N.J. Model Civil Jury Charge 5.72

5.72 NEGLIGENCE — PROPRIETOR’S DUTY OF CARE TO

PATRONS AGAINST CRIMINAL ACTIVITY OF THIRD

PERSONS (Approved 11/99)

The owner/operator of [insert type of business en tity involved, i.e. store,

restaurant, office etc.] owes a duty of reasonable care to its [insert word describing

people using the premises, i.e. customer, patron, etc.] to provide a reasonably safe

place to [insert words describing plaintiff’s use of the premises, i.e. shop, conduct

business, enter the building, etc.]. It is a duty to take steps that are reasonable and

prudent under all the circumstances for a [insert word describing people using the

premises, i.e. customers, patrons, etc.] safety. The duty owed requires the

owner/operator of a [insert type of business entity involved, i.e. store, restaurant,

office etc.] to exercise ordinary care to protect [insert word describing people using

the premises, i.e. customers, patrons, etc.] from potential injury inflicted by

individuals that the owner/operator coul d have reasonably foreseen might be

present on the premises. 1 This legal duty of care does not make [insert type of

business entity involved, i.e. stor es, restaurants, businesses etc.] guarantors of a

[insert word describing people using the premises, i.e. customer’s, patron’s, etc.]

safety. However, if criminal activity on the premises is reasonably foreseeable,

then the [insert type of business entity involved, i.e. store, restaurant, office etc.]

1 See Butler v. Acme Markets, Inc. , 89 N.J. 270 (1982) stating that whether a business owner

breaches a duty is a jury question.

had a duty to take reasonable steps to protect its [insert word describing people

using the premises, i.e. customers, patrons etc.] from that danger.

When determining whether or not cr iminal activity on defendant’s property

was reasonably foreseeable, you may consider the following factors: prior criminal

acts that occurred on or around defendant’s property even if not as bad as the one

committed against the plaintiff; the property’s size and location; the absence of

adequate security; the architectural design of the building in relation to the area

where the crime occurred (for example: the size of the pa rking lot); the type of

business defendant operates; the nature and circumstances of nearby businesses;

and the increasing level of crime in the general neighborhood. You, the jury, must

look at the totality of the circumstances to decide whether or not the defendant

should have reasonably foreseen the danger.2

To summarize: if the place or character of the defendant’s business,

including notice of prior criminal activity in the area, is such that a reasonably

prudent [insert type of business entity involved, i.e. store, restaurant, office, etc.]

would anticipate criminal actions by third persons against a [insert work describing

2 See Morris v. Krauszer’s Food Stores, Inc., 300 N.J. Super. 529 (App. Div.), which adopted the

dissenting opinion set forth in Clohesy v. Food Circus Supermarkets, Inc., 293 N.J. Super. 217

(App. Div. 1996). The totality of the circumstances approach best accords with the fundamental

purposes of tort law as set forth in Butler and exemplified by the “solid and growing national

trend of authority.” See Clohesy, supra, 293 N.J. Super. 243 (dissenting opinion, quoting Sharp

v. W.H. Moore, Inc., 118 Idaho 297, 301, 796 P., 506, 510, 2d (Idaho 1990)).

people using the premises, i.e. customer, patron, etc.], then defendant had a duty to

take reasonable precautions against that danger. A failure to take such measures

would constitute negligence.