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Kuzmicz v. Ivy Hill Park Apartments

July 3, 1995


On appeal from Superior Court of New Jersey, Law Division, Essex County.

Approved for Publication July 3, 1995.

Before Judges King, D'Annunzio and Eichen. The opinion of the court was delivered by D'annunzio, J.A.D.

The opinion of the court was delivered by: D'annunzio


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 ...

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