February 1, 2011
JAMES HOGAN AND MARIA HOGAN, HIS WIFE, PLAINTIFFS-APPELLANTS,
DALE WOOLSON, DEFENDANT-RESPONDENT/ THIRD-PARTY PLAINTIFF,
RANDY WILLIAMS AND LINDA WILLIAMS, HUSBAND AND WIFE, THIRD-PARTY DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1239-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2011
Before Judges Carchman and Graves.
Plaintiffs James Hogan and Maria Hogan*fn1 appeal from an order granting summary judgment in favor of defendant Dale Woolson. For the reasons that follow, we affirm.
The underlying facts are not disputed. Plaintiff James Hogan was injured on March 8, 2007, at about 7:00 p.m., when he slipped and fell on ice that had accumulated on the front porch of a single-family home located at 80 Main Street, Cedarville, New Jersey (the property). At the time of the accident, plaintiff was working for Dino's Pizzeria and was making a delivery to third-party defendants Linda and Randy Williams,*fn2 who leased the property from defendant Dale Woolson.
At her deposition, Linda Williams was asked who was responsible for maintaining the property, including the removal of any snow or ice from the front porch, and she answered, "We were." She also testified as follows:
Q. And was it your practice or your husband's practice to ever use salt or sand on the front porch?
A. Yes, yes, it was.
Q. When would you use either one of those substances?
A. Throughout the day if we felt it was needed, whenever there was ice.
Q. What was the surface of the front porch made out of?
A. Just plain wood.
Q. To your knowledge, was there any ice accumulation on the front porch on March 8th, 2007?
A. We had salted in the daytime and then we didn't realize that it had re-frozen.
Randy Williams provided similar deposition testimony:
Q. While you lived in that house, Mr. Williams, who did the snow removal at the house if there was any that was needed?
A. I did.
Q. And did you ever use salt, rock salt or sand at any time?
Q. And when would you have occasion to use either one of those things?
A. Well, whenever there was bad weather.
The lease agreement signed by Linda and Randy Williams as tenants and Dale Woolson as landlord provided that the tenancy began on July 1, 2001. In paragraph seven of the lease the tenants acknowledged they had inspected the property and were satisfied with its condition. They also agreed "to maintain the property" in the same condition as it was at the start of the lease "except for ordinary wear and tear."
According to Woolson, the lease agreement required the tenants to mow the lawn, shovel the snow, and do whatever else had to be done to maintain the property. At his deposition, Woolson testified: "The only thing I took care of was anything that broke or . . . went wrong that way. Otherwise, they lived in it as [if] it was their house, and they maintained it that way, and that was the understanding with every tenant." Woolson also testified that the property was "inspected by the township" every year, and there were never any problems with the inspections.
Plaintiff alleged in his complaint that defendant was negligent for "[f]ailing to exercise reasonable care to protect the plaintiff via inspection and other affirmative acts from the danger of a substantial risk of injury" and "[f]ailing to keep and maintain [the property] in a condition reasonably safe for its intended uses." Following discovery, defendant moved for summary judgment, and the trial court granted defendant's motion.
On appeal, plaintiff presents the following arguments:
POINT I THE TRIAL COURT ERRED IN FINDING AS A MATTER OF LAW THAT THE LANDLORD OWED NO DUTY TO PLAINTIFF WHEN THE RECORD SHOWS THAT THE LANDLORD RETAINED SOME CONTROL OVER THE PREMISES.
POINT II THE SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED SINCE THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANT'S FAILURE TO INSPECT OR MAINTAIN THE PROPERTY BREACHED HIS DUTY OF CARE.
We are satisfied from our review of the record that summary judgment was properly granted and that plaintiff's arguments are clearly without merit. R. 2:11-3(e)(1)(E). We add only the following comments.
When reviewing a summary judgment order, we apply the same standard that governed the trial court. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2(c). We must first determine "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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Id. at 537.
In this case, there is no dispute that the entire single-family dwelling was leased to the Williamses and that they were responsible for the routine maintenance of the property, including the removal of snow and ice. Further, there was no evidence that defendant failed to advise the tenants of a potentially dangerous condition of the property or that he concealed a latent defect. Under these circumstances, we agree defendant was entitled to summary judgment. See Patton v. Texas Co., 13 N.J. Super. 42, 47 (App. Div.) (limiting the liability of a landlord of a leased residential home to only those circumstances in which a plaintiff is injured by a latent defect of the property that was fraudulently concealed), certif. denied, 7 N.J. 348 (1951); see also Szeles v. Vena, 321 N.J. Super. 601, 607 (App. Div.) (finding no basis to impose tort liability on landlord where condition of exterior staircase of single-family residence was not concealed and "not a condition that had been brought to the attention of the landlord or for which the landlord should be charged with notice"), certif. denied, 162 N.J. 129 (1999).