Kuzmicz v. Ivy Hill Park Apartments

• Citation: 660 A.2d 1208,282 N.J.Super. 513
• Parties: Ireneusz KUZMICZ, Marie Kuzmicz, Tadeusz Wronowski and Hannah Wronowski, Plaintiffs-Respondents, v. IVY HILL PARK APARTMENTS, Defendant and Third-Party Plaintiff-Appellant. CITY OF NEWARK and Newark Board of Education, Defendants, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Third-Party Defendant-Respondent.
• Decision Date: 03 July 1995
• Court: New Jersey Superior Court – Appellate Division

Page 513

282 N.J.Super. 513

660 A.2d 1208

Ireneusz KUZMICZ, Marie Kuzmicz, Tadeusz Wronowski and Hannah Wronowski, Plaintiffs-Respondents, v. IVY HILL PARK APARTMENTS, Defendant and Third-Party

Plaintiff-Appellant.

CITY OF NEWARK and Newark Board of Education, Defendants, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Third-Party

Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 16, 1995.

Decided July 3, 1995.

John Burke, Morristown, for appellant Ivy Hill Park Apts. (Berlin, Kaplan, Dembling & Burke, attorneys; Mr. Burke, on the brief).

Joel C. Rinsky, Livingston, for respondent Ireneusz Kuzmicz (Mr. Rinsky, on the brief).

James R. Connell, Montclair, for respondent Great Atlantic and Pacific Tea Co., Inc. (Dwyer, Connell & Lisbona, attorneys; Paul J. Curreri, on the brief).

Before KING, D'ANNUNZIO and EICHEN, JJ.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

Defendant, Ivy Hill Park Apartments (Ivy Hill), appeals from a money judgment in favor of plaintiff entered on a jury verdict. Ivy Hill's third-party action against the Great Atlantic and Pacific Tea Company, Inc. (A & P) had been disposed of prior to trial by summary judgment in favor of A & P. Summary judgment was granted in favor of the City of Newark prior to trial.

The material facts were uncontroverted. Plaintiff, a Polish immigrant who came to the United States in 1986, was a tenant at an apartment complex owned and operated by defendant, Ivy Hill. In the evening of December 8, 1989, plaintiff and a companion were walking on an undeveloped lot from an A & P store to Ivy Hill when they were attacked by three unknown persons. Plaintiff was stabbed in the right chest, the left chest, and the right upper quadrant of his abdomen. Among other injuries, he suffered a laceration of the right ventricle of the heart which was characterized as a life-threatening injury. Plaintiff's liver was also lacerated.

The Newark Board of Education owned the lot on which the attack occurred. The Board's lot consisted of seven acres and was overgrown with brush and trees. It was strategically located between the Ivy Park Shopping Center (Shopping Center), where the A & P was a tenant, and a parking lot owned by Ivy Hill. The parking lot was for the exclusive use of Ivy Hill tenants, such as the plaintiff. A chain link fence, erected by Ivy Hill, separated the parking lot from the Board's lot. There was a gap in the fence, and a jury could infer that the gap was created intentionally. The gap was wide enough for two persons to walk through it abreast. Photographs show that on each side of the gap, the chain link fencing terminated in a large structural member, a steel pole. It could be inferred that the opening was created to accommodate a gate. However, there was no gate. A path led from the gap across the Board's lot to the rear of the A & P at the Shopping Center. The path was an alternative route to the Shopping Center. Its use eliminated the need to use a longer route along public streets and sidewalks.

Donald Karas, a Newark policeman, was employed by Ivy Hill as a part-time security officer when plaintiff was stabbed. He testified that the path was approximately the length of a football field but varied in width. According to Karas, many tenants used the path to walk to the Shopping Center. He testified that the use of the path was continuous. According to Karas, Ivy Hill never instructed him to prevent people from using the path or to warn tenants not to use the path. Karas had, however, on occasion suggested to people whom he knew not to use the path in the dark.

Klaus Mangold was the manager of the Ivy Hill Park Apartments. He was aware that Ivy Hill tenants and employees used the path to travel between the parking lot and the Shopping Center. Plaintiff introduced into evidence letters from Mangold to the Newark Board of Education and to the City of Newark regarding the condition of the Board's lot. On October 24, 1985, Mangold wrote to the Mayor of Newark and described the Board's lot:

The lot is overgrown with weeds and brush, is full of garbage, has no lighting at night, is not patrolled by the police and provides shelter for vermin of all types. The path through the lot is an extremely dangerous area: there has been a murder and dozens of muggings, including three of our employees, as well as some of our tenants and visitors. The situation has grown progressively worse in the past week and shows no sign of being corrected.

Mangold suggested, as a remedy, that the City deed the lot to Ivy Hill.

Mangold wrote to the Board of Education on May 19, 1989. We reproduce the first three paragraphs of the letter:

For several years we have been deeply concerned about the conditions existing on the property owned by the Board of Education. The land in question is between our property and the Ivy Plaza shopping area, bordering Irvington Avenue; it is vacant and untended.

While neither the City of Newark, nor the Newark Board of Education, has the resources to adequately maintain or patrol vacant land, the area has been the site of several homicides, countless muggings, continual drug dealing, in addition to being used by youths and adults for drinking, and other activities. The overgrown conditions on the lot, together with the lack of removal of illicitly dumped garbage, creates a haven for rodents, and makes the lot an unsightly blight on the neighborhood. These conditions have a severely detrimental effect upon our complex and tenants.

We are enclosing herewith copies of our previous correspondence with the City, from which you will gather that we are extremely interested in acquiring this property since we are in the best position to develop and maintain this area. It is obviously in the best interests of the Board of Education, the City as a whole and this neighborhood in particular, to have the property change from a fiscally draining liability to tax-revenue-generating status.

Those letters established that Mangold, in his capacity as manager of Ivy Hill, was aware that the lot was a dangerous place. We note that the 1985 letter refers to "a murder," while the 1989 letter refers to "several homicides." A jury could infer, therefore, that the incidence of violence on the lot had increased between 1985 and 1989.

The evidence also established, through admissions by Ivy Hill, that Klaus Mangold was "the rental agent" for the Shopping Center, and that he "was in charge of the management" of the Shopping Center as well as the manager of Ivy Hill.

At the conclusion of the plaintiff's case, the Board of Education rested without presenting testimony or evidence. Defendant, Ivy Hill, read to the jury some deposition questions and answers, and then rested.

The jury determined that plaintiff was 20% negligent, the Board of Education was 30% negligent and Ivy Hill was 50% negligent. The jury awarded plaintiff damages in the amount of $175,000, and the court entered a molded judgment based on the jury's verdict.

The Board of Education did not appeal. Ivy Hill's core contention on appeal is that it could not be responsible for a criminal act occurring on property owned by another, and, therefore, the trial court erred in denying its pre-trial motion for summary judgment and its motion for involuntary dismissal. Ivy Hill also contends that the trial court erred in admitting evidence of Klaus Mangold's dual employment and in permitting plaintiff's counsel to comment on it during summation. Ivy Hill's third and final contention is that the trial court erred in not applying to Ivy Hill the ruling it made in granting third-party defendant A & P's motion for summary judgment. We affirm.

Generally, a private person has no duty to protect others from crime. Braitman v. Overlook Terrace Corp., 68 N.J. 368, 375, 346 A.2d 76 (1975). But the general rule is not applicable to a landlord-tenant relationship. Ibid. Thus, our Supreme Court in Braitman held that "[a] residential tenant can recover damages from his landlord upon proper proof that the latter unreasonably enhanced the risk of loss due to theft by failing to supply adequate locks to safeguard the tenant's premises after suitable notice of the defect." Id. at 383, 346 A.2d 76. See Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C.Cir.1970).

The Supreme Court revisited the issue of landlord liability for the criminal acts of others in Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980). Mrs. Trentacost was assaulted and robbed when she reached the top of a flight of stairs leading to her apartment. Plaintiff's apartment was one of eight in the building. Although a padlock secured the back entrance to the building, there was no lock restricting access to the building's front door. The Court affirmed a judgment in plaintiff's favor and, in defining the basis of landlord liability, stated:

We reiterate that our holding in Braitman lies well within traditional principles of negligence law. "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Rappaport v. Nichols, 31 N.J. 188, 201, 156 A.2d 1 (1959). If the reasonably prudent person would foresee danger resulting from another's voluntary, criminal acts, the fact that another's actions are beyond defendant's control does not preclude liability. (Citations omitted.) Foreseeability of harm, not the fact of another's intervention, is the crucial factor in determining "whether a duty exists to take measures to guard against [criminal activity]." Goldberg [v. Newark Housing Auth.], 38 N.J. 583, 186 A.2d 291 [1962].

[82 N.J. at 222-23, 412 A.2d 436.]

Applying those principles, the Court noted that criminal activity affecting the building was reasonably foreseeable due to evidence of a "high incidence of crime in the neighborhood," id. at 223, 412 A.2d 436, and of a...