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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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" ...