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September 23, 1994


The opinion of the court was delivered by: J. CURTIS JOYNER


 Defendants seek Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50, or a New Trial pursuant to Federal Rule of Civil Procedure 59. For the reasons that follow, these requests are denied.

 Plaintiff Heather Johnson sued David Goldstein and Irving Goldstein as well as the companies they own, Wayne Manor Apartments and Lincoln Management Company, for physical and emotional damages suffered when she was raped in an apartment she rented from the Defendants. The rapist entered Plaintiff's apartment through a window that did not have security bars on it. Plaintiff's claim against Defendants was based on a theory that Defendants were negligent in providing a program of security.

 Before trial, Defendants moved twice for summary judgment and each time this Court found genuine issues of material fact. This June, the case was tried to a jury and Plaintiff presented evidence and numerous witnesses. Defendants cross-examined Plaintiff's witnesses, yet declined to present any evidence of their own to rebut Plaintiff's evidence. The jury returned a verdict for the Plaintiff, and awarded her damages.

 Defendants now assert that the jury's findings were against the weight of the evidence, that this Court improperly instructed the jury on many points and made other incorrect rulings on legal issues. Each of Defendants' nine claims will be addressed in turn.


 Courts are permitted to enter a judgment as a matter of law if "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. R. Civ. P. 50(a)(1). Courts are permitted to grant a new trial if they find that a jury's verdict was against the weight of the evidence. Fed. R. Civ. P. 59(a); Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1348 (3d Cir. 1991); Northeast Women's Center, Inc. v. McMonagle, 689 F. Supp. 465, 468 (E.D. Pa. 1988).

 Either action, however, is not to be taken lightly. A court should only grant a new trial or issue a new judgment if "manifest injustice" would result otherwise, and the decision to act is left to the "discretion of the district court." Id. ; Bonjorno v. Kaiser Aluminum & Chem. Corp., 752 F.2d 802, 814 (3d Cir. 1984), cert. denied, 477 U.S. 908, 91 L. Ed. 2d 572, 106 S. Ct. 3284 (1986). A judgment as a matter of law should be granted only when the court finds "as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict." Northeast Women's Center, 689 F. Supp. at 468.



 Defendants assert that there was fraud during the course of the trial in that Plaintiff offered Defendants' Answer to its Complaint into evidence during Plaintiff's case. Defendants argue that Irving Goldstein is not an owner of the Wayne Manor Apartments and so is not a proper defendant in this action. However, in Defendants' First Answer to Plaintiff's Complaint, Defendant Irving Goldstein admitted ownership of the apartments. Later, in their Second Answer, Irving Goldstein denied ownership and asserted instead that he had sold his interest in the property to his son, David Goldstein. Defendants assert that when Plaintiff offered the First Answer into evidence to prove Irving Goldstein's ownership of the property, she committed fraud on the court, leading to fraud in the verdict.

 The test for fraud is: 1) a misrepresentation of fact 2) fraudulently uttered 3) with intent to induce reliance 4) and inducing justifiable reliance 5) to the injury of the injured party. Averbach v. Rival Mfg. Co., 809 F.2d 1016, 1019 (3d Cir.); cert. denied, 482 U.S. 915, 96 L. Ed. 2d 675, 107 S. Ct. 3187 (1987). A party may offer so-called "abandoned pleadings" into evidence, so long as the other side has an adequate opportunity to explain the pleading. Haynes v. Manning, 717 F. Supp. 730, 733 (D. Kan. 1989). When an abandoned pleading is offered, it is admissible as an admission of a party-opponent under Federal Rule of Evidence 801(d). Id.

 Here, Plaintiff offered Defendants' First Answer into evidence. This answer was admissible as an admission of Defendants and as an abandoned pleading. Defendants had the opportunity to explain the pleading in their own case and to offer the Second Answer in their own case. Defendants, however, declined to explain or rebut their own Answer. Defendants assert that their own pleading was "admittedly false" and that Plaintiff presented it with the intent, and result, of misleading the jury.

 We cannot hold that when Plaintiff offered evidence created by the Defendants themselves to resolve a disputed issue of fact, that Plaintiff acted fraudulently. We find that the Defendants had every opportunity to rebut Plaintiff's evidence, and that the jury was not misled by their failure to do so. In addition, we cannot find that Irving Goldstein was injured by Plaintiff when he did not act to protect himself at trial. Accordingly, Defendants' first argument is denied.


 Defendants argue that there was no agreement between them and Plaintiff with respect to security. Although Defendants do not go beyond stating this simple assertion, presumably Defendants intend to argue that any jury finding that there was an agreement was against the weight of the evidence. To support this argument, Defendants cite the lease, which states that it is an "as is" lease, containing no representations beyond those specifically mentioned. They cite, further, a Pennsylvania case holding that a landlord, in general, has no general duty of care to protect tenants from criminal intrusion. Feld v. Merriam, 506 Pa. 383, 393-94, 485 A.2d 742, 747 (1984). That case goes on to hold that a landlord does ...

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