When Can a Business Be Liable for an Accident That Occurs Off its Property in New Jersey?

Under the New Jersey common law, a commercial property owner in New Jersey, who was otherwise without fault, owed no duty to a pedestrian injured on an abutting highway or sidewalk which was part of the public domain. See Yanhko v. Fane, 70 N.J. 528, 534-535 (1976). However, over the years, the New Jersey judiciary has reviewed and periodically altered that common law rule.

In Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), the New Jersey Supreme Court imposed a duty upon a commercial landowner to maintain abutting sidewalks. The Court principally based its decision on fairness, the practical ability of commercial landowners to inspect and maintain sidewalks, and the capacity to spread financial risk. It also held that the old common law rule, which exempted property owners from sidewalk maintenance and placed the burden entirely on the public or government, was outdated and led to unfair results for injured pedestrians

The Appellate Division subsequently found that the common law protection should also not apply to a commercial property where the pedestrian was injured in an adjacent street between the commercial establishment and its parking lot. In Warrington v. Bird, 204 N.J. Super. 611 (App. Div. 1985), the plaintiff was killed while crossing a country road at night from the defendant restaurant’s own parking lot to the restaurant. The Court held that the defendant restaurant had an obligation to provide safe passage from its own parking lot to the restaurant. “Commercial entrepreneurs know in providing the parking facility that their customers will travel a definite route to reach their premises.” Id. at 617.

The Appellate Division in Mulraney v. Auletto’s Catering, Nat. Valet Parking Services, 293 N.J. Super. 315 (App. Div. 1996), reviewed similar facts and principally relied upon the Appellate Division’s decision in Warrington. Like Warrington, the plaintiff in Mulraney was killed at night after she had attended a bridal convention as she was crossing a public roadway from a catering hall to a parking lot that was typically used by patrons of the catering hall. The evidence demonstrated that the defendant catering hall had taken it upon itself on some occasions, but not on the date of the plaintiff’s incident, to put up signs to warn motorists. The Court in Mulraney reversed the trial court’s grant of summary judgment to the catering hall and to the defendant valet service and found that both had an obligation for the plaintiff’s safety.

However, the Mulraney Court limited its decision to the specific facts of that case. Explicitly, it indicated that its ruling applied “only on those isolated occasions when the business conducts special functions that attract an unusually large number of attendees.” Id. at 322.  “Plaintiffs’ claim against [the defendant caterer] is not based upon an alleged unsafe condition of the highway but rather upon a transient dangerous condition resulting from [the caterer’s] conduct of a special function at its premises.” Id. at 323.

While some exceptions have been created, the Court has not completely abandoned the common law rule as it relates to offsite accidents. In MacGrath v. Levin Properties, 256 N.J. Super. 247 (App. Div. 1992), the plaintiff was injured while attempting to cross a public highway on foot after leaving a shopping center. The plaintiff in MacGrath argued that the owner of the shopping center owed her “a duty to provide her with a safe means of passage across Route 22, or to warn her of the dangers inherent in traversing the highway. Id. at 248.

The MacGrath Court, however, held that no such duty exists. Id. In support of its decision, the Court relied upon the common law rule that a commercial property owner owes no duty to a plaintiff injured on a highway. Id. at 520-521. Further, it cited to the “no liability” rule of the 2 Restatement (Second) of Torts § 349 (1964), which reads:

Dangerous Conditions in Public Highway or Private Right of Way

A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care

(a) to maintain the highway or way in safe condition for their use, or

(b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.

Id. at 251.

The MacGrath Court also stated that “[g]enerally, our court has followed the Restatement rule and has found no liability against the abutting property owner for injuries occurring to patrons on the public way unless the Stewart exception applies.” Id. at 251-252 (citing Levin v. Devoe, 221 N.J. Super. 61, 65 (App. Div. 1987) (“the duty of an apartment-complex owner to maintain abutting sidewalks did not extend to maintaining curbs separated from the sidewalk by a grass strip…and no one could reasonably suggest that the owner of commercial property owes a duty to pedestrians crossing the street to keep an abutting paved road in repair);” Chimiente v. Adam Corp., 221 N.J. Super. 580, 583-584 (App. Div. 1987) (holding that “the owner of a shopping center parking lot had no duty to maintain a dirt pathway leading to the lot across property owned by the State);” and Ross v. Moore, 221 N.J. Super. 1, 5-6 (App. Div. 1987) (holding that the public school was not liable for the plaintiff’s injury on a public roadway because “no danger inhered in the school’s property itself in the relative shortage of parking spaces; no danger was let loose on the school’s property which resulted in injury to plaintiff on the adjoining public highway).”

The Court in MacGrath also found that its facts were readily distinguishable from the Warrington case. Specifically, the MacGrath Court stated that “Warrington is a precedent only that a commercial establishment which provides parking facilities for its patrons across a public roadway has a duty to exercise reasonable care for their safe passage from there to the commercial establishment and back.” Id. at 254 (emphasis added). The MacGrath Court refused to follow Warrington because the defendant shopping center did not provide a parking lot across the public highway, and the defendant’s knowledge that others crossed the public roadway did not “present a basis to extend the law by imposing a duty upon [the landowner] to provide a means of safe passage across the highway, or to warn patrons of the apparent dangers of highway traffic.” Id.

In noting that the Warrington case did not cite to the “no liability” rule under § 349 of the Restatement, the MacGrath Court stated:

[I]t cannot be fairly suggested that the owner owes a duty to protect the pedestrian from the obvious hazards of the abutting highway. Liability rests with the State, if there exists a dangerous condition in the public way which caused the accident, or with the operator of the vehicle whose negligence caused the injuries to the crossing pedestrian.

Id. at 253 [internal citations omitted].

The Court has continued to reject liability claims upon a commercial property owner for offsite injuries in response to the Court’s exceptions. See Kuzmicz v. Ivy Hill Park Apts., 147 N.J. 510 (1997) (holding that that fairness determined that the landlord of an apartment complex should not be held responsible for the safety of a tenant on an adjacent vacant lot that the landlord neither controlled nor derived a benefit from); Estate of Desir ex rel. Estiverne v. Virtus, 214 N.J. 303 (2013) (holding that a landowner is not liable for offsite injuries on land not owned by the landowner and that where the landowner neither created the risk of harm nor exercised control over the location where the harm occurred, no duty will be imposed); Buddy v. Knapp, Wawa, et al., 469 N.J. Super. 168 (App. Div. 2021) (holding that the defendant did not owe a duty to plaintiffs for injuries suffered off its premises and that a direct economic benefit to the commercial landowner from the path taken by the injured party and the absence of an alternative route were critical facts that weighed in a duty decision); and Faibisch v. Wawa, et al., 2024 N.J. Super. Unpub. Lexis 1187.

The plaintiff in Faibisch, a truck driver, was injured after leaving a Wawa store while attempting to cross a public roadway. The plaintiff was forced to park on the shoulder of the abutting highway because the Wawa parking lot could not accommodate tractor trailers. Evidence exchanged during discovery revealed that Wawa was aware that truck drivers were parking on the shoulder of the highway.

In its 2024 unpublished decision, the Faibisch Court reviewed all of the applicable law on this subject matter and held that the defendant property owner was not liable, and had no duty, to the injured pedestrian. Specifically, the Court observed that the defendants in Mulraney and in Warrington had directed the plaintiffs where to park “and thus the path they would take to reach the business….” Id. at 20. In denying the plaintiff’s appeal, the Faibisch Court expressly noted that the defendant had not directed its customers to park on the shoulder of the roadway. Id. The Court also indicated that the presence of alternative routes was critical to its decision. Id.

So, where does the above leave the application of the traditional common law rule in New Jersey upon commercial property owners alleged to be responsible for off premises injuries? That common law rule generally remains intact, although the Court has certainly carved out specific exceptions. Commercial property owners are responsible for injuries on abutting sidewalks. They are also responsible for injuries in a roadway connecting the commercial establishment and its parking lot

However, the imposition of liability upon a commercial property owner for offsite injuries remains the exception, not the rule. While reviewing each factual and legal claim on a case by case basis, the Court’s decision is ultimately one that comes down to fairness. Fairness, and not foreseeability, is the ultimate test for determining whether a commercial defendant owes a legal duty of care for an incident that does not occur on its premises.