statutes; but is it an appropriate decision for a common law court to reach?

Comment 2: This case may be explained by the theory that if the defendant elected to do anything about persons crossing its property to get to the park, it had to do things right - which would have been to take into account the fact that crossing into that part of the park was dangerous. The opinion, however, smacks of "liability for adjacency," a concept which gives the editor shudders whether it arises in environmental cases or in tort cases.

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 Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1 - 6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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