DAWN GOKEY v. PAUL E. PROKOPY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1904-08T31904-08T3

DAWN GOKEY,

Plaintiff-Appellant,

v.

PAUL E. PROKOPY and LOIS R.

DORING,

Defendants-Respondents.

_____________________________________

 

Argued September 15, 2009 - Decided

Before Judges Wefing and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Sussex County,

L-737-06.

William J. Vosper, Jr., argued the cause

for appellant.

William J. Rada argued the cause for

respondents (Methfessel & Werbel, attorneys;

Mr. Rada, on the brief).

PER CURIAM

Plaintiff Dawn Gokey commenced this litigation to recover damages for injuries she sustained as a consequence of falling down the stairs of a single-family home she rented from defendant Lois R. Doring. Doring and her brother, defendant Paul E. Prokopy, own the property. Gokey appeals from a grant of summary judgment in favor of defendants. Because defendants are entitled to judgment as a matter of law, we affirm.

These are the facts stated in the light most favorable to Gokey. In July 1992 Gokey and Mark Haubrich rented a single- family residence, which is located in Vernon, New Jersey, from Doring. Haubrich died in September 2004, but Gokey continued to live in the house. She fell on January 29, 2005, nearly thirteen years after she took possession of the property and the house.

Gokey fell at about 11:45 p.m. while descending a stairway that leads from the front door of the house to the driveway. The night was clear but cold, and Gokey was wearing work boots. There was no ice or debris on the dry steps, which were lighted by fixtures at the front door and on the garage.

The wooden stairway has twelve steps and one wooden railing. When Gokey placed one foot on the second stair from the top, "something got" her. To Gokey, the incident was "a blur." She recalled attempting, without success, to grab the wide handrail to stop her "free fall," but she "just hit" the railing with her hand and ended up in a sitting position on the second step from the bottom with her ankle behind her. Although she heard a "crackling" sound as she started down the stairs, a noise she had heard before when the weather was cold, Gokey did not feel the step move beneath her foot.

Over the years, Haubrich had done some work on the stairs. In 2000, he installed outdoor carpet because the steps became slippery when wet. In addition, he blocked the open space between the handrail and the stairs by placing "slats" or "spindles" that run from the top surface of each step to the underside of the railing. Apart from those improvements and ordinary removal of debris, ice and snow, no one did anything to repair, maintain or modify the stairway during Gokey's tenancy.

Other than discussing the slipperiness of the steps prior to Haubrich's installation of the carpeting, Gokey had not complained to Doring about the steps. Although Gokey recalled Haubrich telling her that Doring suggested they use the back door when he said something about the stairway, Gokey was not present when they had that conversation. Doring had spoken to Gokey about the stairs, however. About a year before Gokey's fall, Doring discussed the condition of the house with Gokey and, as she had in the past, mentioned the steps and recommended Gokey greet children on Halloween at the foot of the stairway.

Gokey's expert, a professional engineer, examined the steps on October 10, 2006, about a year and one-half after the accident. He described the general condition of the stairway as "poor," noting its construction and inadequate structural support, the "badly worn and torn" carpet covering, and uneven "tread surfaces." The engineer pointed to the fact that the top sections of the separate steps were composed of more than one piece of untreated wood which were not even with one another. There was a one-quarter-inch ridge across the center of the first step down from the top and a one-eighth-inch ridge across the center of the second step. The engineer gave this explanation for that condition:

The multiple boards used for each tread, and the wood braces and risers, are untreated lumber. That is, these structural members are bare wood with no treatment or coating. These untreated/uncoated structural members are exposed to the elements. Moreover, there are no roof gutters above the top stairway landing. Accordingly, water runoff from the roof of the structure is channeled onto the stairway. This water seeps through the carpeting, and directly runs through the torn sections of the carpeting, to the structural wood members below. Because these members are exposed and untreated/uncoated, this exposure is causing them to rot, splinter, warp, and break down. These various problems make the stairway in question structurally unsound and allow tread surfaces to flex/move inordinately underfoot.

. . . .

These ridges are, as previously discussed, caused by the use of multiple boards for tread construction and the unsound, warped, and deteriorating condition of these stairway members. The presence of these ridges create[s] unsound/unstable footing on these treads.

The engineer did not, however, refer to any standard proscribing the use of multiple boards to form the "tread" section of a stair.

In contrast, the engineer observed that the handrail and stairway did not meet accepted standards. The handrail, due to its shape and size, was not in compliance with standards for grasping. And, differences and irregularities in the relative height and depth of the individual steps also exceeded accepted limits.

In the opinion of Gokey's engineer, the stairway was defectively designed, constructed and maintained and "led to dangerous pedestrian footing for [Gokey] and caused her accident." That accident, in his view, was "entirely predictable" and "avoidable by normal and accepted area design, construction and maintenance practice."

The initial one-year lease signed by Gokey and Haubrich in 1992 was the only lease ever signed during Gokey's tenancy. That lease addresses the condition of the premises and responsibility for repair in three provisions:

10. Upon reasonable notice to the Tenant the Landlord shall have the right to enter the property, at reasonable hours, for the purpose of examining or making any repairs or alterations as may be necessary for the safety and preservation of the property and to show the property to prospective and actual mortgagees and purchasers.

11. The tenant shall keep the property and the fixtures in good order and repair and shall at the Tenant's expense make all required repairs to the plumbing, range, heating apparatus, air conditioning, sprinklers, electric or gas fixtures, or any other property whenever damage has resulted from the Tenant's misuse or neglect, it being understood that the Landlord is to have the property in good order when giving possession. . . .

. . . .

ADDITIONAL AGREEMENTS (if any): . . . Tenant will do repairs to house with owner permission. Landlord will pay for materials.

On appeal from a grant of summary judgment in favor of defendants, the question is whether they are entitled to a judgment as a matter of law if the plaintiff is given the benefit of all favorable facts and inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The grant of summary judgment was appropriate in this case.

A fall followed by injury is not enough to require a jury trial on a claim of negligence. The plaintiff must establish that the defendant owed and breached a duty of reasonable care and thereby caused an injury. Gardner v. Pawliw, 150 N.J. 359, 377 (1997). The trial court concluded that the evidence was insufficient to permit a jury to find that Gokey's fall was caused by defendants' negligence. Nonetheless, because our review is de novo and of the judgment rather than the trial court's decision, we may and do affirm on a different ground Gokey failed to establish a duty of reasonable care that defendants breached. See Marchitto v. Central R. Co. of N.J., 9 N.J. 456, 463 (1952), overruled on other grounds, Donnelly v. United Fruit Co., 40 N.J. 61 (1963); Estate of Spencer v. Gavin, 400 N.J. Super. 220, 241 (App. Div.), certif. denied, 196 N.J. 346 (2008).

The common law generally absolves a landlord of a duty to protect the lessee from physical harm caused by a dangerous condition on the leased property, but there are exceptions to that general rule. Szeles v. Vena, 321 N.J. Super. 601, 605 (App. Div.), certif. denied, 162 N.J. 129 (1999); Restatement (Second) of Torts 355-58 (1965). In recognizing and defining the scope of these exceptions, our courts generally look to the rules as formulated in the Restatement. See Reyes v. Egner, 404 N.J. Super. 433, 448-56 (App. Div.) (discussing the evolution of the law and the decisions of our courts relying upon the Restatement), certif. granted, 199 N.J. 130 (2009).

One exception assigns to the landlord a duty to disclose a concealed dangerous condition. "[A] landlord, knowing of an actually or deceptively concealed dangerous condition on the premises, is under a duty to disclose it to the tenant at or prior to the transfer of possession." Faber v. Creswick, 31 N.J. 234, 242 (1959); cf. Reyes, supra, 404 N.J. Super. at 459-61 (discussing and disapproving a narrower duty imposed upon proof of "fraudulent concealment" of the danger articulated by this court in Patton v. The Texas Co., 13 N.J. Super. 42, 47 (App. Div.), certif. denied, 7 N.J. 348 (1951); Patton's formulation of the rule is inconsistent with the broader rule subsequently stated by the Supreme Court in Faber).

In Faber, the Court held that the landlords who failed to warn their tenant of a dangerous condition in the circumstances of that case could be found liable for the injuries the tenant sustained as a consequence of that condition. 31 N.J. at 242-43. The landlords in Faber created the dangerous condition at issue by placing plasterboard in the attic to cover over an otherwise open stairway below, but they did not alert the tenants to the condition or the danger. Id. at 243. The first time Mrs. Faber used the attic, she stepped on the plasterboard and fell through it. Ibid. Concluding that the evidence was sufficient to permit the jurors to find that the landlords were aware of the dangerous condition and failed to alert their tenants of a danger that could not have been "obvious" to them, the Court reversed a grant of judgment at the close of plaintiff's case. Ibid.

In imposing a duty to warn of a dangerous condition known to the landlord at the time the lessee takes possession, the Court approved and applied the formulation of that duty as stated in the Restatement (First) of Torts 358 (1934). Faber, supra, 31 N.J. at 243. Under that formulation, the duty applies if "the lessee does not know of the condition or risk involved" and "the lessor knows of the condition and realizes the risk." Ibid. When Faber was decided, the Court had already held that in the context of an action for negligence, the inquiry with respect to realization of a risk is whether a reasonable person would be aware of the risk. Berger v. Shapiro, 30 N.J. 89, 100 (1959) (and cases cited therein). And, in observing that the danger posed by the plasterboard "cannot be said to have been obvious to" Mrs. Faber, the Court noted not only her testimony denying "consciousness of the danger" but also that "the accident occurred during [her] initial use of the attic." Faber, supra, 31 N.J. at 243. Thus, the Court focused on the tenant's subjective knowledge of the risk and the objective "reasonableness" of her failure to appreciate the risk by the time of the accident.

Since Faber, the American Law Institute has clarified the formulation of a landlord's duty to warn about a dangerous condition:

(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 lessee has had reasonable opportunity to discover the condition and to take such precautions.

[Restatement (Second) of Torts 358 (1965).]

The clarifications of the standards for assessing the awareness of the condition and the risk it involves, which are incorporated in paragraphs (a) and (b) of subsection (1), are consistent with Faber and with the Court's more recent decision addressing awareness of a dangerous condition and its risk in defining the scope of the duty owed by a landowner to a social guest. See Parks v. Rogers, 176 N.J. 491, 498 (2003). Section (2), which limits the duration of the landlord's duty in accordance with the lessee's "reasonable opportunity to discover the condition and to take" precautions, is consistent with the Court's analysis of the reasonableness of the tenant's failure to realize the danger in Faber, supra, 31 N.J. at 243. See also Szeles, supra, 321 N.J. Super. at 605 (considering the duration of the tenancy where the tenants had lived in the rental for three years).

On this evidence, a jury applying the standards set forth in Section 358 could not reasonably find conditions essential for defendants' liability. Giving Gokey the benefit of every favorable inference available from her expert's report and her testimony, the dangerous condition of the stairs contributing to her fall what "got" her was a ridge on one of the two top steps that made the surface uneven. According to Gokey's expert, however, those ridges developed over the years due to a combination of factors, including the carpeting that trapped moisture. There was no evidence that would permit an inference that these ridges existed when Gokey and Haubrich took possession.

Assuming, without deciding, that Section 358 permits liability based upon a condition that develops over time, Gokey could not prevail without showing that Doring had reason to know of the condition and realize the risk as it developed and that Gokey did not. These facts do not permit that inference. Gokey and her cotenant installed the carpeting and used the stairway on a daily basis for more than a decade. If the developing ridges were concealed by the carpet, that carpet was placed by the tenants. Moreover, Gokey and Haubrich, who used the steps on a daily basis for over a decade and did structural work on the stairway after taking possession, were in a far better position to have "reason to know" of any danger than Doring. Finally, on these facts a jury could not conclude that defendants' duty continued because Gokey had not yet had a "reasonable opportunity" to observe any danger posed by the ridges as they developed and to take precautions.

We recognize that the expert's opinion would permit a jury to conclude that the design of the handrail contributed to the severity of Gokey's fall. Nonetheless, as with the ridges on the steps, a jury could not conclude that Gokey did not have "reason to know" of the condition after living in the home for thirteen years. Thus, there was no question for the jury relevant to the handrail.

On appeal, Gokey also argues that defendants breached a broader duty to repair that they assumed under the terms of the lease. It is not clear that this theory of liability was pled in the complaint or raised in opposition to defendants' motion for summary judgment. Because defendants do not object to our consideration of this issue on either ground, however, we assume that it was pled and was raised at the time of summary judgment. See Bauer v. Nesbitt, 198 N.J. 601, 610 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

It is well-settled that a landlord who agrees to keep the leased premises in repair has "a duty in tort with liability to the tenant for damages consequential to a negligent failure to perform." Michaels v. Brookchester, Inc., 26 N.J. 379, 385 (1958); accord Restatement (Second), supra, 357. This lease, however, cannot be read to include such an agreement.

Like the lease at issue in Michaels, this lease reserved for the landlord "the right to enter the property, at reasonable hours, for the purpose of examining or making any repairs or alterations as may be necessary for the safety and preservation of the property." See id. at 390. In Michaels the Court recognized that such a reservation of the landlord's right to enter and repair was not an express undertaking of a duty to repair. Id. at 390. Nonetheless, based upon other provisions of the lease, the Court found sufficient ambiguity in the contract to permit admission of evidence of a course of performance consistent with the landlord's agreement to assume the duty to repair and evidence sufficient to allow the jurors to conclude that the landlord agreed to assume and breached that duty. Id. at 390-91.

This case is distinguishable from Michaels based upon both the terms of the lease and the history of performance under the contract. Most important, this lease, unlike the one at issue in Michaels, expressly provides that the "[t]enant will do repairs to [the] house with owner permission" and the owner will pay for the materials. That unambiguous provision negates any implication that defendants assumed a duty to repair by reserving their right to do so. See Restatement (Second), supra, 357 comment b (1) (noting that the reservation of the right to enter and make repairs, without more, does not trigger this duty). Further, the undisputed evidence of the parties' performance under this lease confirms their understanding that repairs would be done by the tenant; that is what was done during this long tenancy. Thus, in this case there is no genuine question of fact relevant to the parties' respective obligations under the lease.

Affirmed.

 

Doring and her brother acquired the property upon the death of their parents, who were the prior owners. The lease, however, was signed by Doring and her husband. The evidence indicates that Lois Doring is the person who dealt with Gokey during her tenancy.

The text of Section 358(2) quoted above is corrected to conform with a "Note" directing that the first sentence "should read: If the lessor actively conceals the condition" and the second sentence "should read: continues only until the lessee has had reasonable opportunity[.]" Restatement (Second) of Torts: Appendix 310 to 402, 1976 - June 1984, 358 (1986) (emphasis added).

The lease was submitted to the trial court, but the material statements of fact refer to its existence but not its terms.

(continued)

(continued)

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A-1904-08T3

October 21, 2009