Can I Sue the Land Owner if I am Injured by a Third Party?

Submitted by New Jersey Civil Lawyer, Jeffrey Hark.
31-2-2943 Higgins v. Holiday Inn and Conference Ctr., N.J. Super. App. Div. (per curiam) (11 pp.)
New Jersey’s Appellate Division has recently decided a case where individuals (plaintiffs) attending a party at a Holiday Inn were shot while smoking outside by an unknown assailant. The plaintiffs sued the Holiday Inn, claiming that it should have had increased security during night time and because it knew of prior criminal incidents. The Trial Court granted Summary Judgment in favor of the Holiday Inn, and the plaintiffs appealed.
The Appellate Court affirmed the Trial Court’s decision. The duty to exercise care to avoid a risk of harm to another is determined by a totality of the circumstances. The totality of the circumstances includes considerations of fairness and public policy, but perhaps most important for a case like this is whether a reasonable prudent person could foresee the third party’s conduct and whether the land owner exercised reasonable care. Foreseeability is crucial since is subsumes many concerns such as the relationship between the plaintiff and the tortfeasor, the nature of the risk, and the ability and opportunity to exercise care. The way to prove or at least create a question of fact to establish ‘foreseeability’ of a property owner of possible danger or harm happening to their patrons is to examine each and every police report or call made in the past. This trial court examined each and every call or report and determined that this property owner did not have any prior notice of this particular type of behavior, i.e. a shooting outside by a stranger.
For a motion for summary judgment, the evidence is viewed in light most favorable to the non-moving party, in this case the plaintiffs. Even viewing the facts in favor of the plaintiffs, the Court found that there were no facts in the case to show that there was anything inherent about the party which could have put the Holiday Inn on notice that an incident like this could occur. There had not been a single reported dispute in the last nineteen parties held at the Holiday Inn. Further, in the last ten years there had been minor incidents, none of which involved a shooting. Therefore, the Court concluded that the totality of the circumstances showed that the Holiday Inn could not have reasonably foreseen this shooting, and therefore could not be held liable for not having increased security to prevent such an incident.