August 10, 2011
JUAN GUTIERREZ, PLAINTIFF-APPELLANT,
JEAN M. HUNTINGTON AND CLIFFORD HUNTINGTON, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
JORGE CABRERADUARTE A/K/A JORGE CABRERA, THIRD-PARTY DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5068-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 5, 2011
Before Judges Cuff and Fuentes.
Plaintiff Juan Gutierrez appeals from the order of the Law Division granting defendants Jean M. and Clifford Huntington's summary judgment motion and dismissing his personal injury cause of action. We reverse and remand.
Plaintiff was injured when he slipped on ice and fell onto the concrete patio abutting a single family house rented by third-party defendant Jorge Cabrera. At the time of the accident plaintiff was temporarily residing with Cabrera as his guest. Plaintiff sued the Huntingtons, alleging that the accident was caused by snow-covered ice that formed from water that pooled around a clogged drain in a depressed section of the patio. This drainage problem was exacerbated by the absence of roof gutters, which permitted precipitation from the roof to fall directly onto the patio. Plaintiff submitted a report from an engineer who opined the conditions of the patio violated a municipal ordinance that requires all premises to be graded to prevent the accumulation of stagnant water.
Relying on Patton v. The Texas Co., 13 N.J. Super. 42 (App. Div.), certif. denied, 7 N.J. 348 (1951), defendants moved for summary judgment arguing that, as a residential landlord, they are not liable for injuries sustained by a tenant or a tenant's guest "unless there has been fraudulent concealment of a latent defect." Id. at 47. In response, plaintiff urged the court to rely on the standard established in Section 358 of the Restatement (Second) of Torts (1965), which states:
(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.
(2) If the lessor actively conceals the condition, the liability stated in Subsection (1) continues until the lessee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.
Plaintiff relied on Reyes v. Egner, 404 N.J. Super. 433, 448-55 (App. Div. 2009), aff'd by equally divided court on other grounds, 201 N.J. 417 (2010), in which this court used Section 358 to determine the duty owed by a landlord to short-term tenants of a vacation home and their guests. The dangerous condition in Reyes involved an elevated deck and stairs which, given the plaintiff's unfamiliarity with the residence's layout, caused the plaintiff to fall and injure himself. Id. at 440-41.
The question before this court was whether the lessor and the lessee had "reason to know" of a condition that "involves unreasonable risk of physical harm." Id. at 461-62. Focusing on the short duration of the rental, we declined to follow Patton and held the defendant potentially liable. Ibid. Writing for the panel, Judge Sabatino concluded that, in such circumstances, the landowner's duties "should be defined consistent with the precepts of Section 358" of the Restatement. Ibid.
The short duration of the tenancy, however, was not the only factor we considered in Reyes. Because the dangerous condition created by the elevated deck was also a violation of the construction codes, this factor could be considered by a jury as "evidential if not conclusive" evidence of the landlord's breach of the duty owed to the tenants. Id. at 458.
Here, the record shows the motion judge was sympathetic to plaintiff's argument but considered himself bound by our decision in Patton, which he viewed as a viable precedent even after Reyes. The judge noted:
I would not at all be surprised if in the next case an Appellate Court were to adopt the full rule of the Restatement (Second) Section 358. But they had not up to this point and the rule is enunciated and  Patton and Szeles*fn1 does remain the rule in this state. They're from . . . the Appellate Division and this Court is bound to follow it.
The court heard and decided defendants' summary judgment motion on September 16, 2010. Approximately eight months thereafter, we decided Meier v. D'Ambose, 419 N.J. Super. 439 (App. Div. 2011), in which we considered "whether the owner-landlord of a single-family residence had a duty to the tenant to maintain, and thus periodically inspect, the furnace to prevent a hazardous condition." Id. at 441.
In Meier, decedent's estate and heir sued the landlord for negligence and wrongful death, alleging the tenant died from smoke inhalation from a fire that may have been caused by a defective gas-fired heater located in the crawl space of the single-family dwelling. Id. at 442. The trial court in Meier characterized the "deteriorated flue pipe" in the furnace that caused the fire as a "latent defect" because the defendant had no prior notice of its malfunction. Id. at 445.
Relying on Patton and Szeles, the trial court in Meier granted the landlord's motion for summary judgment, holding "as a matter of law that [the] defendant did not have a duty to make periodic inspections of the furnace to discover any such defects because [the tenant] was in sole possession of the premises." Id. at 445-46. We reversed and remanded the matter for trial. Id. at 446.
We began our premises liability analysis in Meier by reaffirming the fact-specific, public policy principles articulated by our Supreme Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993):
To determine whether the owner of property had a duty in particular circumstances to the injured person, a court must examine such factors as "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." [Meier, supra, 419 N.J. Super. at 445, quoting Hopkins, supra, 132 N.J. at 439.]
From this point, we reviewed the evolutionary trend in premises liability law defining a landowner's duty consistent with the precepts of Section 358 of the Restatement (Second) of Torts (1965). Meier, supra, 419 N.J. Super. at 446-47, citing Reyes, supra, 404 N.J. Super. at 448-55.*fn2
With these principles as our guide, we now return to the question presented in this appeal. At the time of this accident, plaintiff had been living as the "guest" of third-party defendant Cabrera for approximately two months. Cabrera allowed plaintiff to share his home rent-free while plaintiff searched for his own place to live.
Cabrera was defendants' tenant under a written lease that began on July 27, 2004, and continued on a month-to-month basis. The lease contained certain "terms and conditions." Of relevance here, paragraph 5 required Cabrera to "keep and maintain the premises in a clean and sanitary condition;" paragraph 10 "reserves" defendants the right to enter the premises "for the purpose of inspection, and whenever necessary to make repairs and alterations." At his deposition, Cabrera testified that he had a verbal agreement with defendants through which he was responsible for removing the snow and ice from the property.
Here, plaintiff argues defendants have a duty to plaintiff to maintain the premises they rented to Cabrera, including the concrete patio abutting the house, free from dangerous conditions. Plaintiff further argues that defendants' duty in this respect is independent of and notwithstanding any verbal agreement they may have had with Cabrera.
The alleged dangerous condition here is twofold. The first is the defective drain, which permits water to pool and freeze when the temperatures fall below the freezing point. The second is the lack of gutters on the roof of the dwelling, which exacerbates the drainage problem because it allows water to cast down in the same area. In the opinion of plaintiff's liability expert, both of these alleged defects are violations of local municipal laws that set certain minimum standards of maintenance for this kind of dwelling.
In our view, these are not latent defects. Both of these defects are structural matters that are within the exclusive control of the landlord. The structural defects remain the responsibility of the landlord to remediate when they create a dangerous condition on the property. These structural defects do not fall within day-to-day maintenance of the property properly assumed by the tenant. Although the record suggests that the clogged drain and absence of gutters was a long- standing problem, the record does not permit the motion judge to find that the landlord had notice of the defects at or before the time of the accident.
We are satisfied that the principles articulated in Hopkins, Reyes, and Meier constitute the appropriate standard to determine defendants' duty to plaintiff under these circumstances. As we held in Meier:
The lessor . . . has a non-delegable duty of care to third parties to avoid a hazardous condition of his property. Whatever may be the terms of a lease and the duties of lessor and lessee as to each other, the lessor cannot by virtue of the lease release himself from potential liability to third parties. In addition, the lessor benefits in the long-term from maintaining the property. He collects rent to fund maintenance of the property, and he should have the incentive and means to arrange inspections to prevent hazardous conditions. [Meier, supra, 419 N.J. Super. at 450 (internal citation omitted).]
Our standard of review from a trial court's order granting a defendant summary judgment is plenary. We must independently determine, without deference to the trial court's ruling, whether disputed issues of fact exist for determination by a jury. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must "consider 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); R. 4:46-2(c).
Plaintiff's expert's report contains sufficient evidence to create a jury question as to whether defendants should be held liable for plaintiff's injuries. By means of any reasonable inspection, defendant should have discovered how the defective drain, coupled with the absence of roof gutters, were causing water to pool in the patio. Under Meier, defendants have a duty to inspect this property to ensure it is free of these dangerous conditions. If a jury were to find defendants negligently failed to inspect and thereafter correct this dangerous condition on the property, it could then determine whether such negligence was a proximate cause of plaintiff's injuries and if so, to what extent plaintiff's own conduct, as compared with defendants' negligence, caused him to fall.
Reversed and remanded. We do not retain jurisdiction.