On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-870-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued November 7, 2012
Before Judges Parrillo and Maven.
Plaintiff Justine Garber, administratrix of the estate of decedent Leonard Long, appeals from the summary judgment dismissal of decedent's personal injury negligence cause of action against defendant Haddon Hills Associates, L.L.C., t/a Haddon Hills Apartments. For reasons that follow, we reverse.
The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Decedent was injured when he fell due to a deflection or depression in the floor of his apartment that developed at the foot of the staircase. At the time of the accident, decedent, along with his two sons, had been residing in the premises at defendant's Haddon Hills Apartment complex for about ten months, since June 1, 2007, following execution of a lease agreement with defendant on May 15, 2007. The lease included a provision titled, "LANDLORD'S WARRANTY OF HABITABILITY & NON-LIABILITY IN CERTAIN INSTANCES", which read:
Landlord warrants the habitability of the premises. However, Landlord shall be exempt from any and all liability for any damage or injury to person or property caused by or due to the negligence of the Landlord. Tenant shall give to the Landlord prompt written notice of any accident to, or defects in, the premises, which defects shall be remedied by the Landlord with due diligence.
Another provision, titled "TENANT'S RIGHT TO QUIET ENJOYMENT/LANDLORD'S RIGHT TO ENTER APARTMENT," recited:
Landlord covenants and agrees with the Tenant that upon Tenant paying the rent and performing all of Tenant's covenants and conditions in the lease, Tenant shall peaceably and quietly have, hold and enjoy the premises for the term of the lease. However, Landlord shall have the right to enter the premises at all reasonable times for purposes of making ordinary or emergency repairs and maintenance and for purpose of showing the premises to prospective new Tenants during the last month of the lease.
When he moved into the apartment, decedent noticed a "slant" in the indoor flooring at the bottom of the stairs. He reported the condition to a maintenance worker employed by the apartment complex, who later informed decedent that he had reported the slant to management. Decedent also notified several people working in the front office of the condition, although he never filed a formal, written complaint. According to decedent, one of his sons also voiced concerns about the slant in the floor. Despite these complaints, defendant made no repairs or alterations to the floor.
Sometime after the accident on March 9, 2008, decedent retained registered architect and professional engineer John Hare to inspect the apartment. From the vantage point of the interior living room only, Hare discovered that the depression at the foot of the stairs was "sloping 1-3/4 inches in approximately three feet[,]" adding that any slope should not exceed 1/4 inch in any two-foot span. In his professional opinion, the slope of the floor was excessive - "more than 1/2 inch per foot[.]"
From the limited inspection and from information provided by decedent's son about the building being just recently treated for termites, Hare opined that "the floor at the stair has suffered structural damage from termites and could be structurally unsound and in danger of collapse." However, to confirm that finding, Hare had to inspect the floor supporting the stair to determine the cause of the excessive deflection in that area.
To that end, on February 19, 2010, Hare inspected the structural floor joists framing under the living room of decedent's first floor apartment and as originally opined, he found the wood joists and header at the exterior entrance stair to the unit to be suffering from severe termite and rot damage. In fact, the damage had been so severe that the "maintenance staff ha[d] installed temporary [4" by 4"] shoring to support the joists, although no repair attempt ha[d] [ever] been undertaken." The temporary shoring posts in the crawl space had been in place for ten years, and one of them had actually collapsed due to termite damage, while another sagged.
According to Hare, "[t]he collapsed shoring in the crawl space readily explains the reason for the rapid development of the excessive slope of the floor. . . ." Thus, whenever someone stepped on that section of the floor, the floor deflected further under the weight of the individual. Hare described the condition: "[t]he problem was that this was a trap. Although [decedent] was aware of a slope . . . he was not aware that the floor was supported on shoring and that it had been severely damaged by termites. He was not aware that one of the shoring posts had collapsed." Hare concluded that these ...