Case Law Summaries

Zepf v. Hilton Hotel & Casino

• Opinion Date: December 20, 2001
• Real Property Law
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PREMISES LIABILITY; SECURITY—A business owner may be liable to employees and others for criminal acts occurring on the sidewalks adjacent to or leading to the business’ property.

A casino employee was assaulted by a robber on the sidewalk adjacent to the casino as she left work to go home in the early morning hours. The casino contended “that it owed no duty to provide surveillance and security patrols on a public sidewalk it does not own or control and that if it owed such a duty, it satisfied the duty by providing a shuttle bus to a secure parking lot.” The casino provided a remote employee parking lot that was guarded and fenced. Employees were taken to and from that lot every fifteen minutes. Located right next to one of the casino’s facilities was a private parking lot, not connected to the casino’s business. The employee parked her car in that lot, although she was aware of the remote employee lot and the shuttle service. According to her, she never used the remote lot because it added forty minutes to her trip to and from work. She was also concerned that the remote lot was often flooded, as was the street on which it was located and that “street people hung around the area where the shuttle departed.” Other employees used the private parking lot as well. Employees were not required to use the shuttle bus or the employee lot. The casino never directed or recommended use of the private parking lot. However, the casino never told its employee of any risks of using the sidewalk to get to the private lot or that the private lot was not safe. In fact, according to the employee, she believed that walking along the sidewalk a distance of 153 feet from the casino was safe.

The casino’s security manual provided that its security force was to “periodically check [the property’s] perimeters.” The security force did so both by foot patrol and with closed circuit television surveillance. It did not, however, provide building patrols or camera coverage along the sidewalk in question, believing that security for the sidewalks was the responsibility of the municipal police department. As a result, the casino did not obtain any crime statistics regarding the level or types of criminal activity which occurred around its property. The employee’s expert testified that there was a foreseeable risk of crime being committed on people on public streets in the area adjacent to the casino’s property, “given the nature of the casino business, i.e., a lot of visitors with large amounts of cash… .” He opined that given the absence of security along the sidewalk in question, the employee was more at risk walking to the private lot than in other areas around the casino’s property. Further, he opined that the casino failed to comply with its own security manual, “in that all of the property’s perimeters were not routinely checked.” Further, there was sufficient evidence for a jury to infer that the casino “was aware or should have been aware that some of its employees did not use the shuttle bus and remote employee parking lot, but instead used the [private parking lot] located 153 feet away from the employee exit and entrance… .” The lower court applied a “totality of the circumstances” and concluded that, as a matter of law, the casino owed a duty to provide security for its employees along the sidewalk in question. It also ruled that the casino “received an economic benefit from individuals using the sidewalk to get to its casino,” and held that it was for the jury to decide whether the casino breached the duty owed to its employee. The Appellate Division agreed. It reviewed cases including one where “an abutting commercial landowner [was] liable for injuries to a pedestrian caused by a dilapidated sidewalk, if the owner failed to maintain the sidewalk in good condition.” It also reviewed a case where a supermarket customer was assaulted in the store’s parking lot. Further, it reaffirmed the principle that a “proprietor of a business to which the public is invited owes a duty of reasonable care to those who enter the premises to provide a reasonably safe place to do that which is in the scope of the invitation.” This premise was extended to another case where a patron of a catering hall was forced to park across the street from the catering hall because the hall’s parking lot was full. When that patron was killed crossing the street, an appellate court ruled that “although a landowner’s duty generally applies to those who come onto the land, it can be extended beyond the property. ... Thus, the defendant had a duty to provide a reasonably safe passage for its patrons crossing a highway to reach the business.” Consequently, after reviewing those cases and many others, the Court, held that “balancing and weighing these factors, [the casino] owed a duty to [its employee]. Clearly, [the casino] obtained an economic benefit from [its employee’s] work activities in [the casino].” The Court discerned no difference between an employee and a casino patron.

The casino also asserted that even if it owed a duty to its employee, “it satisfied that duty as a matter of law by providing a free employee shuttle bus to its secure employee parking lot.” The Appellate Division disagreed. The Court was influenced by the fact that use of the shuttle bus was not mandatory. Moreover, it held that an “inference could be drawn that [the casino] was aware or should have been aware that some of its employees did not use the shuttle bus and employee lot, but instead used the [private lot].” The security manual did not mention the shuttle bus. In fact, the shuttle was not part of the casino’s security efforts. For those reasons, the Court disregarded the casino’s defense.

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