Since 1997, New Jersey has shifted its standards for determining a property owner’s duty to a victim of a crime on its property to the much broader “totality of the circumstances.” In Clohesy v. Food Circus Supermarkets, Inc., the New Jersey Court adopted the totality of the circumstances analysis as set forth in the Restatement (2 nd ) of Torts §344 Comment F (1965). This standard encompasses all matters considered by “a reasonable prudent person” and incorporate fairness considerations for imposing the duty, including foreseeability of the third-party conduct, and “whether the premise owner exercised reasonable care under the circumstances.” Id. In adopting this analysis, the Court held that the foreseeability of crime on the property was crucial, although not dispositive, element, which subsumes many of the concerns acknowledged to impose this duty.
This decision in 1997 basically broadened the previous rule and imposed upon landowners a duty to victims when the landowners could reasonably foresee a crime could occur on its property. Once it is foreseeable, reasonable security methods must be established to protect a plaintiff from a would be assailant.
Clohesy involved an abduction and murder of a 79-year- old woman from a shopping center parking lot. The Court held that it was sufficiently foreseeable that an individual would enter in a parking lot and assault a customer, given that there were approximately 60 criminal incidents on or near the premises over a 2 ½ year period preceding the abduction. The Court concluded that these criminal incidents escalated in nature and became a “high crime” status associated with parking lots nationwide. Surprisingly, there were no other previous abductions or murders in that shopping center parking lot.
This has led to a position taken by many plaintiffs’ counsel that any crime could be foreseeable once criminal statistics show other unrelated crimes in the area. Basically, the criminal statistics would show that there were crimes against other people in the area and are placing the landowner on notice of criminal activity.
Significantly, in two recent decisions, the Appellate Court has scaled back this analysis. Initially, in Peguero v. Tau Kappa Epsilon, the Appellate Court in 2015 extinguished the Court’s foreseeability argument in Clohesy and held it was not reasonably foreseeable that an unknown third-party would shoot a guest during a social gathering at a fraternity house in the absence of a previous pattern of criminal conduct on or near the premises. In assessing the totality of the circumstances, the Appellate Court found that the relationship between the parties and the shooter was transitory and there was no proof that the fraternity defendants had any particular knowledge of the unknown assailant. Moreover, and in contrast of a significant statistical proof or prior criminal activity presented in Clohesy, the Court found that the record was devoid of any alarming data relating to the prior incidents around the house. This unfortunate shooting was noted as a random act of violence.
In a more recent decision, Higgins, et al. v. Holiday Inn & Conference Center, the Appellate Division decided in 2017 to affirm a summary judgment motion denying that Holiday Inn had a legal duty owed to the plaintiffs as a result of this shooting.
The facts in this case was that between February and July 2010, plaintiff, in his capacity as a disc jockey, hosted and performed a weekly “Caribbean Night” event held at the Holiday Inn located in Edison, New Jersey. On July 11, 2010, at approximately 3:00 a.m., plaintiffs were outside the Holiday Inn smoking when an unidentified masked gunman approached, shot and wounded them. In this unreported decision, the Court discerned that in the ten-year period from July 2, 2000 to the date of the incident, there were no reported shooting incidents at the Holiday Inn. There were other crimes including fights and thefts, but not to an alarming number.
The Court, in viewing the evidence in a light most favorable to the plaintiffs, were unpersuaded by the totality of the circumstances presented giving rise to a duty to the Holiday Inn to take reasonable precaution to protect them from the incident; citing to “a random act of violence perpetrated outside the inn.”
These line of cases breathe new life into the defense of a negligent security claim and show an additional defense in the arsenal of the landowners if the facts truly present a random act of violence.