On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10758-00.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Axelrad and R.B. Coleman.
In this personal injury negligence action against a public entity, plaintiff David Foster appeals from summary judgment. Defendant Newark Housing Authority cross-appeals, contending that if plaintiff is correct on his appeal, there are additional grounds on which it lost below that justify judgment in its favor. We will consider the appeal first.
In the course of his duties, Newark Police Detective David Foster was shot three times in an apartment located in a ten-building, Newark Housing Authority residential complex. He filed suit against the Housing Authority, alleging that its negligence permitted his attacker, who was not a tenant, to gain entrance into the building and then into the apartment where the shooting occurred.
Four days before trial, the Housing Authority filed two notices of motion: one sought a ruling that N.J.S.A. 59:4-2, the section of the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 59:12-3, concerned with dangerous conditions of public property, governed the case; and the other sought an order barring the testimony of plaintiff's expert. The only support for the motions was a certification of the Housing Authority's counsel summarizing the expert's report. During argument of the motions, the Housing Authority asked for summary judgment. Although this request was obviously submitted in violation of the applicable court rule, R. 4:46-1, the judge ruled on it.
Detective Foster argued that N.J.S.A. 59:4-2 was inapplicable because of the Housing Authority's status as a landlord, but the judge agreed with the Housing Authority. The judge went on to accept as a fact that the outer door to the building had a lock that the Housing Authority had installed but had not made operational and that the Housing Authority had, in other ways, negligently failed to provide adequate security. But, applying N.J.S.A. 59:4-2, he found as a matter of law that the Housing Authority's conduct was not palpably unreasonable because Detective Foster was a police officer conducting a criminal investigation with knowledge that the trespasser might be on the property. Although he did not cite the common law fireman's rule, it appears that he may have been applying his understanding of it to this case.
We conclude that N.J.S.A. 59:4-2 governs here notwithstanding the Housing Authority's status as a landlord. We also conclude that L. 1993, c. 366 §§ 1 and 2, codified as N.J.S.A. 2A:62A-21 to -22, [the "Firefighters' Act"], which abrogated the fireman's rule, does not relieve the covered public employees, including police officers, from having to satisfy the requirements of the TCA. But since the record contains sufficient evidence to support a finding of liability under N.J.S.A. 59:4-2, we reverse and remand for trial.
On appeal the parties submitted extensive factual materials previously placed before another judge earlier in the case. Of course, the judge who granted summary judgment made no findings with respect to those materials, and therefore the parties are not entitled to our consideration of them on the appeal. However, the facts properly before us on the appeal, which include factual representations made to the trial judge by Detective Foster's attorney, without objection from the Housing Authority, would support these findings: criminal activity by non-tenants was an ongoing problem at the Housing Authority's complex; the front doors of all the buildings had locks that the Housing Authority installed to improve security but had not made operational; on November 24, 1998, Detective Foster entered the building with a female victim to accompany her to her apartment to obtain evidence against the victim's ex-boyfriend; the victim had to use her key to enter her apartment; her ex-boyfriend had entered her building through its unlocked door and had somehow also entered her apartment; Detective Foster was with the victim because her ex-boyfriend might be in the apartment; and when she and Detective Foster entered the apartment, her ex-boyfriend repeatedly shot Detective Foster without provocation, causing him severe injuries that ultimately led to his early retirement.
We turn first to Detective Foster's claim that when a public entity is a landlord its responsibility to tenants and visitors is governed by the common law applicable to commercial landlords and not by N.J.S.A. 59:4-2.*fn2 He argues that his position is supported by the following cases: Goldberg v. Housing Authority of Newark, 38 N.J. 578 (1962); Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975); Trentacost v. Brussel, 82 N.J. 214 (1980); McGlynn v. Parking Authority of Newark, 86 N.J. 551 (1981); Bligen v. Jersey City Housing Authority, 131 N.J. 123 (1993); and Lieberman v. Port Authority, 132 N.J. 76 (1993).
Since Goldberg was decided before the TCA was enacted in 1972, L. 1972, c. 45, § 1, it provides no support for Detective Foster's argument. Except for Bligen, the other cited cases are inapposite since they do not involve entities covered by the TCA. And Bligen supports the Housing Authority since it holds that a plaintiff alleging negligence based on a dangerous condition of public property "bears the heavy burden of establishing defendant's liability under the stringent provisions of the Tort Claims Act," and, more specifically, "under N.J.S.A. 59:4-2." Bligen, supra, 131 N.J. at 136-37. Furthermore, the ...