dissenting in part.
The sense of conviction which prompted my agreement with Justice Schreiber in Braitman v. Overlook Terrace Corp., 68 N.J. 368, 388 (1975) (concurring opinion), remains undiminished by time, events, or any development in landlord-tenant law. I therefore join fully in his concurring opinion today.
In addition, I take this opportunity to register disagreement with the notion that liability can be imposed on the defendant landlord on the theory of implied warranty of habitability. Emphasizing the growing presence of crime in society the Court declares today that “the landlord’s implied warranty of habitability obliges him to furnish reasonable safeguards to protect tenants from foreseeable criminal activity on the premises”, ante at 228; and that “[sjince [this] undertaking exists independently of [the landlord’s] knowledge of any risks, there is no need to prove notice of a defective and unsafe condition.” Ante at 228.
The harsh realities of modern life are all too well-known. I share the majority’s concern with them. But novel application of the implied warranty of habitability to the baleful conditions reflected in those realities is unwarranted and ill-advised. See Braitman, supra, 68 N.J. at 387-88; Dwyer v. Skyline Apartments, 123 N.J.Super. 48, 54-56 (App.Div.), aff’d. o. b. 63 N.J. 577 (1973). See also Hall v. Fraknoi, 69 Misc.2d 470, 330 N.Y.S.2d 637 (Civ.Ct.N.Y.1972). In practical effect this exercise predicates what amounts to absolute liability solely upon the relationship between the landlord and tenant and upon loose notions of foreseeability. In my view the existence of a duty here should not be grounded simply on a special relationship between the parties but rather should arise from the particular circumstances of the case, including foreseeability. See Braitman, supra; Caputzal v. The Lindsay Co., 48 N.J. 69, 75-76 (1966); Dwyer, supra; Goldberg v. Housing Authority, 38 N.J. 578 (1962). See *235also Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S.App.D.C. 370, 374-377, 439 F.2d 477, 481-84 (D.C.Cir.1970); Rowland v. Christian, 69 Cal.2d 108, 113, 443 P.2d 561, 564, 70 Cal.Rptr. 97, 100 (1968). Clearly the inquiry must involve a fair balancing of the relative interests of the parties, the nature of the risk, and the public interest in the proposed solution. Goldberg, supra, 38 N.J. at 583. This process has been well served in the past through the application of traditional negligence principles. I perceive no compelling reason for departing from that practice.
SCHREIBER, J., concurring in the result.
CLIFFORD, J., concurring in the result and dissenting in part.
For affirmance —Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 7.
For reversal — None.