Trentacost v. Brussel

• Decision Date: 22 November 1978
• Citation: 395 A.2d 540,164 N.J.Super. 9
• Parties: Florence TRENTACOST, Plaintiff-Respondent, v. Dr. Nathan T. BRUSSEL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 9

164 N.J.Super. 9

395 A.2d 540

Florence TRENTACOST, Plaintiff-Respondent, v. Dr. Nathan T. BRUSSEL, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 31, 1978.

Decided Nov. 22, 1978.

Isaac Henkoff, Clifton, for appellant (Klein, Chester, Greenburg & Henkoff, Clifton, attorneys).

Gregory J. Aprile, Paterson, for respondent (Philip M. Saginario, Paterson, attorney and on the brief).

Before Judges LYNCH, CRANE and HORN.

The opinion of the court was delivered by

HORN, J. A. D.

At about 4 p. m. on December 21, 1973 plaintiff was "mugged" in a hallway of the apartment house in which she resided as a tenant. As a result she sustained serious personal injury. She instituted an action against defendant, her landlord, for her personal injuries, grounded in his alleged negligence in "his failure to maintain the safety of the common areas of access and egress to (the) building, by negligently and carelessly failing to place a lock on the front door entrance," and in certain other respects.

Defendant answered by denying that he was negligent and asserting that plaintiff was contributorily negligent. Following a trial the jury awarded plaintiff $3,000 as damages. The judge then denied a directed verdict which had been sought by defendant during the course of the trial and as to which the judge reserved decision.

Subsequently, plaintiff moved for an Additur or, alternatively, for a new trial as to damages. At the same time defendant moved for judgment N. o. v. The judge denied defendant's motion and granted plaintiff's motion by awarding an Additur in the sum of $15,000, thereby increasing the judgment to $18,000, the order as to which providing that if defendant failed to consent to the Additur a new trial as to damages only would be granted to plaintiff. Defendant refused to agree. The new trial resulted in a verdict at the hands of a jury in the sum of $25,000. Defendant then appealed.

The alleged errors on which defendant relies in this appeal all relate to the first trial. We consider them as they appear in defendant's brief.

I

Defendant first asserts that the trial judge mistakenly denied his motion for a directed verdict as a matter of law. Underlying this contention is defendant's thesis that he was under no duty to provide a lock for the front door and that the criminal attack which resulted in plaintiff's injuries was not shown to be the proximate cause of negligence on his part. We are not persuaded by his argument that the court did err.

No case in our State has heretofore directly addressed the specific issue raised here the right of recovery for personal injuries of a tenant under the circumstances demonstrated. Several cases touching the fringes of the issue have been decided. Consequently, we refer to these in order to glean therefrom the applicable judicial policy.

The first of these cases is Goldberg v. Newark Housing Auth., 38 N.J. 578, 186 A.2d 291 (1962). There, while plaintiff was delivering milk to tenants in a large apartment complex housing between 5,300 and 6,000 residents, operated by the Housing Authority of Newark, he was beaten and robbed by two men in a self-service passenger elevator in one of the ten large apartment houses. Plaintiff prevailed before the trial court and the Appellate Division upon the sole claim that defendant had a duty to provide police protection. In reversing the judgment for plaintiff our Supreme Court determined that defendant Authority did not have the duty to furnish police protection; that the government was responsible for providing such protection. A careful review of Goldberg evidences that the issue involved and discussed related only to that issue duty of the landlord to provide police protection for the benefit of its tenants and not its duty as to furnishing locks or other means of controlling ingress to the interior of the buildings. It is noteworthy that, in distinguishing the duty of the landlord in that case from duties of landlords generally insofar as tenant protection is concerned, it referred to McCappin v. Park Capitol Corp., 42 N.J.Super. 169, 126 A.2d 51 (App.Div.1956), annotated in 58 A.L.R.2d 1289 (1958). We discuss this case Infra.

The second of these cases is Braitman v. Overlook Terrace Corp., 68 N.J. 368, 346 A.2d 76 (1975). The court there upheld the liability of the landlord to a tenant for loss occasioned by theft because of the landlord's negligence in failing to repair the defective deadlock on the door of the tenant's apartment notwithstanding the receipt of notice of the defective condition by the landlord. The court held that Goldberg was not controlling by reason of the narrow issue in that case and the differences in the facts. It concluded 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. (at 383, 346 A.2d 76)

Contrary to the attempt of defendant to distinguish Braitman because of the statutory duty, N.J.S.A. 55:13A-7, of the landlord to supply appropriate locks, Braitman alluded to the statutory duty only as an "additional source" of the landlord's liability. The keynote of the decision in Braitman was simply that liability of the landlord was properly posited upon familiar negligence concepts. In other words, as held in Goldberg, supra, as yet ¹ there is no duty, as such, on the part of landlords without more to protect tenants from the crimes of third persons. Whether there is a duty in a given case depends upon whether there is a basis in terms of negligence concepts to raise such duty. It follows, then, that the fact that the injury is caused by criminal conduct in and by itself does not make the landlord liable. It is also true that the fact that the injury was caused by criminal acts does not insulate a landlord from liability.

Thus, the court in Braitman (68 N.J. at 381, 346 A.2d 76) agreed with the Appellate Division's analysis in Zinck v. Whelan, 120 N.J.Super. 432, 294 A.2d 727 (1972), as to the foreseeable consequences of negligence in relation to the intervention of the activity of a thief. In Zinck the court held that the negligence or the ultimate liability of one who left the ignition key in a parked unlocked automobile to one who was injured by the negligence of the thief in the operation of the vehicle was for the jury. As stated in Zinck (at 445, 294 A.2d at 734), "Foreseeability can in appropriate contexts extend to criminal activity by third persons." See also Hill v. Yaskin, 75 N.J. 139, 380 A.2d 1107 (1977), and Genovay v. Fox, 50 N.J.Super. 538, 550, 143 A.2d 229 (App.Div.1958), rev. on other grds. 29 N.J. 436, 149 A.2d 212 (1959).

In Czech v. Aspen Industrial Center, 145 N.J.Super. 597, 368 A.2d 938 (App.Div.1976), certif. den. 73 N.J. 48, 372 A.2d 313 (1977), the court refused to impose liability on the owner of a factory building in which plaintiff, an employee of a tenant, had been mugged while ascending the common stairway leading to her place of employment. However, the court decided the case in cognizance of the fact that the attack had taken place in a commercial setting:

We are not here concerned with an apartment house or similar residential premises where the landlord had notice of a particular defect which required correction in order to minimize the probability of the occurrence of a criminal event. (at 600, 368 A.2d at 939, citing Braitman, supra )

The court in McCappin v. Park Capitol Corp., supra, held that tenants could not recover for their losses by thefts from their apartment as against their multiple-apartment building landlord solely by reason of the failure of plaintiffs to establish proximate cause. The court did say, however:

* * * Recovery against a landlord for loss sustained because of theft must be predicated either upon the breach of a contractual obligation or upon a showing of negligence constituting the proximate cause of the loss. Peter Piper Tailoring Co. v. Dobbin, 195 Mo.App. 435, 192 S.W. 1044 (App.Ct.1917); Benjamin v. Brooklyn Trust Co., 185 Misc. 296, 57 N.Y.S.2d 816 (Sup.Ct.1945) appeal denied 269 App.Div. 939, 57 N.Y.S.2d 846 (1945); Cf. Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693 (Sup.Ct.1933). (42 N.J.Super. at 172, 126 A.2d at 52)

We are of the view that in the instant case plaintiff produced sufficient proof to require that the factfinder, the jury, determine whether defendant was negligent. Although police records disclosed no prior reported criminal acts within the premises, the apartment building was in a neighborhood in which there had been civil disturbances in the years 1969-1971. There was testimony that in the period 1970-1973 there were many burglaries and crimes, such as purse-snatching, in plaintiff's neighborhood, making it a high-crime area. Cf. Hill v. Yaskin, supra, 75 N.J. at 146, 380 A.2d 1107; that prior to the mugging defendant had received actual notice of unauthorized persons being in the apartment building. These included intoxicated persons seen in the rear of the building and in the cellar. Defendant herself had allegedly reported to defendant a cellar break-in prior to the date when she was attacked. Furthermore, according to plaintiff, defendant had agreed to install locks on the front door after having been informed by her of the break-in.

Defendant testified that he did not discuss the possibility of installing a lock on the front door with plaintiff or with any other tenant. But he answered plaintiff's interrogatory about whether there was a lock on the door of the building by stating, "There was always lighting in the common areas of said building. At that time, tenants did not want locks on the front door." When questioned about the interrogatory, defendant responded that the tenants' reluctance to have a lock was communicated to him after the...