On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Francis. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J. Heher, J., concurring in result.
[26 NJ Page 381] Defendant owns a garden apartment containing about 1,750 dwelling units. It leased an apartment
to plaintiffs, Mr. and Mrs. Michaels. Among the fixtures therein were steel kitchen cabinets. Plaintiffs asserted that defendant's maintenance men, notified that the upper hinge of a cabinet door was loose, promised to repair it but did not. The hinge gave way and the door struck Mrs. Michaels. She and her husband prevailed upon a jury verdict.
The case was tried upon the theory that the lease obligated defendant to repair. Concluding that the agreement was ambiguous, the trial court left its meaning to the jury. The Appellate Division believed the lease to be clear and devoid of the asserted obligation upon the landlord, and hence reversed. We granted plaintiffs' petition for certification, 25 N.J. 329 (1957).
Historically a lease was viewed as a sale of an interest in land. The concept of caveat emptor, applicable to such sales, seemed logically pertinent to leases of land. There was neither an implied covenant of fitness for the intended use nor responsibility in the landlord to maintain the leased premises. Bauer v. 141-149 Cedar Lane Holding Co., 24 N.J. 139, 145 (1957); Bolitho v. Mintz, 106 N.J.L. 449 (E. & A. 1930). This principle, suitable for the agrarian setting in which it was conceived, lagged behind changes in dwelling habits and economic realities. 1 America Law of Property (1952), § 3.78, p. 347. Exceptions to the broad immunity inevitably developed.
Thus, for example, it is now settled that the landlord owes a duty of reasonable care with respect to the portions of a building which are not demised and remain in the landlord's control. Dubonowski v. Howard Savings Institution, 124 N.J.L. 368 (E. & A. 1940); Perry v. Levy, 87 N.J.L. 670 (E. & A. 1915).
Another exception is predicated upon a landlord's covenant to repair, and this is the one upon which the present case turned. Some jurisdictions deny recovery for consequential
damages for a breach of an obligation to repair, seeing no basis for an action in tort and confining recovery in contract to the cost of repairs. Others, however, hold the landlord liable to the tenant and to all persons on the demised premises with the tenant's consent, on the ground that a covenant to repair, when made by a landlord, gives rise to a duty to exercise due care and hence responsibility for a negligent failure to perform. This view, initially a minority one, was adopted in the Restatement of Torts (1934), § 357, and has attracted so much support that it is said the states are now about equally divided on the proposition, annotation, 163 A.L.R. 300 (1946), although other authorities still describe it as a minority doctrine. Prosser, Torts (2 d ed. 1955), § 80, p. 474; 1 American Law of Property (1952), § 3.79, p. 352.
Thus far it is debatable whether our cases square with either view. The landlord's liability for failure to perform a covenant to repair is agreed to be grounded in tort, i.e., negligence, Granato v. Howard Savings Institution, 120 N.J.L. 94 (Sup. Ct. 1938), but controversy persists with respect to whether any one other than the tenant may sue. The Court of Errors and Appeals divided equally on that issue in Colligan v. 680 Newark Ave. Realty Corp., 131 N.J.L. 520 (E. & A. 1944). It should be noted that the line of cleavage in Colligan is not the one which divides the other jurisdictions. They differ as to whether the liability is contractual or tortious, and from their respective conclusions on that question, move to different results. Those which adhere to the contract approach deny liability for negligent injury whether the plaintiff be the tenant or another, whereas those who find a tortious duty do not confine liability for consequential damages to the parties to the lease. See A.L.R., annotation, supra (163 A.L.R., at 313). Thus the suggested demarcation separating the tenant from others on the premises with his consent is peculiarly our own.
This court heretofore adverted to the problem presented in Colligan but left it unresolved since the issue was not
imperatively presented. Daniels v. Brunton, 7 N.J. 102 (1951); White v. Ellison Realty Corp., 5 N.J. 228 (1950). Inasmuch as plaintiffs here are the tenants, we do not have that issue before us, but at least a portion of the philosophy debated in Colligan does enter into the present case and hence calls for consideration of its validity.
The jurisdictions which deny recovery insist upon an element of reserved control in the landlord as a basis for liability in tort and find that a covenant to repair does not supply that element. Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397 (Ct. App. 1931); De Clara v. Barber Steamship Lines, Inc. 309 N.Y. 620, 132 N.E. 2 d 871 (Ct. App. 1956); 1 Tiffany, Real Property (1939), § 106, p. 161; 4 Shearman and Redfield, Negligence (1941), § 786, p. 1805; Comment, 48 Mich. L. Rev. 689 (1950). It is the control feature which figured largely in the opinions of the judges in Colligan. Their divergent views were revealed in their treatment of Monohan v. Baime, 125 N.J.L. 280 (E. & A. 1940), wherein an employee of a tenant recovered for personal injuries caused by the fall of a radiator located within the demised premises. The judges in Colligan who would confine liability to the tenant alone construed Monohan to turn upon the fact that the radiator was part of the central heating plant and thus to represent merely an extended application of the principle of retained control, rather than to rest upon a duty arising out of a covenant to repair. The other judges, however, deemed Monohan to mean simply that the landlord's covenant to repair itself gave rise to a tort duty.
In the present case, much argument was pressed with respect to whether the covenants of the lease gave defendant reserved control over the kitchen cabinet. The cabinet, unlike the radiator in Monohan, cannot be identified with a central system, and hence there is posed the question whether the concept of reserved control is an essential factor where there is a covenant to repair. We think it is not.
The element of control is useful to identify what is leased and what remains in the possession of the landlord, in order to ascertain whether, wholly ...