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Trentacost v. Brussel

Decided: March 12, 1980.

FLORENCE TRENTACOST, PLAINTIFF-RESPONDENT,
v.
DR. NATHAN T. BRUSSEL, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 164 N.J. Super. 9 (1978).

For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Pashman, J. Schreiber, J., concurring. Justice Clifford joins in this opinion. Clifford, J., dissenting in part. Schreiber, J., concurring in the result. Clifford, J., concurring in the result and dissenting in part.

Pashman

[82 NJ Page 217] Once again this Court is asked to examine the contours of the relationship between residential landlords and their tenants.*fn1 Specifically, the question is whether a landlord who provides inadequate security for common areas of rental premises may be liable for failing to prevent a criminal assault upon a tenant. The trial court entered judgment for the tenant upon a jury's award of damages. The Appellate Division affirmed. 164 N.J. Super. 9 (App.Div.1978). We granted defendant's petition for

certification, 81 N.J. 48 (1979), to consider whether the landlord was obligated to secure the entrance to the common areas of plaintiff's building. We now affirm.

I

Facts

On the afternoon of December 21, 1973, plaintiff Florence Trentacost, returned to her apartment at 273 Monroe Street, Passaic, New Jersey, from an afternoon of shopping. After she had entered her building and reached the top of a flight of stairs leading to her apartment, someone grabbed her ankles from behind and dragged her down the stairs. Her attacker, who remains unknown, left her bleeding in the ground floor hallway but returned almost immediately to steal her purse. Conscious yet unable to speak, she lay helpless for several minutes until a tenant leaving the building noticed her. Another neighbor then called the police, who took plaintiff to a nearby hospital.

Mrs. Trentacost was hospitalized for 15 days. Her injuries included a dislocated right shoulder, fractures of the left shoulder, left ankle and jaw, lacerations about the mouth and broken teeth. She wore casts on her arms and leg for about a month and a half, and at the time of trial in late 1976 still suffered from pain and loss of mobility.

At the time of the attack, plaintiff was 61 years old and a widow. She had rented her four-room apartment for more than ten years from defendant, Dr. Nathan T. Brussel. The building consisted of eight dwelling units located over street level stores with access provided by front and rear entrances. A padlock secured the back entrance, but there was no lock on the front door, which both plaintiff and apparently her assailant had used to enter the premises.

There was considerable evidence at trial regarding criminal and other suspicious activity in the vicinity of plaintiff's residence. A Passaic city detective testified that in the three years preceding the incident, the police had investigated from 75 to

100 crimes in the neighborhood, mostly burglaries and street muggings. Another policeman stated that "civil disturbances" had occurred in the area between 1969 and 1971. Two months before she was attacked, Mrs. Trentacost had herself reported to defendant an attempt to break into the building's cellar. At other times she had notified the landlord of the presence of unauthorized persons in the hallways. Plaintiff claimed the defendant had promised to install a lock on the front door, but he denied ever discussing the subject prior to the assault on plaintiff.

At the close of evidence, the trial court granted plaintiff's motion to strike the defense of contributory negligence. The judge instructed the jury in part as follows:

A landlord owes to his tenants the duty of exercising reasonable care to guard against foreseeable dangers arising from the use of premises in connection with those portions which remain within the landlord's control. * * * The relationship between a landlord and his tenant does not impose upon the landlord the duty to protect a tenant from the crime of third persons. Only upon proper proof that the landlord unreasonably enhanced the risk of the criminal activity by failing to take reasonable measures to safeguard the tenants from foreseeable criminal conduct and a showing of suitable notice of existing defects to the landlord can a tenant recover damages from his landlord.

After the jury returned a verdict for plaintiff of $3,000, the trial court denied defendant's motion for judgment notwithstanding the verdict. R. 4:40-2. When defendant refused to consent to an additur of $15,000, the court granted plaintiff's motion for a new trial as to damages. A second jury found damages in the sum of $25,000. Defendant then appealed.

In discussing the extent of the landlord's obligation to provide security measures for his tenants, the Appellate Division found our decision in Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975), to be controlling. 164 N.J. Super. at 14. According to the court, "[t]he keynote of the decision in Braitman was simply that the liability of the landlord was properly posited upon

familiar negligence concepts." Id. Examining the evidence, the court concluded there was sufficient support for finding that the absence of a lock on the entrance to the building, which was located in a high-crime neighborhood, created a foreseeable risk of harm to tenants. It was therefore a jury question whether the landlord had failed to take reasonable security measures to protect the tenants. Id. at 16. Rejecting defendant's other arguments regarding the sufficiency and admissibility of evidence, the Appellate Division affirmed.*fn2

II

Liability for Foreseeable Criminal Conduct

As the Appellate Division correctly recognized, Braitman supplies the focal point of controversy regarding the landlord's duty. In that case the tenants had suffered property loss resulting from theft because of a defective "dead bolt" lock on the apartment door. See 68 N.J. at 371-372. The trial court found that the remaining slip lock had not provided adequate security and that the landlord had received sufficient notice of the defective dead lock. Id. at 373. Since the robbery was within the scope of the foreseeable risks created by the inadequate security, the court found the landlord liable for negligence.

After the Appellate Division affirmed judgment for the tenants, 132 N.J. Super. 51 (App.Div.1974), this Court examined in detail the various evolving theories concerning the responsibilities of a landlord. We began by noting the traditional rule: "[T]he 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." 68 N.J. at 374 (citations

omitted). We went on, however, to cite with approval Kline v. 1500 Massachusetts Ave. Apartment Corp., 141 U.S.App.D.C. 370, 439 F.2d 477 (D.C.Cir.1970), as the leading case in the trend away from that tradition.

In fashioning a duty to provide tenant security, the court in Kline drew upon three sources. The first, described as "the logic of the situation itself," id. at 376, 439 F.2d at 483, was the recognition that the landlord was in a better economic position than the tenant to take precautionary measures. The court adopted this as a predicate for the landlord's tort liability. Id. at 377, 439 F.2d at 484. Relying on existing law in the District of Columbia, the court noted as a second source an implied contractual undertaking to maintain those protective measures in effect at the beginning of the lease term. Id. at 378, 439 F.2d at 485. A third source was the law governing an innkeeper's duties towards his guests. The court thought this doctrine provided a more appropriate analogy than that of a medieval agrarian lease -- the formal predecessor of the modern urban residential lease -- for determining the landlord's obligations. See id. at 375, 378, 439 F.2d at 482, 485; see also Javins v. First Nat'l Realty Corp., 138 U.S.App.D.C. 369, 375-377, 428 F.2d 1071, 1077-1079 (D.C.Cir.1970), cert. den., 400 U.S. 925, 91 S. Ct. 186, 27 L. Ed. 2d 185 (1970). These three bases provided a foundation for enlarging the landlord's duty to maintain common areas of rental premises so as to safeguard tenants from foreseeable criminal conduct of third parties. Kline, 141 U.S.App.D.C. at 380, 439 F.2d at 487.

Although a majority of the Court in Braitman did not embrace the reasoning of Kline, see Braitman, 68 N.J. at 387-388 (separate views of Hughes, C.J., Sullivan and Pashman, JJ.), we did acknowledge "a developing judicial reluctance to allow landlords ...


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