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Deborah Brown v. Gkv Preservation Partnership


April 21, 2011


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

Per curiam.


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, depressed and phobic. He said his treatment had been unable to relieve her symptoms.

Defendant's defense at trial consisted of reading a portion of plaintiff's deposition in which she said that she was not certain of the exact day on which she was bitten or how long the extreme conditions of rodent infestation had continued. Defense counsel's summation focused on facial inconsistencies between plaintiff's trial testimony and this deposition testimony to argue that plaintiff had failed to prove that a rodent had bitten her on November 14, 2005. The jury, by its verdict, rejected this argument.

Defendant raises the following arguments on appeal for our consideration.



We turn first to defendant's contention that the trial court incorrectly denied its pretrial motion for summary judgment. Defendant's motion for summary judgment was premised on plaintiff not having an expert to testify either that she was bitten by a rodent or that defendant did not exercise adequate measures to control rodents. The standard governing a trial court's consideration of a motion for summary judgment is well-known: the motion should be granted only if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When deciding if a genuine issue of material fact exists, the court must view the competent evidence and inferences that may reasonably be deduced therefrom in a light most favorable to the party opposing the motion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).

Plaintiff opposed this motion in part by submitting records from St. Barnabas Medical Center that listed a principal diagnosis of "probable rat-bite fever" as well as notes taken during her admission that stated that she had reported to the medical personnel her belief she may have been bitten by a mouse. Defendant pointed, as it did at trial, to her deposition testimony when she was unable to pinpoint the exact date she was bitten and did not know what bit her. The trial court correctly concluded that defendant had not established that it was entitled to summary judgment.

The precise date upon which plaintiff was bitten was not an essential element of plaintiff's claim so long as it occurred prior to plaintiff becoming ill. Plaintiff had no uncertainty with respect to that. That plaintiff may have been unable to recall the precise date of the incident was an appropriate factor for the jury to consider as it assessed the credibility of her claims; it was not an appropriate basis to grant judgment to defendant as a matter of law.

Additionally, plaintiff's deposition testimony as to the conditions under which she was forced to live in her apartment provided a more than sufficient basis for the trial court to deny defendant's motion. There was no dispute that defendant controlled the premises for more than a year prior to this incident, affording it ample opportunity to correct those conditions. Further, her testimony with respect to those conditions, if accepted, established defendant's failure to bring the rodent infestation to an end.

Defendant presents an additional complaint with respect to its summary judgment motion, that the trial court incorrectly permitted plaintiff to re-open discovery by submitting an expert report from Dr. Latimer. We see no abuse of discretion by the trial court, and defendant was not unfairly prejudiced. It had the opportunity to submit a contrary expert report if it had elected to do so.


Defendant contends that the trial court's decision to admit a portion of plaintiff's medical record from St. Barnabas into evidence was improper, in light of the fact that plaintiff did not present an expert medical witness to testify with respect to her injury. Defendant argues the document was hearsay and thus inadmissible. In the context of this trial, we disagree.

At trial, defense counsel cross-examined plaintiff extensively with respect to her deposition testimony, in which she said she did not know what caused the sore on her side, in contrast with her trial testimony, in which she said it was the result of a rodent bite. At the conclusion of her testimony, plaintiff's attorney offered one page from her medical records at St. Barnabas, which read in pertinent part:

CC: Dizziness x 2 days

HD1: Pt c/o of generalized weakness and fatigue x 2 days. She was bitten by a mouse in her bed on Sun. night. The following day pt started developing sore throat . . . .

We are satisfied the trial court properly admitted this sheet under N.J.R.E. 803(a)(2). This evidence rule provides that a statement is not excludable as hearsay if it was previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement . . . is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication . . . .

Defendant, through its cross-examination, was clearly attempting to demonstrate that plaintiff's allegation that she was bitten by a rodent was of recent origin. Her statement contained in the hospital records was properly admissible to rebut this contention. There was no abuse by the trial court of the discretion vested in it when dealing with the admissibility of evidence. Because it was admissible under N.J.R.E. 803(a)(2), we do not find it necessary to address whether it would also be admissible under N.J.R.E. 803(c)(4) as a statement "made in good faith for purposes of medical diagnosis or treatment."


Plaintiff sought to have the trial court include in its instructions a charge on the principle of comparative fault. The trial court declined to do so, and defendant argues on appeal that this was error. Defendant's claim of comparative fault, however, rests upon the fact that plaintiff did not earlier vacate the home in which she had resided for more than twenty years and for which she dutifully paid rent. There was no evidence at trial of any conduct on the part of plaintiff that contributed in any way to the conditions to which she was subjected. We do not deem this argument to have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A second aspect of defendant's challenge to the charge given by the trial court was the court's decision to include as part of its instructions language from N.J.A.C. 5:10-10.2, dealing with a landlord's duty to eliminate infestations. The trial court instructed the jury in the following manner:

The plaintiff here alleges that the landlord was negligent because it failed to exercise reasonable care by failing to exterminate successfully the mice in her apartment. The plaintiff also alleges that the landlord was negligent, because it violated a regulation. The plaintiff claims that the landlord violated the following regulation that requires landlords to furnish habitable residential premises.

The New Jersey Administrative Code provides that every owner shall be responsible for the eradication of any insects, rats, or other pests where the infestation exists in two or more units of dwelling spaces or common areas. All buildings subject to this chapter shall be made rat proof, and shall be maintained in a condition free from infestation. Such rat proofing and pest extermination shall include but is not limited to the following.

Prevention of entrance by blocking off or stopping up passages by which rats may secure entry from the exterior with rat impervious material. Prevention of interior infestation by elimination of sources of food, and access thereto. Prevention of any vertical travel of vermin through pipe chases or other similar methods of travel.

Now, these regulatory standards establish a standard of conduct for landlords. If the defendant violated the regulation that violation may be considered by you as evidence of the defendant's negligence. However, such violations are not conclusive on the issue of the defendant's negligence, and you are to consider all evidence and circumstances in reaching your decision as to whether the landlord was negligent in this case.

"It is entirely appropriate in an action to establish civil liability to consider the landlord's statutory and administrative responsibilities to his tenants to furnish habitable residential premises." Trentacost v. Brussel, 82 N.J. 214, 230 (1980). The regulatory scheme in governing the habitability of multifamily dwellings "is thus available as evidence for determining the duty owed by landlords to tenants." Ibid.

Violation of a regulatory duty of care is not conclusive on the issue of negligence, but it is a circumstance that the trier of fact should consider in assessing liability. Alloway v. Bradlees, Inc., 157 N.J. 221, 236 (1999); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 385 (1975). Plaintiff was indisputably a member of the class for whose benefit the regulatory standard was established. Braitman, supra, 68 N.J. at 385-86.

There is no question that Georgia King Village is a multiple dwelling as defined in N.J.S.A. 55:13A-3(k) and is therefore subject to the requirements of N.J.A.C. 5:10-10.2. There is also no question that plaintiff was a member of the class of persons for whose benefit the regulation was promulgated. Thus, plaintiff was entitled to rely on N.J.A.C. 5:10-10.2 as evidence of defendant's negligence. Defendant's arguments concerning the fairness of the regulation are irrelevant.


Defendant's final argument is that the trial court erred in denying its post-trial motions. We reject, as did the trial court, defendant's contention that the trial was about a mouse bite. The bulk of the trial was about the intolerable conditions in which plaintiff was forced to live, defendant's failure to provide any remedy, and the impact of those conditions upon her.

We review defendant's motions in turn. Defendant sought judgment notwithstanding the verdict under Rule 4:40-2. When a trial court is presented with such a motion, it applies a somewhat mechanical standard that does not involve a weighing of the evidence presented at trial. Rather, it must view that evidence most favorably to the party opposing the motion and grant that party all favorable inferences that could be drawn from that evidence. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). If reasonable minds could differ as to whether that evidence would support the verdict, the motion must be denied. Id. at 5. We are satisfied that the evidence that plaintiff presented at trial, which we have set forth earlier during the course of this opinion, was more than sufficient to support the jury's verdict. We are, accordingly, also satisfied that the trial court correctly denied defendant's motion for judgment notwithstanding the verdict.

Defendant also filed a motion seeking a new trial under Rule 4:49-1(a). A trial court may grant such a motion if, after giving due regard to the opportunity of the jury to pass on the credibility of witnesses, it determines that "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Consideration of a motion for a new trial, as opposed to a motion for judgment notwithstanding the verdict, requires a diligent and conscientious evaluation of the evidence presented at trial, including "so-called 'demeanor evidence,' and the intangible 'feel of the case.'" Dolson, supra, 55 N.J. at 6. The same standard governs an appellate court reviewing the decision of a trial court on a motion for a new trial, save for the fact that the appellate court must defer to the trial court's assessment of credibility, demeanor and other intangible factors. There are no grounds upon which we could conclude that the trial court erred in denying defendant's motion for a new trial.

Defendant's final motion was for remittitur, which rests upon "the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 (2001) (citation omitted). It "is an accepted procedure to correct an excessive jury award without necessitating the expense and delay of a new trial." Iacono v. St. Peter's Med. Ctr., 334 N.J. Super. 547, 555 (App. Div. 2000).

When presented with a motion for remittitur, a trial court must be careful "not [to] interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock [its] conscience and to convince [it] that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977) (citation omitted).

The standard applied to appellate review differs only in the deference the appellate court must accord the trial court's "feel of the case." Id. at 600. The Supreme Court recently restated this standard, stating that "[t]he role of an appellate court 'in assessing a jury verdict for excessiveness is to assure that compensatory damages awarded to a plaintiff encompass no more than the amount that will make the plaintiff whole.'" Besler v Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 577 (2010) (quoting Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 228 (2008)).

Here, plaintiff testified in detail about how the rodent infestation made it impossible for her to sleep, humiliated her in front of her family and friends, caused her to become socially isolated, and interfered with her daily living. She presented uncontroverted psychiatric testimony that this caused her to become depressed, anxious and phobic, conditions that would likely be permanent. In addition, she was hospitalized for six days and missed two months of work. The trial court correctly concluded that the jury's award of $160,000 was not so disproportionate as to shock the conscience, and thus it denied remittitur.



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