BARBARA JANE TUCKER v. WALTER ROSENSTOCK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1109-07T21109-07T2

BARBARA JANE TUCKER and

PAUL TUCKER, Husband and Wife,

Plaintiffs-Appellants,

v.

WALTER ROSENSTOCK and SUSIE

ROSENSTOCK, i/j/s/a,

Defendants-Respondents.

______________________________

 

Argued September 8, 2008 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-14-05.

Anthony Granato argued the cause for appellants (Jarve Kaplan Granato, LLC, attorneys; Mr. Granato and Michael Kaplan, on the brief).

Matthew B. Wieliczko argued the cause for respondents (Zeller & Wieliczko, attorneys; Mr. Wieliczko and Dean R. Wittman, on the brief).

PER CURIAM

Plaintiffs Barbara Jane Tucker and Paul Tucker appeal from an award of summary judgment dismissing their complaint against their landlord, defendant Walter Rosenstock, for personal injuries Barbara sustained as a result of a fall in the leased premises. For the reasons that follow, we affirm.

The tenancy commenced on August 1, 2002. The lease agreement between the parties recited that plaintiffs had inspected the property and were satisfied with its condition. It also provided that should repairs be necessary, plaintiffs were to promptly notify defendant and were not to undertake them without defendant's express written consent.

On January 14, 2003, Barbara tripped and fell down an interior half-flight of stairs when her sock caught on the head of a nail used to secure a threshold to the flooring. Plaintiffs contend that had the handrail alongside the steps been properly configured, and had it been extended to the proper length, Barbara would have been able to catch herself.

Prior to Barbara's fall, the nail worked itself loose on at least two other occasions, and Paul simply hammered it down. Because they considered the problem minimal, plaintiffs never informed defendant, although other repairs were made at their request, such as to the hot water heater.

Plaintiffs retained an expert who opined that screws, rather than nails, should have been used to affix the threshold. He also concluded that there should not have been a threshold at all in the interior doorway at the top of the stairway and that the height and extension of the handrail alongside the stairs created a hazard and violated relevant building codes. The structure, originally a single family dwelling, was converted into two apartments some time between 1988 and 1990, under the supervision of defendant's now deceased son.

Plaintiffs contended in opposition to the motion for summary judgment that defendant should be held to the standard of care due a business invitee. The motion judge found, to the contrary, that although the landlord had a duty to provide habitable premises to his tenants, the applicable duty within the context of a tenancy requires notice to the landlord of latent defects. The judge therefore concluded, as a matter of law, that there was no breach of the duty of care owed by the landlord to the tenants and granted summary judgment.

Plaintiffs contend on appeal that a landlord has a duty to inform residential tenants of latent defects in the property existing when the leasehold begins. As a result, they assert that the motion judge erred in his conclusion that defendant was entitled to prevail as a matter of law. We disagree.

In Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the Court stated that when deciding a case on summary judgment, the motion judge 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." The motion judge determines whether the evidence requires a full hearing, or is "so one-sided that one party must prevail as a matter of law." Id. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). If there is no genuine issue as to any material fact, and the moving party is entitled to prevail as a matter of law, then summary judgment must be granted. R. 4:46-2(c). We review the motion judge's decision pursuant to the same standard: if no genuine issue exists as to any material fact, and the prevailing party is entitled to judgment as a matter of law, the award will be affirmed. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

In Szeles v. Vena, 321 N.J. Super. 601, 602 (App. Div.), certif. denied, 162 N.J. 129 (1999), Szeles, a tenant who had lived at the same premises for about three years, was injured when he fell on an exterior staircase due to a loose brick. Ibid. The suit alleged as bases for recovery both negligence theories and breach of an implied warranty of habitability. Ibid. Prior to the accident, Szeles was unaware that the brick was loose, although the steps were in an obvious state of disrepair. Id. at 603. He contended that "constructive notice should apply because of a . . . continuing duty of the landlord to inspect the premises." Id. at 604.

We reiterated in Szeles that "[a]t common law[,] a landlord was not liable to his lessee for physical harm caused by a dangerous condition existing on the land when the lessee took possession," and that this principle has very limited exceptions. Id. at 605-06. Additionally, the condition had not been brought to the attention of the landlord by the tenant, nor was it a condition about which the landlord should have been aware given the length of the tenancy. Id. at 607-08. Specifically, we said, "There is also no indication in the record of when the brick on the step came loose, and whether it came loose because of . . . wear or tear." Id. at 608.

In this case, the defect stopped being latent months after plaintiffs took occupancy. Plaintiffs undertook repairs, which, unfortunately, did not solve the problem. They did not contact their landlord. There is no basis in fact or law for imposing legal liability upon the landlord where the condition was known only to the tenant, was not brought to the landlord's attention, and was not a defect about which the landlord should have been aware. The authorities cited by plaintiffs in support of their position stand for the contrary proposition, that a landlord is responsible only for injuries to a tenant where the landlord knew, or had reason to know, of the dangerous condition. See, e.g., Restatement (Second) of Torts 358 (1977).

In Dowler v. Boczkowski, 148 N.J. 512, 515 (1997), a tenant suffered significant injuries in a house fire. The landlords, who at that time were not required to install or maintain smoke detectors, had allegedly moved the smoke detector from the bedroom area to a downstairs hallway adjacent to the kitchen, and had failed to maintain it. Ibid. Although the Court agreed that a breach of the covenant of habitability, as defined in Marini v. Ireland, 56 N.J. 130 (1970), could constitute a basis for liability for personal injuries, the Court also concluded that the alleged breach had to relate to actual habitability. Dowler, supra, 148 N.J. at 521-22. Because "the covenant of habitability and livability did not require the installation of smoke detectors in single family homes before the obligation was created by statute and implementing regulations . . . the placement of a smoke detector away from the bedroom area was not negligent as a matter of law." Ibid. In other words, as the landlords had no duty to install or maintain smoke detectors, and therefore did not breach the covenant of habitability, they could not be found to have been negligent. They had not breached any duty of care under either the covenant of habitability or traditional principles of negligence.

Significantly, the Court said, "[L]ike a loose tread on a stair, the absence of a smoke detector at a given location is readily apparent to a tenant." Id. at 522. This comparison is noteworthy because, in effect, the Court elected not to impose liability for even a patent condition, of which a tenant should be aware, that predated the residential tenancy. Id. at 518. In a similar fashion, even if the faulty placement of the threshold and the purportedly defective handrail are characterized as patent defects, they were in existence prior to the tenancy, equally visible to all parties. Therefore, the landlord cannot be held liable.

In sum, the landlord had no notice of the loosening of the nails that secured the threshold resulting from natural wear and tear. He cannot be held liable for a condition about which he was unaware, and which he did not have an opportunity to repair. See Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 52 (App. Div.), aff'd, 63 N.J. 577 (1973). Similarly, he cannot be held accountable for the handrail, a condition equally visible to all parties at the commencement of the tenancy. Dowler, supra, 148 N.J. at 522.

Affirmed.

Defendant's late wife Susie Rosenstock, who is still a record owner of the property, is the second named defendant. The lease was actually signed by plaintiffs and Donna Rosenstock, defendant's daughter-in-law, who acted as the rental agent. For ease of reference, defendant will be referred to as the landlord.

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A-1109-07T2

October 29, 2008