346 A.2d 76 (N.J. 1975), Braitman v. Overlook Terrace Corp.

Citation:346 A.2d 76, 68 N.J. 368
Opinion Judge:Pashman
Party Name:Nathan BRAITMAN and Olga Braitman, Plaintiffs-Respondents, v. OVERLOOK TERRACE CORP., Defendant-Appellant.
Attorney:Mr. James E. Flynn argued the cause for appellant (Mr. James P. Dugan, attorney).
Case Date:October 09, 1975
Court:Supreme Court of New Jersey

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346 A.2d 76 (N.J. 1975)

68 N.J. 368

Nathan BRAITMAN and Olga Braitman, Plaintiffs-Respondents,


OVERLOOK TERRACE CORP., Defendant-Appellant.

Supreme Court of New Jersey

October 9, 1975

Argued April 28, 1975.

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[68 N.J. 370] James E. Flynn, Hoboken, for defendant-appellant (James P. Dugan, Bayonne, attorney).

Sydney I. Turtz, West New York, for plaintiffs-respondents.

The opinion of the Court was delivered by


The principal question posed by this appeal is whether a landlord may incur civil liability to a residential tenant for loss occasioned by theft on the basis of the landlord's failure to supply adequate locks on the door to plaintiffs' premises. The trial court, sitting without a jury, entered judgment for plaintiffs and the Appellate Division affirmed, Braitman v. Overlook Terrace Corp., 132 N.J.Super. 51, 332 A.2d 212 (App.Div.1974). We granted defendant's petition for certification to consider the proper scope of a residential landlord's duty with respect to providing adequate security devices for the protection of his tenants' premises. 67 N.J. 96, 335 A.2d 48 (1975). We affirm.


Plaintiffs Nathan and Olga Braitman entered into a lease with defendant on January 30, 1971 for occupancy of an apartment in Overlook Terrace, a 600-unit, middle income [68 N.J. 371] high-rise complex located at 5701 Boulevard East, West New York, New Jersey. Although the lease term commenced on March 1, plaintiffs did not take possession of the premises until March 16, 1971. 1 On the very day they moved in, Braitman noticed that the dead lock on the door of his apartment was not working properly. 2

Several hours after discovering the defect in the lock, Braitman notified the management office where he was told that the situation would be 'taken care of.' Thereafter, when no action was taken by defendant to repair the lock, plaintiff repeated his complaint to the management office on two other occasions. In addition, he complained to the apartment superintendent

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on at least two occasions. 3 On several [68 N.J. 372] occasions, Mrs. Braitman also complained to the management about the inoperable lock.

On March 24, 1971, more than one week after Braitman initially notified defendant of the broken dead lock, an unknown thief entered his apartment, ransacked it and absconded with personal property, mostly jewelry, valued at $6,100. The lock was repaired two days after the robbery.

The crime was investigated by officers of the West New York Police Department who found no signs of forced entry. When asked if he performed any tests on the door, one of the officers testified as follows:

A. I slipped the lock. I went out in the hall. I asked Mr. Braitman to close the door and I checked to see if it was locked and then I slipped it.

Q. How did you slip it?

A. With a piece of celluloid.

Q. What did you do, tell the Court specifically what you did.

A. I just slid the piece of celluloid in between the jamb and the lock and pushed the door.

Q. And did the door open?

A. Yes. I shocked Mr. Braitman.

Q. Now, did you try on that occasion to manipulate the bolt?

A. I asked Mr. Braitman why the door wasn't double locked prior to that, and he said he had notified the management that he is having trouble with the lock.

Q. Did you try the bolt?

A. Yes, it did not operate.

The witness added that if one attempted to enter the apartment without a key, the dead lock would have to be 'picked' to gain access to the apartment, a task which would require[68 N.J. 373] tools possessed by someone 'very well experienced at break-ins.' Another police officer, who served as records clerk for the West New York Police Department, also testified that several other buildings in the area which employed security systems comparable to those used by defendant had experienced a number of break-ins prior to the date when plaintiffs' apartment was entered.

In May 1971 plaintiffs instituted the present suit to recover for their losses which resulted from the theft. Judge Bilder, as the trier of fact, found that the dead lock was inoperative, the remaining slip lock did not afford reasonable security, defendant had adequate knowledge of the defect and sufficient time to remedy it, the slip lock was secured on the day of the theft, the thief gained access to plaintiffs' apartment by 'slipping' the lock, and that the robbery was a foreseeable consequence of the condition. Based upon these findings the court concluded that defendant

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was negligent and that its conduct proximately caused plaintiffs' loss. Rejecting the suggestion that the Braitmans had been contributorily negligent, the court concluded that plaintiffs were entitled to $6,100 in damages.

On appeal, the Appellate Division observed that the 'mere relationship' of a landlord and tenant does not generally impose upon the former a duty to protect his tenant from crime. Braitman v. Overlook Terrace Corp., supra, 132 N.J.Super. at 55, 332 A.2d 212. Apart from the landlord-tenant relationship, however, the court reasoned that recovery against a landlord for theft may be predicated upon proof of negligence proximately causing the tenant's loss. Framing the issue in terms of foreseeability, Judge Handler, speaking for the Appellate Division, concluded that the evidence sufficiently supported the findings of the trial court that defendant's conduct unreasonably enhanced the risk of a break-in:

The findings of the court, based upon the evidence, indicate that the apartment door was inadequately secured through defendant's neglect, that this unreasonably enhanced the risk or hazard of a break-in and robbery and that such an occurrence was reasonably foreseeable. The evidence was also sufficient to support the findings that defendant had ample notice that the door was not adequately secured and sufficient opportunity to correct this condition. (132 N.J.Super. at 56, 332 A.2d at 214.)

[68 N.J. 374] Based upon its conclusion that the ultimate finding of the trial court, I.e., that defendant's neglect was the proximate cause of plaintiffs' loss, was amply supported, the Appellate Division affirmed the judgment below. 4

Although the Appellate Division correctly observed that the relationship between a landlord and his tenant does not, without more, impose upon the landlord a duty to protect the tenant from the crime of third persons, See McCappin v. Park Capital Corp., 42 N.J.Super. 169, 172, 126 A.2d 51 (App.Div.1956); See generally Annotation, 'Landlord's obligation to protect tenant against criminal activities of third persons,' 43 A.L.R.3d 331, 335 (1972), it is equally apparent, however, that there has been a recent judicial trend toward expanding the scope of duty on the part of landlords with respect to tenant security. 2 Powell, The Law of Real Property (Rohan ed. 1974), 234(2)(g) at 350.

The leading case in this area is Kline v. 1500 Massachusetts Ave. Apartment Corp., 141 U.S.App.D.C. 370, 439 F.2d 477 (D.C.Cir. 1970). Plaintiff in Kline, a tenant in defendant's apartment building, sustained serious injuries when she was assaulted and robbed by an intruder in the common hallway of her apartment house. Security measures in the building had been curtailed since plaintiff had first moved in despite an increasing level of criminal activity in the hallways[68 N.J. 375] of the building. 439 F.2d at 479. 5 The district court held that as a matter of law the landlord had no duty to protect tenants from foreseeable criminal acts committed by third parties, but on appeal the Court of Appeals found a 'clear' breach of duty and reversed and remanded for limited consideration of plaintiff's damages. 439 F.2d at 486--87. In deciding Kline, the court recognized that in general a private person had no duty to protect

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others from crime, but in the court's view this general principle was inappropriate in contemporary urban apartment living:

But the rationale of this very broad general rule falters when it is applied to the conditions of modern day urban apartment living, particularly in the circumstances of this case. The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The landlord is no insurer of his tenants' safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants. (439 F.2d at 481)

Accordingly, the court concluded that the duty of safeguarding 'the entire premises and the areas peculiarly under the landlord's control' should be imposed upon the landlord, since he is the party to the lease 'who has the effective capacity to perform these necessary acts.' 439 F.2d at 482. 6

[68 N.J. 376] The Supreme Court of Michigan has also concluded that a landlord does not necessarily escape liability to his tenant merely because the tenant's injuries were the result of criminal acts by third persons. In Johnston v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972), plaintiff, an elderly tenant in an inner city apartment, was struck and robbed by an unknown youth who was lurking in a poorly lighted, unlocked vestible of the building. The attack occurred in the early evening hours when plaintiff was returning home to his...

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