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Deborah Brown v. Gkv Preservation Partnership

April 21, 2011

DEBORAH BROWN, PLAINTIFF-RESPONDENT,
v.
GKV PRESERVATION PARTNERSHIP, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5613-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2011

Before Judges Wefing, Payne and Koblitz.

Plaintiff rented an apartment in premises managed by defendant. She filed a two-count complaint, alleging negligent maintenance of the premises and breach of the covenant of habitability and fitness for intended use. The trial court dismissed the latter count, and the jury awarded plaintiff $160,000 on the former. Defendant has appealed from the judgment that was entered after the trial court denied its motions for judgment notwithstanding the verdict, a new trial or remittitur. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff rented a townhouse at the Georgia King Village housing complex in Newark in which she had resided for more than twenty years, raising her four children. Defendant took over management of the complex towards the end of 2004. Plaintiff testified that conditions deteriorated significantly from that point forward.

In particular, she testified that while there had always been a few rodents in and around the area, the rodent population jumped once defendant took over. They ran freely through her apartment, gnawing her furniture and clothing. She was compelled to wash her kitchen counters and stove with bleach every day. She recounted one incident that occurred while she was at church; as she stood up with the congregation, a dead mouse fell from her pants. She told the jury of the embarrassment she experienced at this, as well as the fact that she stopped inviting people to her apartment because she was ashamed and thought guests would be certain she was dirty.

Plaintiff herself was afraid of rodents. After she saw rodents in her bedroom on the second floor, she moved to what had been her son's bedroom on the third floor and slept in the bottom bunk. After she discovered evidence of rodents there, she moved to the top bunk. Later she was forced to move to the living room couch, where she kept the lights and television on all night in an effort to keep the intruders at bay. When she found a dead rat on the couch, she brought into the living room a chaise lounge intended for outdoor use and tried to sleep on that.

She continually complained to defendant about conditions in the apartment, but did not receive relief. She retained an attorney, who wrote at least six letters to defendant on plaintiff's behalf, again without success.

Defendant did have an exterminator treat the apartment on a monthly basis, but defendant did not do anything to block up the various points at which the rodents could obtain access. The rodents, for instance, had gnawed a hole in the wall near the front door as well as two holes in the basement. These were never closed up. Further, the access door between plaintiff's basement and the building's crawl space was broken and never repaired. Plaintiff and her oldest daughter did try to block the holes with steel wool, but their efforts were similarly unsuccessful.

Eventually, acting on the advice of her attorney, plaintiff withheld her rent payments, depositing them regularly into an escrow account. Defendant filed an action for unpaid rent that was ultimately settled when defendant offered plaintiff the option of paying the accumulated rent and permitting it the opportunity to make needed repairs or keeping the money and vacating the apartment within three weeks. Plaintiff selected the latter option and began preparations to move.

Plaintiff was scheduled to move on November 15, 2005. On the evening of November 14, she worked to finish the final steps of the packing and fell asleep on the chaise lounge in the living room. When she woke up on the morning of November 15, she noticed a large sore on her side, which she showed to her daughter when she arrived to help her mother with the process of moving. She told her daughter that she thought something had bitten her during the night. Her daughter took a picture of her mother's wound, which was displayed to the jury during the trial.

The two worked during the day and as they did so, the condition of the wound got worse; it became redder and puffier and began to ooze. Plaintiff started to feel ill and got progressively worse during the day. After the truck left with the final load of plaintiff's possessions, plaintiff's daughter drove her to the emergency room at St. Barnabas Medical Center where plaintiff told the intake nurse that she thought she had been bitten by a mouse. She was admitted to the hospital and remained there for six days, where she was treated intravenously with medications. She was discharged with instructions to continue with antibiotics. She was out of work for approximately two months.

By the time the matter was tried, plaintiff was living in a rodent-free apartment in Morris County. She continued, however, to sleep in the living room on a chaise lounge, with the lights and television on. Asked at trial if she knew that a mouse had bitten her on the night of November 14 to November 15, she replied, "Well, I can tell you this . . . and I'm being totally honest with everybody here. I don't know what bit me, but I didn't bite myself."

Plaintiff was so distressed at the experience that she sought help from a psychiatrist, Robert Latimer, M.D. Dr. Latimer testified on plaintiff's behalf at trial, outlining the treatment he had provided for plaintiff and the impact of this experience upon her. He told the jury that it caused plaintiff to become anxious, ...


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