NINA PAGAN VS. NEWARK HOUSING AUTHORITY (L-1541-12, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3296-14T4
NINA PAGAN,
Plaintiff-Appellant,
v.
NEWARK HOUSING AUTHORITY,
Defendant-Respondent.
______________________________________________
Argued August 15, 2017 – Decided October 2, 2017
Before Judges Messano and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-1541-12.
Jude Nelson argued the cause for appellant
(The Law Firm of Nelson & Associates, PA,
attorneys; Mr. Nelson, on the brief).
James G. Serritella argued the cause for
respondent (Biancamano & DiStefano, PC,
attorneys; Mr. Serritella, on the brief).
PER CURIAM
On January 30, 2011, plaintiff Nina Pagan was a tenant in a
building owned and managed by defendant Newark Housing Authority
(NHA) when an unknown and unidentified armed intruder viciously
attacked her inside her apartment. Although she admittedly had
no proof of a connection between the two events, plaintiff believed
the attack was in retaliation for her actions in April 2010,
following her six-year old son witnessing a murder outside the
apartment. Plaintiff reported that incident to NHA's management,
complaining that her son was traumatized by the events. About
three months later, plaintiff reported that her car was vandalized
while parked outside the apartment.
After the April 2010 incident, plaintiff requested transfer
to another NHA property, and NHA twice offered her units at other
sites. In each case, plaintiff refused the offer, citing the
conditions in the unit or criminal activity at the sites; at
plaintiff's request, NHA continued her on the authority's waiting
list for vacancies. After the assault, plaintiff filed an
emergency transfer request, and, in August 2011, NHA offered her
a unit at another complex, which plaintiff refused. NHA offered
plaintiff another unit in December, which she accepted, and NHA
transferred plaintiff in January 2013.
In the interim, in February 2012, plaintiff filed suit against
NHA, alleging negligence for: failing to supervise the common
areas of the complex and maintain the premises in a safe condition;
failing to relocate plaintiff; failing to comply with applicable
State and federal laws and regulations; and failing to exercise
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the degree of care required by law. NHA answered and discovery
ensued before NHA moved for summary judgment.
In his oral opinion on the record, the motion judge reviewed
certain provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-
3 (the TCA). He focused on plaintiff's contention that NHA was
liable for a dangerous condition on its property, N.J.S.A. 59:4-
2, or liable because it negligently failed to transfer her after
her son witnessed the murder in 2010. The judge concluded that
NHA could not be liable for a dangerous condition on its property
because of the criminal acts of third parties, and, in any event,
NHA's conduct was not "palpably unreasonable." As to plaintiff's
general negligence claim, the judge concluded there was no
"probable cause," i.e., it was mere speculation that the attack
resulted from the April 2010 incident. He also concluded NHA was
immune from liability pursuant to N.J.S.A. 59:5-4 (immunizing
public entities and employees "for failure to provide police
protection service or . . . sufficient police protection
service."). Lastly, the judge concluded plaintiff had not
sustained a "permanent loss of a bodily function, permanent
disfigurement or dismemberment" because of the attack. N.J.S.A.
59:9-2(d); Brooks v. Odom, 150 N.J. 395 (1997). The judge
dismissed plaintiff's complaint, and this appeal followed.
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Before us, plaintiff contends the judge misapplied summary
judgment standards, the TCA did not confer immunity upon NHA for
its negligent conduct in failing to transfer her and supervise its
employees, and the injuries she suffered were cognizable under
N.J.S.A. 59:9-2(d). We have considered these arguments in light
of the record and applicable legal standards. We affirm.
"[W]e review the trial court's grant of summary judgment de
novo under the same standard as the trial court." Cypress Point
Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016)
(citing Mem'l Props., L.L.C. v. Zurich Am. Ins. Co., 210 N.J. 512,
524 (2012)). We "identify whether there are genuine issues of
material fact and, if not, whether the moving party is entitled
to summary judgment as a matter of law." Bhagat v. Bhagat, 217
N.J. 22, 38 (2014) (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995); R. 4:46-2(c)).
[A] determination whether there exists a
"genuine issue" of material fact that
precludes summary judgment requires the motion
judge to consider whether the competent
evidential materials presented, when viewed in
the light most favorable to the non-moving
party, are sufficient to permit a rational
factfinder to resolve the alleged disputed
issue in favor of the non-moving party.
[Brill, supra, 142 N.J. at 540.]
We then decide "whether the motion judge's application of the law
was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387
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N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104
(2006). In this regard, "[w]e review the law de novo and owe no
deference to the trial court . . . if [it has] wrongly interpreted
a statute." Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
Initially, plaintiff never asserted that she suffered
injuries because of inadequate policing of security at the housing
site. Pursuant to N.J.S.A. 59:5-4, the TCA would indeed immunize
NHA from such a claim. See, e.g., Sczyrek v. County of Essex, 324
N.J. Super. 235, 240-42 (App. Div. 1999) (holding immunity barred
the plaintiff's claim that courthouse security plan was
inadequate).
Rather, we discern plaintiff's argument to be that NHA was
aware that the property presented a dangerous condition for her,
and that NHA's employees acted negligently in addressing that
danger. As to the first part of that claim, the motion judge
properly cited our decisions in Rodriguez v. New Jersey Sports &
Exposition Authority, 193 N.J. Super. 39 (App. Div. 1983), certif.
denied, 96 N.J. 291 (1984), and Setrin v. Glassboro State College,
136 N.J. Super. 329 (App. Div. 1975). In Rodriguez, after the
plaintiff was attacked and robbed in the parking lot of the
Meadowlands Race Track, he sued, alleging inadequate security and
lighting, failure to warn of known dangers and failure to maintain
reasonably safe premises. Rodriguez, supra, 193 N.J. Super. at
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41. In rejecting any argument that the public entity could be
liable for a "dangerous condition" on its property, N.J.S.A. 59:4-
1(a), Judge Michels clearly stated:
There cannot be the slightest doubt that the
mere presence at the Meadowlands complex of
persons with criminal intent or purpose does
not constitute a dangerous condition within
the meaning of the foregoing statutes so as
to impose liability upon the Authority. To the
contrary, liability cannot be visited upon the
Authority under the Tort Claims Act by reason
of the criminal assault and robbery of
Rodriguez.
[Id. at 44 (citing Setrin, supra, 136 N.J.
Super. at 333).]
In this case, NHA was not liable in a general sense for a dangerous
condition on its property.1
The issue really comes down to whether plaintiff established
a prima facie case that NHA's employees, armed with the knowledge
of the April 2010 murder incident and the vandalism of plaintiff's
car three months later, acted negligently in failing to relocate
her to another apartment. See N.J.S.A. 59:2-2(a) ("A public entity
is liable for injury proximately caused by an act or omission of
a public employee within the scope of his employment in the same
manner and to the same extent as a private individual under like
circumstances.").
1
Plaintiff essentially conceded this point at oral argument by
acknowledging she was not asserting a premises liability claim.
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We agree with the motion judge that plaintiff provided nothing
but mere speculation that the assault in her apartment was a
proximate result of NHA's alleged negligence in dealing with
plaintiff's transfer requests. See Robinson v. Vivirito, 217 N.J.
199, 208 (2014) (citations omitted) (emphasis added) ("The
fundamental elements of a negligence claim are a duty of care owed
by the defendant to the plaintiff, a breach of that duty by the
defendant, injury to the plaintiff proximately caused by the
breach, and damages.").
Plaintiff concedes that she has no proof whatsoever that the
2011 attack in her apartment was retribution for her report of her
son having witnessed the April 2010 murder, or that it was in any
way related to the vandalism of her car. The judge concluded the
attack was the result of random violence and, unfortunate as it
may be, all too common an event in some of the public housing
sites in our cities.
Plaintiff criticizes specific actions or omissions of NHA
personnel who dealt directly with her regarding her transfer
requests, and asserts, in blanket fashion, NHA negligently hired,
supervised, trained and retained those employees. The argument
lacks sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). Moreover, accepting such claims arguendo,
plaintiff still failed to establish any proximate causation.
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In light of our holding, we choose not to address whether
plaintiff's claimed injuries vaulted the threshold requirements
of N.J.S.A. 59:9-2(d).
Affirmed.
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