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Moore v. Rowe

October 16, 2009

KALEEL MOORE, BY HIS MOTHER AND GUARDIAN AD LITEM, ANNETTE WILLIAMS, PLAINTIFF-APPELLANT,
v.
ELSIE ROWE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0979-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2009

Before Judges Rodríguez and Chambers.

Annette Williams, as mother and guardian ad litem for her minor child, brought this personal injury action seeking damages for lead paint poisoning her child sustained while residing in an apartment owned by defendant Elsie Rowe. Defendant was unaware that Williams and her minor child were living in the apartment, and the lease expressly prohibited children from living there. After the close of evidence, the trial court directed a verdict in favor of defendant, dismissing the complaint, determining that the child had no status under the law that gave rise to a cause of action against defendant. We reverse, concluding that the defendant had a duty of care toward her tenants and others invited by the tenant into the apartment, including the child.

I.

From the record, we discern the following facts. After the birth of her child in March 2003, Williams went to live with the child's father, Kevin Moore, in the apartment of the child's paternal grandmother, Alice Moore. Alice Moore had rented the apartment for a number of years. Under the terms of the lease, she and Kevin Moore were the only people permitted to live in the apartment, and children were expressly prohibited from living there. After living in the apartment for eighteen months, Williams discovered that her child had sustained lead poisoning. Thereafter, the Department of Health determined that the apartment contained lead paint, and defendant obtained a grant and had the lead hazard remediated. Williams testified that the paint in the apartment was chipped. Williams presented the videotaped testimony of a medical expert who testified that the child had sustained lead poisoning caused by the lead-based paint in the apartment.

Alice Moore testified that she understood that the lease permitted only her son to reside with her in the apartment. She never advised defendant that Williams and her child were living in the apartment with her. Further, before the child's diagnosis of lead poisoning, she had no reason to believe that the apartment contained lead, and she had never complained to defendant about the presence of chipped paint in the apartment.

Defendant's deposition testimony was read into the record. Defendant did not live on the premises but would go to the apartment to collect rent from Alice Moore once a month. While on occasion she saw Alice Moore baby-sitting an older grandchild, she never saw Williams's child in the apartment. She was unaware that the apartment had lead paint and that Williams and her child were living in the apartment until she was advised of the lead paint hazard. Defendant last had the apartment painted in 1998 or 1999, and she testified that she never observed peeling paint there.

Williams did not contradict the testimony of Alice Moore and defendant that defendant was unaware that Williams and her child were living in the apartment, until the lead paint hazard was discovered. She testified that she had seen defendant collect rent from Alice Moore, and that on one occasion, when Alice Moore was out, she had handed the rent check to defendant. However, Williams testified that handing over the rent check was the only interaction she had with defendant and that her child had no interactions with defendant.

The case was tried to a jury, and at the close of evidence, the trial court granted defendant's motion for a judgment under Rule 4:40-1, dismissing the case.*fn1 The trial court concluded that the child was not a tenant under the lease, that he was not an invitee or trespasser on the premises, that he had no legal status on the property, and that, accordingly, defendant had no duty to the child. Plaintiff has appealed, contending that the facts support a cause of action against defendant.

II.

When deciding a motion for judgment under Rule 4:40-1, "the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced therefrom. Thus, if reasonable minds could differ, the motion must be denied." Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-1 (2010). In this case, accepting all of Williams's evidence as true and giving Williams the benefit of all the legitimate inferences that can be drawn from the evidence, the trial court had to determine whether defendant had a legal duty to the child. Since this determination turns on a question of law, we owe the trial court's decision on this issue no deference. See Edwards v. McBreen, 369 N.J. Super. 415, 421-22 (App. Div. 2004) (stating that we owe a trial court no deference on the question of whether a duty exists in a negligence case).

A landlord in a multiple dwelling has the responsibility of maintaining the premises in good repair. Dwyer v. Skyline Apts. Inc., 123 N.J. Super. 48, 51 (App. Div.), aff'd o.b., 63 N.J. 577 (1973). However, the landlord's liability for injuries caused by conditions on the property is governed by negligence principles. Id. at 52. For a landlord to be held liable for a dangerous condition on the demised premises, he must have known or should have known of the condition prior to the occurrence and had ...


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