ROBERT ERIANNE v. SUBURBAN GOLF CLUB

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0726-08T1726-08T1

ROBERT ERIANNE,

Plaintiff-Respondent,

v.

SUBURBAN GOLF CLUB,

Defendant-Appellant.

___________________________________________________

 

Submitted May 5, 2009 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. SC-1041-08.

Rogut McCarthy, attorneys for appellant (Daniel J. McCarthy, on the briefs).

Robert Erianne, respondent pro se.

PER CURIAM

Defendant Suburban Golf Club is the owner and operator of a golf club located in Union Township in Union County. On June 10, 2008, plaintiff played in a tournament at defendant's golf course. While he was playing, someone broke into plaintiff's car, which he had parked in defendant's parking lot, and stole various items.

Plaintiff brought suit in the Special Civil Part for the damages suffered as a result of the break-in of his car that were not paid by either his automobile or homeowners' insurance policies. After a brief bench trial, the trial court entered judgment in plaintiff's favor for $1100.

On appeal, defendant argues that the trial court erred by failing to adjourn the trial to consider its motion to dismiss plaintiff's complaint and that the court failed to make adequate findings of fact to justify the imposition of liability for the damage plaintiff suffered as a result of the break-in of his car. Defendant also argues that plaintiff failed to present sufficient evidence to support a finding that defendant was negligent in its operation of the golf course parking lot. We conclude that the evidence plaintiff presented was insufficient to establish defendant's negligence and therefore reverse the judgment in his favor. This disposition makes it unnecessary to consider defendant's other arguments.

The operator of a commercial parking lot has a duty to provide security or warnings to protect its customers from the criminal acts of third parties. Clohesy v. Food Circus, Inc., 149 N.J. 496, 504-05 (1997). However, the operator of a parking lot is not an insurer of the safety of its patrons or their property. Id. at 507. To establish liability the plaintiff must show that the owner of the parking facility negligently failed to provide reasonable security. Ibid. This requires the plaintiff to prove that the commission of criminal acts by third parties was foreseeable under the totality of circumstances and that the owner of the parking facility failed to take reasonable measures to guard against that risk. Id. at 507-08, 519-20.

In determining that the operator of a supermarket parking lot could be held liable for the kidnapping from its parking lot and subsequent murder of one of its patrons, the Court in Clohesy

considered all the criminal acts that have occurred on [the supermarket's] property and those that occurred in close proximity to its property; the property's size and location; the absence of any security; the architectural design of the building in relation to the area of the parking lot where the crime occurred; the size of the parking lot; the type of business defendant operates; the nature and circumstances of nearby businesses; and the increasing level of crime in the general neighborhood.

[Id. at 517.]

Regarding criminal acts on and in proximity to the supermarket's parking lot, the Court noted that:

The Red Bank Police Department officially recorded approximately sixty criminal incidents either on or near the [supermarket's] premises over the two-and-one-half-year period that preceded Ms. Dalton's kidnapping and murder on July 15, 1991. The offenses consisted of thirty shopliftings, twelve thefts either inside the store or in the parking lot, four driving while intoxicated, four disorderly persons, four assaults, one criminal mischief, one trespassing, and one possession of a controlled dangerous substance.

[Id. at 503-04.]

In concluding that plaintiff had presented sufficient evidence to support a cause of action, the Court also relied upon the report of plaintiff's security expert, who concluded that the supermarket's "failure to provide any security for its parking lot deviated from the industry's standard of care." Id. at 504. In expressing this opinion, the security expert pointed to the fact that "a Mobil gasoline station and a liquor store adjacent to the parking lot served as gathering places for loiterers and attracted persons to drink and 'hang around[,]'" and that the supermarket "was located in an area where criminal conduct would reasonably be anticipated." Ibid.

In contrast to the circumstances in Clohesy, we held in Ivins v. Town Tavern, 335 N.J. Super. 188 (App. Div. 2000), that a person injured in a fight in a bar parking lot had not established the prerequisites for imposition of liability upon the owner of the lot for failure to maintain adequate security. Plaintiff relied upon five police reports of "fight/assaults" in the bar and its parking lot in support of his claim that the bar was negligent in failing to provide a security guard or bouncer in the parking lot. Id. at 192-93. In concluding that this evidence was insufficient to establish liability, we stated:

There is nothing here even remotely comparable to the circumstances in

Clohesy . . . . The evidence of incidents during 1995 up to June 14, 1996, establishes only two actual incidents of violence, one inside the bar over a pool game and one in the parking lot involving an intoxicated person. Moreover, there was no evidence that the tavern was located in an area that was particularly susceptible to violence.

[Id. at 197.]

Plaintiff's evidence that defendant was negligent in failing to provide security personnel in its parking lot on the day of the golf tournament was even more clearly inadequate than the evidence the plaintiff in Ivins relied upon. Plaintiff simply stated that he had observed security personnel in the parking lot at other golf tournaments in which he had played and that in his opinion defendant "should have had a security guard or somebody patrolling the parking lot like they do at various other clubs."

The mere fact that other golf clubs may have hired security personnel to patrol their parking lots during golf tournaments does not establish an industry standard or demonstrate that a golf club which does not have such security personnel fails to exercise due care for the safety of its patrons or their property. Plaintiff failed to present any evidence, as required by Clohesy, of the foreseeability of criminal acts in defendant's parking lot during a golf tournament or the safety measures that would be reasonably required to protect against such criminal conduct. He did not present any evidence of prior criminal activity at the golf club or in the immediately surrounding area. Nor did he present any evidence that there were other businesses or activities in the area that would be likely to attract a criminal element. Plaintiff's testimony consisted of nothing more than an expression of his personal opinion that defendant should have provided security personnel to protect the parking lot. Such testimony was insufficient to establish defendant's negligence.

Accordingly, the judgment in plaintiff's favor is reversed.

 

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A-0726-08T1

June 5, 2009