On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5510-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Newman.
Plaintiff Marilyn Mitchell appeals from an order directing a verdict in favor of defendant, Capitol Management Corp., at the end of the presentation of her case. We affirm.
Plaintiff entered into a lease agreement on September 8, 2006, with defendant for the rental of a one-bedroom apartment at the Kensington Apartment complex which consisted of approximately eight hundred apartment units. Her lease term began on September 15, 2006, and was to end on August 25, 2007, at a monthly rental of $935. On February 11, 2007, a Sunday, she reported to defendant's management office that there were bed bugs in her apartment. She appeared at the office at mid-morning on February 12 and was extremely agitated by the situation. A representative of defendant and an exterminator on staff went to plaintiff's apartment that afternoon to review the situation. An extermination was ordered to be undertaken that week. There was some difficulty in accessing the apartment because plaintiff had changed the lock without notifying defendant.
Because of the bed bug infestation, plaintiff discarded her furniture and clothing because she could not be guaranteed that the infestation could be completely eliminated. She also allegedly suffered physical and psychological injuries which were attributable to the bed bug bites that she sustained. Her psychiatric condition was diagnosed as post-traumatic stress disorder.
At trial, plaintiff testified to her discovery of this infestation, which she reported immediately. She never returned to occupy the apartment. Her ten-year old son was living with her at the time and slept in the same bed but apparently did not suffer any bed bug bites. Plaintiff moved in with her sister, and she formally vacated the apartment by the end of March 2007.
Romel Fernandez, the health inspector for the City of Woodbridge, acknowledged that a complaint was made to his office on February 16, 2007, by Arlene Guiterrez, a friend of plaintiff. He did not physically inspect the location but maintained contact with the parties to insure that the bed bug infestation was exterminated. He did not testify as an expert. Neither did he offer any opinion as to the origin of the infestation, migration of bed bugs, or any of their habits. He did describe that in contrast to "roaches," bed bugs bite and need blood to survive.
Plaintiff testified that she had spoken to the tenant of Apartment 2G, which was directly below her. That tenant, Regina O'Neil, indicated that she had a bed bug problem in June 2005, which was addressed by defendant. Other than the bed bug problem in Apartment 2G, there was no other specific evidence of any bed bug infestation throughout this large multi-apartment complex.
In granting the motion for a directed verdict, Judge Paley was satisfied that there was no proof of negligence or proximate cause. Plaintiff failed to show that defendant caused the infestation. There was no testimony as to where these bed bugs came from. For all that was known, the trial judge commented, they could have arrived on the furniture moved into the apartment. It was purely a matter of speculation. Furthermore, it was pointed out that there was no testimony about migrating habits of bed bugs which referred to the infestation in Apartment 2G. In the absence of any negligence, there was no linkage to proximate causation. Accordingly, the trial court entered a directed verdict in favor of defendant.
On appeal, defendant raises the following issues for our consideration:
THE EXISTENCE OF BED BUG INFESTATION AT A MULTI-UNIT APARTMENT COMPLEX IS A PRESUMPTION OF NEGLIGENCE, THE ORIGIN OF WHICH ...