PATRICIA DONOHUE v. ROBERT POLOZZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1853-08T31853-08T3

PATRICIA DONOHUE,

Plaintiff-Appellant,

v.

ROBERT POLOZZO and

BARBARA POLOZZO,

Defendants-Respondents.

_________________________________

 

Submitted October 7, 2009 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-861-07.

Silvi, Fedele & Honschke, L.L.C., attorneys for appellant (Neil D. Honschke, on the briefs).

Kelaher, Garvey, Ballou & Van Dyke & Rogalski, attorneys for respondents (Robert A. Ballou, Jr., on the briefs).

PER CURIAM

In this personal injury case, the Law Division granted defendants, the lessors of a single-family house, summary judgment dismissing the negligence complaint of plaintiff, a lessee who fell on the basement stairway within the premises. Plaintiff appeals, and we affirm.

The underlying facts are not complicated. Defendants Robert and Barbara Polozzo, formerly husband and wife, purchased a two-story, single-family house in Toms River in September 2003. They bought the residence from the family of the late Hugo Agnoli, the builder and original owner of the house. At the time, defendants lived nearby in Toms River. Prior to closing, defendants had the house inspected by a licensed residential inspector. In anticipation of renting the house, defendants refinished the kitchen cabinets, painted the house, and replaced the exterior windows in the basement. Mr. Polozzo, who has worked in home construction as a carpenter since 1986, personally installed new basement windows.

The house consists of two floors above ground level and a partially-finished basement with some carpeting. The basement includes laundry facilities and a lounge area. Access to the basement from the first floor is through an internal stairway, which runs along one wall of the basement. At the time of the accident the stairway had no handrail, either along the wall or on the interior of the staircase. At the top of the staircase, set into the wall, was a shelf, which plaintiff eventually used to store canned goods.

At some point between September 2003 and April 2004, Mrs. Polozzo obtained an application for a municipal certificate of occupancy, in anticipation of being able to market the home for rental purposes. However, she neglected to fill out the application. The certificate of occupancy application includes a list of inspection requirements that the owner must satisfy prior to the issuance of a certificate. That list includes a requirement that "[a]ll hand rails[,] interior and exterior must be secured; you must have handrails when more tha[n] 4 risers or 30 inches or more in height." Defendants also failed to register the house as a rental property with Toms River Township, and did not have the house inspected by the Township, despite local ordinance requirements.

In April 2004, defendants entered into a lease agreement with plaintiff, Patricia Donohue and Daniel Conti, her fiancé. On May 1, 2004, plaintiff moved into the home, along with Conti and her seventeen-year-old daughter.

During her lease of the premises, plaintiff regularly used the stairs to the basement on nearly a daily basis, either to gain access to the finished lounge area of the basement or to bring laundry to and from the washer and dryer.

At no time did plaintiff or Conti complain to defendants about the lack of a handrail along the stairs. Plaintiff did, however, complain that the stairs had no treads on them, and eventually Mrs. Polozzo installed plastic "non-stick" stair treads on the tops of each stair, although she did so after plaintiff's slip-and-fall accident.

Plaintiff's injury occurred on the evening of March 9, 2005. Her sister and nephew came to the house for a party to celebrate plaintiff's forty-sixth birthday. Also present at the party were Conti, his son, plaintiff's daughter, and a friend of Conti's. During the course of the party, plaintiff drank an estimated three or four glasses of red wine.

At approximately 10:00 p.m., after the birthday festivities had ended, plaintiff went down to the basement after seeing her sister out. Once she was downstairs, plaintiff said goodnight to Conti and his friend, who were in the basement lounge watching a movie on television. She then started to go back up the stairs.

Plaintiff failed to remember anything from that point until she was seated upstairs at the dining room table, bleeding from her head and speaking to a paramedic. The record does reflect that plaintiff's leg slipped on a step, about three-quarters of the way up the staircase. She then fell backward, toppling several large cans of tomatoes down the stairs with her.

Conti testified at his deposition that he did not see plaintiff fall, but that he had heard some of the canned goods fall and plaintiff tumble. There were between twelve and fourteen steps in total. Conti estimated that plaintiff had made it to "about three steps from the top" before she fell, because that is where the shelving was for the canned goods.

After plaintiff fell, Conti and his friend came to her aid, telling her not to move. They called in paramedics to take her to the hospital. Once at the hospital, plaintiff underwent surgery to drain a subdural hematoma. She was admitted to the hospital to recuperate, and eventually was released into the care of a rehabilitation center for three months. Plaintiff then went to outpatient rehabilitation, which she was still attending at the time this lawsuit was filed.

In early 2006, plaintiff and her family moved out of the house. Defendants have subsequently divorced, and Mr. Polozzo has taken up residence in the house.

Plaintiff filed this action in the Law Division in March 2007. Her complaint alleged that defendants had negligently maintained the house and had failed to adequately warn plaintiff, or her family, of the dangerous condition of the basement staircase. Defendants responded that they owed no duty of care to plaintiff, since they had given her exclusive dominion and control over the leased premises and that the supposed dangerous condition was not concealed. After discovery was completed, defendants filed a motion for summary judgment. Defendants argued that plaintiff had failed to establish a duty that was owed to her and breached.

Plaintiff emphasized that the dangerous condition of the staircase arose prior to the transfer of possession of the leased premises. As a result, she argued, defendants owed a duty to maintain the premises according to the building code of the Township. As part of her response, plaintiff filed an expert report prepared by George R. Reicherter II, RA, NCARB, an architect. Mr. Reicherter's report opined that:

Within the bounds of reasonable architectural and technical certainty, and subject to change if additional information becomes available, it is [his] professional opinion that:

1. The uneven riser heights at the top of the stair[s] was a hazardous condition that interfered with [plaintiff's] ability to safely ascend the stair[s] and resulted in her loss of balance.

2. The lack of a handrail created a hazardous condition, violated applicable codes and standards and impaired [plaintiff's] ability to maintain her balance, regain her balance[,] or arrest her fall.

3. [Defendants'] failure to safely maintain the required handrail violated applicable existing property maintenance codes and standards and was a cause of [plaintiff's] fall.

Defendants, meanwhile, contended that the conditions complained of by plaintiff were "obvious and apparent." They asserted that the patent nature of the stairway's lack of a handrail precluded the court from imposing any duty upon them to warn plaintiff about that condition.

After hearing oral argument, the motion judge granted summary judgment to defendants. He found that defendants, as a matter of law, had breached no duty to plaintiff in failing to warn her or to correct the claimed dangerous condition of the stairway. In his written decision, the judge concluded that "the alleged defect was patent and obvious to the tenants that had occupied the premises for at least 10 months and regularly used the basement stairs." Consequently, the judge ruled that there was no genuine issue of material fact to support plaintiff's theory of premises liability against her landlords.

Plaintiff now appeals, arguing that the motion judge misapplied the law, that defendants owed plaintiff a duty of care regarding the stairway and have breached it, and that there are material facts for a jury's consideration. Plaintiff stresses defendants' failure to obtain the necessary municipal registration and inspection of the premises. She maintains that defendants' failures to do so warrant the imposition of liability, irrespective of whether the absence of a handrail on the stairs was apparent to plaintiff or not.

We review the Law Division's order of summary judgment under familiar standards. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). To determine whether a genuine issue of material fact exists, the motion judge is to consider whether the competent evidence presented as part of the motion, when viewed in the light most favorable to the non-moving party, is sufficient to permit a rational factfinder to resolve the disputed factual issue in that non-moving party's favor. Brill, supra, 142 N.J. at 540. On appeal, we apply the same standards under Rule 4:46 as the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).

The pivotal issue in this case is whether the defendant lessors owed a duty to plaintiff, cognizable in a tort action, to install a handrail on the basement stairs or to warn her about the absence of such a handrail. "The question of whether a duty exists is a matter of law properly decided by the court, not the jury, and is largely a question of fairness or policy." Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991) (citing Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988)).

As part of his legal analysis of the question of duty, the motion judge relied, in part, upon this court's opinion in Patton v. The Texas Co., 13 N.J. Super. 42, 47 (App. Div.), certif. denied, 7 N.J. 348 (1951). In Patton, we held that a residential lessor should not be liable for injuries sustained by a tenant or a tenant's invitee "unless there has been fraudulent concealment of a latent defect." Id. at 47; see also Szeles v. Vena, 321 N.J. Super. 601, 606-07 (App. Div.), certif. denied, 162 N.J 129 (1999) (applying Patton and finding that a landlord was not liable to a tenant for a patent, unconcealed dangerous condition of a staircase). The motion judge determined in the present case that there was no proof that defendants had "fraudulently concealed" the absence of a handrail from plaintiff, and thus plaintiff could not establish a breach of duty by the lessors under Patton.

Plaintiff urges us on appeal to reject the "fraudulent concealment" test espoused in Patton as outdated and out of harmony with the safety-oriented and compensatory principles of modern tort law. She argues that she should be permitted to present her claims to a jury, regardless of whether or not defendants engaged in any fraudulent concealment.

We are mindful that the elements of liability expressed in Patton preceded the 1965 adoption of the Restatement (Second) of Torts by the American Law Institute ("ALI"), which recommends no such prerequisite of fraudulent concealment. See Restatement (Second) of Torts 358 (1965). We also recognize that the continued vitality of Patton has been questioned. See Szeles, supra, 321 N.J. Super. at 606-07.

Most recently, in Reyes v. Egner, 404 N.J. Super. 433 (App. Div.), certif. granted on other grounds, 199 N.J. 130 (2009), we discussed at length the residential lessor's duty of care, under the principles of Section 358 of the Second Restatement. As we noted in Reyes, id. at 452, Section 358 provides, in pertinent part:

(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 . . . 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 of 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 lessee 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.

[Restatement (Second) of Torts at 358 (emphasis added).]

We held in Reyes that these principles of Section 358, rather than the "fraudulent concealment" standard of Patton, should govern a lessor's potential liability for the dangerous condition of premises that are rented in a short-term lease. Reyes, supra, 404 N.J. Super. at 455-56.

The facts in Reyes concerned a tenant's guest who lost his balance when stepping out onto a deck through a sliding glass door in an upstairs bedroom. The glass door led to a small intermediate platform which, in turn, was raised several inches above a wooden deck. The deck had no handrails. The plaintiff toppled from the platform to the deck, and then to the ground below, having no handrails to brace himself.

The plaintiff and his expert in Reyes asserted two theories of negligence against the lessors of the premises. First, the plaintiff claimed a hazardous "lack of conspicuity" between the color and appearance of the wooden platform and the deck below it, which would not be reasonably apparent to someone exiting the bedroom. Id. at 444. Second, the plaintiff contended that the absence of a handrail, which was required under the local building code, independently created a hazard for which the lessor should be liable. Id. at 444-45.

In applying the liability standards of Section 358 in Reyes, we reached different conclusions with respect to the plaintiff's two discrete claims of negligence. As to the alleged "lack of conspicuity" of the platform drop-off, we ruled that there were genuine factual issues as to whether the lessors had reason to know of that potential visual hazard and whether the changes in elevation would have been reasonably noticed by the plaintiff. Id. at 461. Summary judgment on that conspicuity issue was therefore vacated. Ibid. By contrast, we upheld summary judgment in Reyes concerning the absence of a handrail, even though the handrail was apparently mandated by the building code. We sustained the dismissal of the handrail claim because the tenant had admitted that she was aware before the accident that the deck had no handrail. Id. at 462. The tenant's awareness of that particular dangerous condition precluded recovery under Section 358, which only imposes liability for conditions that are not known, or reasonably discoverable, by the tenant. See Restatement (Second) at 358(1)(a) and (b).

Here, even viewing the record in a light most favorable to plaintiff, her claims against defendants regarding the missing handrail fail not only to meet the requirements of Patton, but even fail to meet the less-stringent requirements of Section 358. The absence of the handrail was a patent, not a latent, condition with respect to plaintiff, who indisputably went up and down that stairway virtually each day for ten months before she fell and injured herself. Her fiancé, at his deposition, likewise acknowledged that daily usage. Defendants had no duty to warn her of something that she clearly would have noticed when going up and down the stairs with baskets of laundry or to visit the downstairs recreation room. There is also no proof here of any "active concealment" by defendants. See Restatement (Second) of Torts at 358(2). Although defendants should have had their rental property registered and inspected, and conformed with code requirements, those oversights are of no moment to the patency of the condition.

For these reasons, consistent with Reyes and other applicable legal principles, summary judgment was appropriately granted in defendants' favor. Although we appreciate the severity of plaintiff's injuries, defendants were not obligated to protect her from falling on stairs that plaintiff clearly should have known had no handrail to protect her from harm if she lost her balance while ascending them.

Affirmed.

 

The record is unclear as to whether the lease was oral or written, and as to whether it was for a defined period or for a month-to-month lease.

Plaintiff's theory of liability in this action does not encompass the absence of the treads.

The Supreme Court's grant of certification in Reyes is limited to issues pertaining to the potential liability of a real estate broker for the dangerous condition of leased premises, an issue not presented here. The Court's review therefore leaves undisturbed the Appellate Division's disposition of the issues in Reyes concerning the negligence claims against the lessor of the premises.

The ALI has recently amplified these principles in a proposed Third Restatement of Torts, which recommends imposing a duty upon lessors to alert lessees to dangerous conditions that are "latent and unknown to the lessee." See Restatement (Third) of Torts ch. 9, 53(c)(3) (Tentative Draft No. 6, 2009).

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A-1853-08T3

November 9, 2009