Legal Duty to Prevent a Risk of Harm to Another In New Jersey
In New Jersey, it is now well-settled that there is no bright line rule that determines when one owes a legal duty to prevent a risk of harm to another.
"Duty" is a fluid concept. See Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110. (1993). Whether a legal duty is owed and the scope of that duty is generally a matter of law for the courts to decide on a case by case basis. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996); Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (1984).
The imposition of a duty depends on the interplay of many factors, including:
(1) the relationship of the parties;
(2) the nature of the attendant risk;
(3) the ability and opportunity to exercise control;
(4) the public interest in the proposed solution; and, most importantly;
(5) the objective foreseeability of harm. Alloway v. Bradlees, Inc., 157 N.J. 221, 230, 723 A.2d 960 (1999).
In deciding whether to impose a duty, these factors must be "identified, weighed and balanced" by the court. Ibid.
The court's decision in this regard must be "fact specific and principled." Ibid.
Ultimately, Supreme Court cases repeatedly emphasize that the question of whether a duty exists is one of "fairness" and "public policy." Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110; Accord Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502, 694 A.2d 1017 (1997).
Thus, "the essential question is whether 'the plaintiff's interests are entitled to legal protection against the defendant's conduct.'
Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct." Wytupeck v. Camden, 25 N.J. 450, 461-62, 136 A.2d 887 (1957)(quoting Prosser on Torts, 36 (2d ed.)).
Of all the factors noted above, "foreseeability" has generally received the greatest attention in the case law. the question of whether harm to another is "foreseeable" is capable of objective analysis and is based on the "totality of circumstances." Clohesy, supra, 149 N.J. at 508-509, 694 A.2d 1017. See J.S. v. R.T.H., 155 N.J. 330, 337, 714 A.2d 924 (1998)(noting that foreseeability of harm is the "foundational" element in the duty analysis and is "susceptible to objective analysis"); Butler v. Acme Markets, Inc., 89 N.J. 270, 276, 445 A.2d 1141 (1982)(stating that foreseeability of criminal acts of third parties is the "crucial" factor).
"The totality of circumstances standard in determining foreseeability encompasses all the factors a reasonably prudent person would consider." Clohesy, supra, 149 N.J. at 508, 694 A.2d 1017.