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SAMUEL FELD AND PEGGY FELD v. JOHN W. MERRIAM AND THOMAS WYNNE (05/13/83)

filed: May 13, 1983.

SAMUEL FELD AND PEGGY FELD
v.
JOHN W. MERRIAM AND THOMAS WYNNE, INC., CO-VENTURERS, T/A CEDARBROOK JOINT VENTURE AND GLOBE SECURITY SYSTEMS, INC. APPEAL OF JOHN W. MERRIAM AND THOMAS WYNNE, INC., CO-VENTURERS T/A CEDARBROOK JOINT VENTURE



No. 2090 Philadelphia, 1980, No. 2303 Philadelphia 1980, APPEAL FROM THE ORDER OF 8/1/80 & 9/2/80 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, LAW NO. 2619 FEBRUARY TERM, 1976

COUNSEL

Marvin Comisky and William H. Roberts, Philadelphia, for appellants.

Marshall A. Bernstein, Philadelphia, for Feld, appellees.

Joseph R. Livesey, Philadelphia, for Globe, appellee.

Hester, Cirillo and Johnson, JJ.

Author: Cirillo

[ 314 Pa. Super. Page 422]

Appellees, Samuel and Peggy Feld, brought suit against appellant, Cedarbrook Joint Venture (Cedarbrook) to recover for injuries which resulted from a criminal incident that originated in the garage of building number one of the Cedarbrook apartment complex on June 27, 1975. The Felds alleged that Cedarbrook had a duty to provide adequate security for its tenants and that the breach of this duty on the part of Cedarbrook was the proximate cause of their injuries. Following an eight day jury trial, a verdict was rendered in favor of the Felds. Peggy Feld was awarded two million dollars ($2,000,000) in compensatory damages and Samuel Feld was awarded one million dollars ($1,000,000) in compensatory damages. Each of the Felds was also awarded one million, five hundred thousand dollars ($1,500,000) in punitive damages. In addition, damages for delay in the amount of eighty three thousand eight hundred and thirty five dollars and twenty four cents ($83,835.24) were awarded pursuant to Pa.R.C.P. 238. Cedarbrook's post-trial motions for judgment n.o.v., a new trial and remittitur were denied and this appeal followed.

In evaluating the trial court's decision to deny a motion for judgment n.o.v., it is fundamental that the evidence must be viewed in the light most favorable to the verdict winners. All conflicts must be resolved in their favor and they must be given the benefit of every reasonable inference arising from the evidence. Carswell v. S.E.P.T.A. 259 Pa. Super. 167, 393 A.2d 770 (1978); Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 359 A.2d 440 (1976).

Cedarbrook apartments is a complex of approximately one thousand units located on a 36 acre tract of land in Cheltenham, Pennsylvania.*fn1 The grounds can be entered by vehicle through two entrances, each of which was

[ 314 Pa. Super. Page 423]

    manned by security guards for 16 hours a day in June, 1975.*fn2 At that time, Samuel and Peggy Feld were tenants in building number one of the Cedarbrook complex. They rented a parking space for their automobile in a garage located beneath that building. This facility had space for 160 cars. Access to the garage could be gained through two entrances, neither of which was equipped with doors. Additionally, the lighting in the garage was poor.

Cedarbrook provided security services for the entire apartment complex pursuant to a contract with Globe Security Services.*fn3 These services consisted of stationing non-security trained doormen at the entrances to the buildings, and at the two main entrances to the complex. In addition, Globe provided one walking guard who patrolled the entire complex on foot and an additional guard who patrolled the complex in a car at irregular intervals. No regular guard services were provided for the garages.

During the years 1970 to 1975, the crime rate in the Cheltenham area had risen. Additionally, in the three month period preceeding the criminal attack on the Felds, twenty one separate incidents of criminal activity on the Cedarbrook complex were reported to Globe. These incidents included, a robbery, several apartment burglaries, car thefts, and an assault on a tenant in a hallway in one of the buildings.

The Cedarbrook Tenant's Association, as well as individual tenants, complained to the Cedarbrook management about these incidents and requested that additional security be provided. The Tenants Association, Globe, and its predecessor, Diamond Security Services, made specific recommendations to Cedarbrook regarding security measures

[ 314 Pa. Super. Page 424]

    that should be taken.*fn4 These recommendations included: better lighting in the garages and the installation of mechanized doors on the garages which could be opened by use of a key or special card. It would have cost Cedarbrook $20,000 to install these doors. In addition, it was recommended that more guards be provided to patrol the complex, and that these guards be provided with more security training.*fn5 It was also suggested that the tenants be provided with decals for their cars so that the guards could better screen the cars entering and leaving the complex. Cedarbrook refused to implement any of these measures. It declined to implement the latter because it was concerned that access by the general public to the professional offices, located on the lower floors of the apartment buildings, would be hampered if unmarked cars were screened at the entrances to the complex.

On June 27, 1975, at approximately 9:00 p.m., Samuel and Peggy Feld drove into the Cedarbrook complex through the Limekiln Pike entrance, and parked their car in garage number one. After getting out of the car and locking it, they walked towards the pedestrian exit. Suddenly, three armed men emerged from behind a parked car, accosted them and robbed them at gunpoint. The men then ordered the Felds back into their car, and two of them drove the Felds off the Cedarbrook grounds through the Limekiln Pike exit.*fn6 The third man followed them in another car.

When the assailants threatened to lock Samuel Feld in the trunk of his car, Peggy Feld, concerned that he would be unable to breath because of his emphysema, told the men that she would do anything they wished if they agreed not

[ 314 Pa. Super. Page 425]

    to harm her husband. They assented and, after being raped at gunpoint by one of the men, she succeeded in convincing them to release her husband. Mrs. Feld was raped and sodomized by the men three or four more times before she was finally released.*fn7

The Felds testified that they were very upset following the criminal episode and were convinced, during its duration, that they were going to be killed. Mrs. Feld began psychotherapy to help alleviate the severe emotional distress she experienced following the incident. One of Mrs. Feld's psychiatrists testified that after the attack, she had undergone a complete reorganization in personality with major repression. He stated that she would never fully recover from the emotional trauma that she experienced as a result of the events that occurred on the night of June 27, 1975.

Mrs. Feld and members of her family testified that after the criminal incident, she became extremely argumentative, a heavy drinker, and that she developed an inordinate fear of young black men who reminded her of her attackers. She no longer partakes in the many social and community service activities that she once enjoyed, because she is fearful of leaving her home. She is also unable to enjoy the company of her children or her young grandchildren.

Mr. Feld testified that his marriage to Mrs. Feld had been destroyed and that they remained together out of compassion, but not love. He characterized their relationship as one of "brother and sister" rather than husband and wife.

Mr. Feld stated that he was no longer able to sleep at night and that he was constantly in a fearful, nervous and agitated state. He had not received counseling to help him deal with his emotional problems because, at the time of the trial, he was still unable to discuss the details of the criminal episode with anyone, including Mrs. Feld. His family members corroborated his testimony on these points

[ 314 Pa. Super. Page 426]

    and described him as a very unhappy man who constantly "barked" at others.

Cedarbrook's first contention is that insufficient evidence was presented, with respect to its negligence in designing and operating the security system at the apartment complex, to warrant the submission of this issue to the jury. The questions of whether a landlord owes his tenant a duty to provide security and, if so, what the extent of that duty is, are questions of first impression in this Commonwealth. In other jurisdictions, it has been recognized that a landlord is under a duty to exercise reasonable care to protect his tenants from the forseeable criminal actions of third persons. See, Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477 (D.C.Cir.1970); O'Hara v. Western Seven Trees Corp., 75 Cal.App.3d 798, 142 Cal.Rptr. 487 (1977); Holley v. Mt. Zion Terrace Apts., Inc., 382 So.2d 98 (Fla.App.1980); Johnson v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972); Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980).

The primary reason for imposing this duty on the landlord is the recent recognition by the courts that, in modern times, a residential lease should not be viewed as a conveyance of land, but rather, as a contract between landlord and tenant, imposing certain rights and duties upon each of them. See, 43 A.L.R.3d 331 (1972).

In Pugh v. Holmes, 486 Pa. 272, 282, 405 A.2d 897, 902 (1979) (emphasis added), our Supreme Court adopted this characterization of ...


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