CLARE RUSH v. BALLY'S PARK PLACE, INC., d/b/a CLARIDGE TOWER AT BALLY'S

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5176-05T15176-05T1

CLARE RUSH,

Plaintiff-Respondent,

v.

BALLY'S PARK PLACE, INC.,

d/b/a CLARIDGE TOWER AT BALLY'S,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 28, 2007 - Decided March 30, 2007

Before Judges Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. SC-703-06.

Cooper Levenson April Niedelman & Wagenheim, attorneys for appellant (Scott A. Portner, on the brief).

Respondent did not file a brief.

PER CURIAM

In this Special Civil Part case, defendant Bally's Park Place, d/b/a the Claridge Tower at Bally's (Claridge) appeals from a Special Civil Part judgment entered after a bench trial on April 27, 2006. We affirm.

This case arises out of an incident on December 24, 2005 in which plaintiff Clare Rush was assaulted and a gold necklace was grabbed from her neck, while she stood outside the Claridge waiting for her car to be delivered from valet parking. Plaintiff was shaken up by the incident and, rather than filing a claim immediately, she waited until December 26 to telephone a report of the incident to defendant.

The trial judge determined that defendant owed a duty to plaintiff as a business invitee because plaintiff was in a valet parking area "where there's a heightened expectation of security as opposed to a parking garage or a parking lot where[,] once you leave the confines of the casino[,] you're pretty much on your own." The court found that defendants should have had extra security in the valet area and entered judgment in the amount of $800, plus court costs, for the stolen necklace.

In this appeal, defendant argues that (1) the trial court erred in ruling that it owed a duty to plaintiff; and (2) Claridge's action or inaction was not the proximate cause of the assault and loss of the necklace.

The trial judge properly determined that plaintiff was a business invitee. "The duty of the owner or possessor of land to protect business invitees from foreseeable harm is well established." Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 534 (App. Div.), certif. denied, Morris v. Convenience Mgmt. Servs., 151 N.J. 77 (1997). "The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982). "The duty is to use 'due care under all the circumstances.'" Cassanello v. Luddy, 302 N.J. Super. 267, 271 (App. Div. 1997) (quoting Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964)).

"The test of negligence is whether a 'reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others.'" Cassanello, supra, 302 N.J. Super. at 271-72 (quoting Rappaport v. Nichols, 31 N.J. 188, 201 (1959)). "An important factor is whether it is foreseeable that the criminal acts of others would cause harm." Cassanello, supra, 302 N.J. Super. at 272.

We have previously held that the totality of circumstances standard is applicable for determining the foreseeability of a criminal incident that would impose a duty on a commercial establishment to provide a reasonable measure of protection for its business invitees. Morris, supra, 300 N.J. Super. at 535-36. Moreover, "our courts expressly impose upon commercial parking lot and garage operators the duty to take reasonable steps to protect parked vehicles from criminal acts of others." Berrios v. United Parcel Serv., 265 N.J. Super. 368, 370 (App. Div. 1993) (citing McGlynn v. Newark Parking Auth., 86 N.J. 555 (1981)).

It is not the availability of the parking lot to the general public or whether a fee is charged which is dispositive, but whether there is a relationship between the parking lot owner and the person using the lot which imposes the duty of care. If the use of the lot advances the owner's business interests . . . then the duty clearly exists.

[Berrios, supra, 265 N.J. Super. at 370.]

Here, it is undisputed that plaintiff was at the Claridge to gamble. Two men approached her and wished her a Merry Christmas as she was waiting for her car in the valet parking area. One of the men grabbed her necklace and ran off. Plaintiff's husband and the parking attendant attempted to run after the thief. Meanwhile, plaintiff's car was delivered and she got into it and left.

Defendant argues that plaintiff presented no evidence of prior criminal activity in that area and that the attack on plaintiff was so sudden and unexpected that it was unforeseeable, thereby relieving defendant of any duty to establish heightened security in the valet parking area. We disagree.

In Morris, we rejected the "prior similar incidents rule or a variation thereof," and adopted the "totality of the circumstances approach." 300 N.J. Super. at 535. Under the totality of the circumstances, we agree with the trial judge that the valet parking area, where patrons are exiting the casino, "would naturally be a magnet or a draw for any individuals who would think of criminal activity." The test for foreseeability is whether a "reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Rappaport, supra, 31 N.J. 188, 201 (1959).

We find no merit in defendant's argument that it was not the proximate cause of the assault on plaintiff. Defendant maintains that there is no evidence that any additional security guards would have prevented the incident. It is reasonable, however, to expect that the presence of security personnel would have deterred an attacker. In short, we find, consistent with our case law, that defendant had a duty to provide security personnel and protection for its patrons who were waiting for their cars in the valet parking area in front of the Claridge. Under the totality of the circumstances, defendant had a duty of care to plaintiff as a business invitee and breached that duty in failing to provide security. Accordingly, we affirm the judgment of the trial court.

Affirmed.

 

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A-5176-05T1

March 30, 2007