KESHA PEPPERS v. ESSEX PLAZA MANAGEMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3366-07T33366-07T3

KESHA PEPPERS,

Plaintiff-Respondent,

v.

ESSEX PLAZA MANAGEMENT,

Defendant-Appellant.

______________________________________

 

Submitted November 3, 2008 - Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Special Civil Part, Small Claims, Essex County, Docket No. SC-3373-07.

Levy, Ehrlich & Petriello, attorneys for appellant (Andrew B. Sobel, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Essex Plaza Management appeals from the trial court decision, following a bench trial, that it breached a duty of care owed to plaintiff Kesha Peppers, a tenant in one of its residential apartment complexes located in Newark. The court found that defendant failed to take reasonable measures to ensure the safety of Peppers, who was Maced by an unknown individual as she exited an elevator into the apartment complex's hallway. The court awarded plaintiff $3,000 in damages. On appeal, defendant contends that its compliance with the Newark security guard ordinance for multiple dwellings precluded a finding of negligent security and that because plaintiff failed to present any proof of damages, the court improperly awarded the $3,000 judgment. We reverse.

Plaintiff was a tenant at Essex Plaza, located at 15-31 Pennington Street in Newark. It was one of twelve multi-family buildings owned by defendant located within a six-block radius of each other. According to plaintiff, management had directed tenants to report criminal activity they observed to security or to Newark police.

The evidence presented at trial disclosed that on July 24, 2007, plaintiff reported criminal activity around her building to Newark police, who responded to her call and arrested a suspected drug dealer identified by her daughter. Later that evening, she and her daughter were threatened by the arrestee's friend. Plaintiff called her brother and her cousin, a Newark police officer. When they arrived at the scene, the same person who had threatened her attempted to stab her brother but was stopped by her cousin and then arrested.

In a letter to plaintiff from defendant's vice president, Maddy James, that plaintiff received on July 30, James advised plaintiff that the complex's security representative spoke to Newark police and plaintiff about the July 24 incident. Plaintiff testified that no one "said one word to [her] about -- they never made out a report or anything that happened." The next day, plaintiff apparently wanted to discuss the letter with security, so after awakening, she sat in her hallway "between five o'clock a.m. and 5:30 a.m. and [she] waited for security to come around. There was no security." She indicated that she called security around 5:30 a.m. to inquire whether anyone was making the rounds and was told by the security guard who took the call that he was the only one there. Finally, between 8:15 a.m. and 8:30 a.m., she saw the security supervisor, Alfred Hayes, making rounds in her building.

Later in the afternoon of July 31, accompanied by her neighbor, plaintiff exited the building elevator and a "junkie, who does not live in the building," approached her and "sprayed [her] with [M]ace on the side of [her] face . . . and on [her] arm." Plaintiff ran to the security booth located inside 1060 Broad Street (1060) and reported the incident to Morris Ravanel (Ravanel), the security officer who was seated in the booth. She then ran home to wash off the Mace. As she approached the entrance to her building, she was taunted "by the drug dealers and the gang members out there laughing at [her]." She told the group that she knew one of them was involved in the matter, and at that point one member of the assembled group brandished a gun at her, while she was at the same time on the phone with her cousin, the Newark police officer who had come to her assistance on July 24. She indicated that "seven un-uniformed cops" arrived on the scene and chased the group away. While she was waiting for uniformed police to arrive, defendant's security guards Morris and Hayes arrived but never spoke to her.

Hayes testified that he is the security supervisor for JMS Investigations (JMS). JMS provides security for defendant's twelve apartment complexes, including plaintiff's building, that are all located within a six-block area. He explained that plaintiff's building was located about one block from the security booth located inside 1060. He testified that on each shift there were three security guards, with one guard stationed at the security booth housed at 1060, "which is dispatch[,]" and the other two acted as rovers for all twelve buildings. He stated that he was the armed security guard on the premises and, as required by a Newark municipal ordinance, was present on the premises for eight hours of the twenty-four hour day.

Under cross-examination by plaintiff, Hayes stated that on July 31, he first learned about the attack upon plaintiff when he was called via radio by Ravanel, who was stationed at the security booth. He then responded from his location at 5 668 Orchard Street to 15-31 Pennington along with Morris, who was relieved at the booth by another security officer, Calvin Dorsi, who had been checking 1060's elevator alarm. When he and Ravanel arrived at plaintiff's building, they observed plaintiff, who was "screaming, cursing and outraged[,]" as well as other tenants. Newark police responded, canvassed the area, did not find anybody and left the scene. He then returned to 1060.

At the conclusion of the testimony, the court found plaintiff's testimony that one security guard was on duty more credible than Hayes' testimony that there were three security guards on the premises at all times. The court stated:

The testimony of Miss Peppers is highly believable. There's no question that she's had some difficulties with the criminal elements that tend to frequent that area, and particularly that -- specifically 15-31 Pennington. And that there were at least two incidents of which the testimony is basically uncontroverted regarding the . . . two incidents that occurred.

This Court is more -- well, I'm concerned about both incidents because there's a letter from Essex Plaza Management, which I marked P-2 for identification, dated July 30th, from Miss James to Miss Peppers, which recognizes her complaints and states that we provide 24-hour security. It says, "The officers work in tandem with the Newark Police Department to lessen criminal activity," et cetera, et cetera.

And they say, also, our security force was present at 15-31 Pennington Street on the evening in question, which I believe they were. They go on to say, "As you are aware, drug use and drug sales are a part of our American fabric." That statement I don't accept. I don't believe that drug sales and drug use are a part of American fabric at all. And although they are prevalent in the City of Newark, it's illegal. And more, much more obviously, they don't need -- nobody needs to hear me say that much more needs to be done about it, but it does.

Nevertheless, Mr. Hayes testified that there was always three guards present, and Miss Peppers in the height of her emotional excitement, and I accept the testimony by Mr. Hayes that she was emotionally distraught and . . . in a high emotional state; and, yet, in that statement, she spoke to -- and I believe it was Mr. Ravanel, whoever she spoke to, she was told that there was only one security guard, even though they, by their own admission, are supposed to have three security guards there.

The court found that defendant breached a duty of care owed to plaintiff and entered judgment in favor of plaintiff. The court awarded $3,000 in damages for pain and suffering to plaintiff.

On appeal, defendant contends its compliance with Newark's ordinance governing security for multiple dwellings precluded a finding of negligent security. Defendant also contends the court improperly awarded damages because plaintiff presented no proof she sustained any injuries resulting from the spraying of Mace in her face.

For more than a quarter of a century, the law has been settled in this state that a landlord is under a duty to employ reasonable measures to safeguard its tenants from foreseeable criminal acts. See Trentacost v. Brussel, 82 N.J. 214, 231-32 (1980) (holding that a landlord is required to "take reasonable security measures for tenant protection on the premises"); see also Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 500, 516-17 (1997) (imposing liability upon supermarket for customer's murder after her abduction from its parking lot in view of supermarket being on notice of prior history of criminal behavior in the parking lot and therefore the probability of criminal acts was foreseeable even though prior crimes on property were "lesser in degree"); Butler v. Acme Mkts., Inc., 89 N.J. 270, 274, 280 (1982) (holding that supermarket could be liable to customer who was mugged in supermarket's parking lot because of its knowledge of other muggings on premises during preceding year); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 371-72, 382-83 (1975) (holding landlord could be liable for burglary of tenant's apartment because landlord had breached duty of care by failing to provide functioning deadbolt lock).

Thus, in those circumstances where the evidence reveals that the landlord knew or should have known of a pattern of criminal activity on its premises that poses a foreseeable risk of harm to its tenants and fails to take the necessary steps to address the danger posed by such activity, the landlord does not avoid liability simply because the criminal act was committed by a third party who was not within his control. See Trentacost, supra, 82 N.J. at 222; see also Taneian v. Meghrigian, 15 N.J. 267, 281 (1954) (describing landlord's duty of reasonable care to protect tenants against dangers in common areas). Nonetheless, a landlord is not an insurer against the commission of all criminal acts. Braitman, supra, 68 N.J. at 375 (noting a landlord does not insure his tenants' safety, but also noting that a landlord has a duty to protect in "contemporary urban apartment living"). As the Court has explained:

[T]he scope of a landlord's duty to exercise due care to prevent foreseeable harm to tenants is defined not only by the precise boundaries of its premises but also by what is reasonable and fair, under the totality of the circumstances. A landlord acts negligently if it fails to take reasonable measures to protect its tenants from foreseeable, preventable harm. To act non-negligently is to take reasonable precautions to prevent the occurrence of foreseeable harm to others. What precautions are reasonable depends upon the risk of harm involved and the practicability of preventing it.

[Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 540 (1997) (internal quotations omitted) (internal citations omitted).]

Here, the court acknowledged that plaintiff lived in a high crime area and that she had had difficulties with the criminal elements that frequented the area, particularly in her building. The court did not find credible Hayes' testimony that there were always three guards on duty at all times and specifically found plaintiff's testimony that there was only one security guard present on July 31 more credible. The problem with this latter finding is that plaintiff testified she was told there was only one guard on duty earlier on July 31, when she telephoned security around 6:00 a.m.

Plaintiff never testified that less than three security guards were on duty at the time she was Maced. Plaintiff testified that after she reported the incident to Ravanel, she ran home to wash the Mace off her face and thereafter saw Ravanel and Hayes. Hayes testified that Ravanel was relieved from the security booth at 1060 by Dorsi, who had been checking 1060's elevator alarm. Moreover, the court stated it believed Hayes' testimony that there were three guards on duty at the time the incident occurred. Thus, a premise upon which the court found liability, namely the absence of the three security guards on the premises at the relevant time on July 31, was incorrect. If the court was of the view that the absence of three security guards earlier in the day was causally related to the resulting harm to plaintiff later that day, it made no specific factual findings in that regard.

Additionally, the court found that defendant "need[ed] to do a better job in protecting people like Miss Peppers to make sure that they can come [and] go from their apartments and that their children can come and go from their apartments." The court reached this decision without specifically identifying what additional measures defendant was under a duty to perform in order to protect plaintiff.

In 515 Assocs. v. City of Newark, 132 N.J. 180, 198 (1993), apartment building owners challenged the constitutionality of Newark's ordinance governing the provision of security guards at multi-dwelling apartment complexes under the New Jersey Constitution. Id. at 183. The ordinance required owners of apartment complexes with greater than one hundred units to provide armed security guards on their premises. The trial court upheld the validity of the ordinance and we affirmed. Ibid. The Supreme Court granted certification. Ibid. Among the challenges advanced by the building owners was that passage of the ordinance was "an improper attempt by the municipality to delegate its governmental duty to provide police protection." Id. at 188. In rejecting this argument, the Court stated:

Nothing in the ordinance or its legislative history suggests that the guards would have the authority to investigate crimes or apprehend and prosecute offenders. That responsibility-which is an indispensable part of the police officer's function-is not part of the security guards' duties. If an armed security guard should intervene to prevent or stop a crime, the guard would have no duty to investigate or take steps to secure the criminal's arrest beyond those of an ordinary citizen. Police officers have also the right to engage in other law-enforcement activities that security guards do not, such as conducting investigative detention or warrantless searches in appropriate circumstances. Therefore, although the duties of these guards approach the line dividing security services from police services, we are fully satisfied that they do not cross that line.

[Id. at 192.]

Here, plaintiff testified that she believed she was the victim of a retaliatory attack because of her report of criminal activity to Newark police that resulted in the arrest of one person and later the arrest of the individual who threatened her, her daughter, and unsuccessfully attempted to stab her brother. To the extent she required police protection, this became the sole responsibility of Newark police. Goldberg v. Newark Hous. Auth., 38 N.J. 578, 592 (1962) (holding owner of multi-dwelling building has no duty to provide police protection); but see also, Braitman v. Overlook Terrace Corp., supra, 68 N.J. at 388 (finding landlord's liability for tenants' property losses due to burglaries could not be premised upon the landlord's failure to protect tenant from crime committed by a third party but could be based upon proof that the landlord increased the risk of burglaries failing to supply adequate locks).

Under our usual standards of appellate review, the factual findings of the trial judge in a non-jury trial merit deference when supported by substantial, credible evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The record upon which the court found that there had been a breach of duty owed to plaintiff was, in the first instance, based upon the court's erroneous conclusion that there was only one security guard on duty at the time plaintiff was Maced. Secondly, the only other articulated basis for the court's decision was its conclusion that not enough had been done to protect plaintiff from the attack to which she was eventually subjected, without any evidence presented by plaintiff as to what the additional measures should have been. We are convinced that here the judge's findings are not supported by substantial credible evidence in the record and therefore warrant reversal.

In view of our determination that the evidence did not support a finding of negligence on the part of defendant, we need not address whether the trial court erred in awarding plaintiff damages.

Reversed and remanded for the entry of a judgment of no cause in favor of defendant.

Following the July 31, 2007 incident that forms the basis of plaintiff's complaint against defendant, plaintiff moved to one of the other buildings owned by defendant, 13 Pennington Street.

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A-3366-07T3

December 12, 2008