MARILYN MITCHELL v. CAPITOL MANAGEMENT CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5068-08T35068-08T3

MARILYN MITCHELL,

Plaintiff-Appellant,

v.

CAPITOL MANAGEMENT CORP.,

Defendant-Respondent.

_______________________________________

Argued May 5, 2010 - Decided June 17, 2010

Before Judges Stern and Newman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5510-07.

Aslan T. Soobzokov argued the cause for appellant.

Michael J. Marotte argued the cause for respondent (Schenck, Price, Smith & King, L.L.P., attorneys; Mr. Marotte, of counsel and on the brief; Sandra Calvert Nathans, on the brief).

PER CURIAM

Plaintiff Marilyn Mitchell appeals from an order directing a verdict in favor of defendant, Capitol Management Corp., at the end of the presentation of her case. We affirm.

Plaintiff entered into a lease agreement on September 8, 2006, with defendant for the rental of a one-bedroom apartment at the Kensington Apartment complex which consisted of approximately eight hundred apartment units. Her lease term began on September 15, 2006, and was to end on August 25, 2007, at a monthly rental of $935. On February 11, 2007, a Sunday, she reported to defendant's management office that there were bed bugs in her apartment. She appeared at the office at mid-morning on February 12 and was extremely agitated by the situation. A representative of defendant and an exterminator on staff went to plaintiff's apartment that afternoon to review the situation. An extermination was ordered to be undertaken that week. There was some difficulty in accessing the apartment because plaintiff had changed the lock without notifying defendant.

Because of the bed bug infestation, plaintiff discarded her furniture and clothing because she could not be guaranteed that the infestation could be completely eliminated. She also allegedly suffered physical and psychological injuries which were attributable to the bed bug bites that she sustained. Her psychiatric condition was diagnosed as post-traumatic stress disorder.

At trial, plaintiff testified to her discovery of this infestation, which she reported immediately. She never returned to occupy the apartment. Her ten-year old son was living with her at the time and slept in the same bed but apparently did not suffer any bed bug bites. Plaintiff moved in with her sister, and she formally vacated the apartment by the end of March 2007.

Romel Fernandez, the health inspector for the City of Woodbridge, acknowledged that a complaint was made to his office on February 16, 2007, by Arlene Guiterrez, a friend of plaintiff. He did not physically inspect the location but maintained contact with the parties to insure that the bed bug infestation was exterminated. He did not testify as an expert. Neither did he offer any opinion as to the origin of the infestation, migration of bed bugs, or any of their habits. He did describe that in contrast to "roaches," bed bugs bite and need blood to survive.

Plaintiff testified that she had spoken to the tenant of Apartment 2G, which was directly below her. That tenant, Regina O'Neil, indicated that she had a bed bug problem in June 2005, which was addressed by defendant. Other than the bed bug problem in Apartment 2G, there was no other specific evidence of any bed bug infestation throughout this large multi-apartment complex.

In granting the motion for a directed verdict, Judge Paley was satisfied that there was no proof of negligence or proximate cause. Plaintiff failed to show that defendant caused the infestation. There was no testimony as to where these bed bugs came from. For all that was known, the trial judge commented, they could have arrived on the furniture moved into the apartment. It was purely a matter of speculation. Furthermore, it was pointed out that there was no testimony about migrating habits of bed bugs which referred to the infestation in Apartment 2G. In the absence of any negligence, there was no linkage to proximate causation. Accordingly, the trial court entered a directed verdict in favor of defendant.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE EXISTENCE OF BED BUG INFESTATION AT A MULTI-UNIT APARTMENT COMPLEX IS A PRESUMPTION OF NEGLIGENCE, THE ORIGIN OF WHICH NEED NOT BE PROVEN BY A TENANT.

POINT II

THE CONTINUOUS EXISTENCE OF INFESTATION AT A MULTI-UNIT APARTMENT COMPLEX REQUIRES AGGRESSIVE MEASURES TO ERADICATE INFESTATION, FAILURE TO DO SO IS NEGLIGENCE.

We are satisfied that the trial court's granting of a directed verdict was proper. We affirm substantially for the reasons expressed by Judge Paley in his oral opinion of April 28, 2009. We, however, add the following brief comments.

We disagree with plaintiff that there is any presumption of negligence merely because bed bugs were found in her apartment. Negligence must be proved. As we observed in Dwyer v. Skiline Apartments, 123 N.J. Super. 48, 52 (App. Div.), aff'd, 63 N.J. 577 (1973),

the nexus between duty and liability is proof of negligence. Negligence in this context requires not only proof of the condition which caused the injury but that the condition was known or should have been known by the landlord prior to the occurrence, so that he had an opportunity to correct it.

In the Dwyer case, the issue involved whether there was actual or constructive notice of a latent defect. Here, there was no actual or constructive notice of any bed bug infestation.

The only reference was to an earlier infestation nearly two years before of the apartment below which plaintiff occupied. That, in itself, was not the kind of notice that would alert the landlord that a massive extermination effort had to be undertaken to protect this plaintiff.

Moreover, there was no evidence presented of any continuous infestation problem in this multi-unit apartment complex. Any knowledge of a prior bed bug infestation elsewhere in the building could not impute knowledge of a similar condition in plaintiff's apartment. Defendant could not be held to notice of a bed bug problem in a different apartment approximately two years later.

Plaintiff's position followed to its logical extreme would call for strict liability for the existence of this bed bug infestation. We rejected the application of strict liability in the Dwyer case. As we put it,

[t]o apply the broad brush of strict liability to a landlord-tenant relationship in a dwelling house would impose an unusual and unjust burden on property owners. It would mean that the landlord would be faced with liability for every injury claim resulting from any untoward condition in every cranny of the building, whether it is reasonably foreseeable or not . . . . Neither justice nor reason dictate the advisability of a change in landlord-tenant law which would permit recovery for personal injuries without proofs of deviation from a standard of reasonable care.

[Id. at 56.]

We are satisfied that defendant did not breach its duty of reasonable care, giving plaintiff the benefit of all favorable inferences, under the facts as presented. When advised of the bed bug problem, defendant went to the apartment the next day to investigate the situation and ordered extermination services for later that same week.

In connection with the lack of a showing of proximate cause, there was no evidence that anything defendant did or failed to do led to the bed bug infestation in Apartment 3G. In the absence of any negligence, there is no linkage to proximate cause. See Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996). Here, there were any number of possible sources for the presence of bed bugs in the apartment, none of which have any connection to defendant. The bed bugs could have been brought in on a piece of furniture or through an open window. No expert testimony was presented which could have even explained the origin of the bed bug infestation. We conclude, even accepting all inferences in favor of plaintiff, the evidence did not establish defendant's liability.

 
Affirmed.

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