Verdicts & Settlements - Negligent Security Lawsuit
$575,000 Negligent Security Settlement for Man Who Was Attacked at Fast Food Restaurant
A 44 year old first aid volunteer accepted $575,000 to settle a negligent security case against a fast food restaurant in Hudson County, New Jersey. On the day of the incident the plaintiff had been eating lunch with his mother and sister at a fast food restaurant. The restaurant had been known as a "hang out" for rowdy teenagers regularly associated with drugs, gang activity and violence. During the lunch, the teenagers had been acting up and using profanity in the restaurant. Management did nothing and the plaintiff asked them to calm down as he was with his elderly grandmother. Moments later the teenagers went outside the restaurant. Minutes after that the plaintiff left with his mother and sister and was stabbed in the eye with a filet knife by one of the youths while he was walking arm in arm with his mother coming out of the restaurant.
It is well settled under New Jersey law that business owners and landlords have a duty to protect patrons and tenants from foreseeable criminal acts of third parties. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 500, 516-17 (1997) (supermarket liable in negligent security for customer's murder after her abduction from parking lot); Butler v. Acme Mkts., Inc., 89 N.J. 270, 274 (1982) (supermarket liable to customer who was mugged in parking lot); Trentacost v. Brussel, 82 N.J. 214, 231-32 (1980) (imposing liability on landlord for failure to "take reasonable security measures for tenant protection on the premises"); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 371-72, 382-83 (1975) (holding landlord could be liable for burglary of tenant's apartment because landlord had breached duty of care by failing to provide functioning deadbolt lock).
When a landlord knows or should know of a pattern of criminal activity on his premises that poses a foreseeable risk of harm to his tenants and their guests and does not take reasonable steps to meet the danger, he cannot escape liability merely because the criminal act was committed by a third party who was not within his control. See Trentacost, 82 N.J. at 222; see also Taneian v. Meghrigian, 15 N.J. 267 (1954) at 281 (describing landlord's duty of reasonable care to protect tenants and their social guests against dangers in common areas); Scully v. Fitzgerald, 179 N.J. 114 (2004) (holding that landlord owes duty "to take reasonable steps to curtail the dangerous activities" on premises "of which he should be aware and that pose a hazard to the life and property of other tenants"); Williams v. Gorman, 214 N.J.Super. 517, 523 (App.Div.1986) (asserting that landlord has duty to protect tenant from other tenant's foreseeable criminal acts), cert. denied, 107 N.J. 111 (1987).
As the Court held in Clohesy, foreseeability does not require the existence of prior similar criminal incidents, but depends instead on an evaluation of the totality of the circumstances. Clohesy supra, 149 N.J. at 506-08. In this regard, the Supreme Court in both Butler v. Acme and Clohesy v. Food Circus adopted the Restatement (Second) of Torts Section 344, Comment (f) as a standard for determining in cases of injury by third persons "which criminal incidents may give rise to liability." Butler, 89 N.J. at 280; Clohesy, 149 N.J. at 506-07. The Restatement articulates the duty owed by a proprietor of premises to those who enter the premises as follows:
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 intentionally harmful acts of third persons or animals, and by the failure of the possessor 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 at 223-234 (1965). The official comment states:
f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of the third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
Restatement (Second) of Torts, § 344 at 225-226, Comment (f) (1965). See also, e.g., J.S. v. R.T.H.155 N.J. 330 (1998) at 338; James v. Arms Technology, Inc., 359 N.J.Super. 291, 324 (App.Div.2003); Morris v. Krauszer's Food Stores, 300 N.J.Super. 529, 535 (App.Div.1997); Gaita v. Laurel Grove Cemetery Co., 323 N.J.Super. 89, 94-96 (Law Div.1998). The Supreme Court has embraced a liberal negligent security standard as a matter of public interest. Butler, 89 N.J. at 280 (imposing duty because store is in the best position to provide either warnings or adequate protection for its patrons and because the public interest lies in providing a reasonably safe place for a patron to shop).
For example, in Butler, 89 N.J. 270 (1982), the plaintiff customer was assaulted in the parking lot after having just finished shopping at the defendant supermarket. The plaintiff contended Acme was negligent in failing to provide a safe place in which to shop and park. Id. at 274. The area had a history of criminal activity, including 7 muggings over the course of a year. Additionally, although Acme had hired off-duty police officers to supply security for the Acme market on certain evenings, only one security officer was on duty inside the store at the time of the attack. Moreover, no signs or warnings were posted advising the patrons of the possibility of criminal attack. Id. at 274-75.
The Supreme Court held that Acme owed a duty of reasonable care to safeguard its business invitees from criminal acts of third persons. Id. at 280. It was reasonable for the jury to determine that absent warnings, hiring one guard who primarily remained inside the store was an insufficient response in light of the known, repeated history of attacks on the premises. Id. The Court further held that Acme as the business invitor is in the best position to provide either warnings or adequate protection for its patrons when the risk of injury is prevalent under certain conditions, and the public interest lies in providing a reasonably safe place for a patron to shop. Id. at 284.
As is typically the situation in these types of negligent security cases, the criminal assailant went to jail, had no insurance and obviously could not satisfy a judgment in the case. The tactic used by the restaurant to avoid it responsibility to make sure its premises is safe was to point the finger at the criminal assailant as being responsible for plaintiff's severe injuries. The law recognizes that in negligent security cases of this type, if a jury were permitted to allocate percentage fault for damages against the judgment proof third party criminal assailant, that it would likely allocate the majority of fault to that third party. This would operate to permit the business entity to escape liability for failing to meet its duty to take reasonable security measures and would cause the plaintiff to not be compensated for the injury, contrary to cases such as Butler v. Acme Markets, Inc. and Clohesy v. Food Circus. Thus the Supreme Court has established the rule that, under the appropriate factual circumstances, where the duty of one tortfeasor encompasses the obligation to prevent the specific misconduct of the other, then there should be no allocation of fault and the proprietor can be held liable for the entire judgment. In other words, where the criminal act in question was foreseeable, and the proprietor had a duty to take reasonable measures to prevent it, then there shall be no allocation of percentage fault to the judgment proof criminal assailant.
Keefe Bartels & Clark lawyers filed a motion for the court to find as a matter of law that under the facts of this case, there should be no percentage allocation to the judgment proof criminal. This legal tactic was instrumental in achieving a substantial settlement with the restaurant's insurance company for the severely injured plaintiff. Had the restaurant met its legal duty to make its restaurant safe and not allow the rowdy teenagers to harass the patrons, the plaintiff never would have lost his eye.
For more information or to speak with an experienced New Jersey negligent security lawyer, contact Keefe Bartels & Clark LLC.
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