On appeal from the Superior Court of New Jersey, Special Civil Part, Small Claims, Essex County, Docket No. SC-3373-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2008
Before Judges Sapp-Peterson and Alvarez.
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.*fn1 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 5668 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 ...