KALEEL MOORE v. ELSIE ROWE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2580-08T22580-08T2

KALEEL MOORE, by his mother

and guardian ad litem, ANNETTE

WILLIAMS,

Plaintiff-Appellant,

v.

ELSIE ROWE,

Defendant-Respondent.

___________________________________________

 

Submitted September 29, 2009 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0979-06.

Layser & Freiwald, P.C., attorneys for appellant (Joseph Marano, on the brief).

Respondent has not filed a brief.

PER CURIAM

Annette Williams, as mother and guardian ad litem for her minor child, brought this personal injury action seeking damages for lead paint poisoning her child sustained while residing in an apartment owned by defendant Elsie Rowe. Defendant was unaware that Williams and her minor child were living in the apartment, and the lease expressly prohibited children from living there. After the close of evidence, the trial court directed a verdict in favor of defendant, dismissing the complaint, determining that the child had no status under the law that gave rise to a cause of action against defendant. We reverse, concluding that the defendant had a duty of care toward her tenants and others invited by the tenant into the apartment, including the child.

I

From the record, we discern the following facts. After the birth of her child in March 2003, Williams went to live with the child's father, Kevin Moore, in the apartment of the child's paternal grandmother, Alice Moore. Alice Moore had rented the apartment for a number of years. Under the terms of the lease, she and Kevin Moore were the only people permitted to live in the apartment, and children were expressly prohibited from living there. After living in the apartment for eighteen months, Williams discovered that her child had sustained lead poisoning. Thereafter, the Department of Health determined that the apartment contained lead paint, and defendant obtained a grant and had the lead hazard remediated. Williams testified that the paint in the apartment was chipped. Williams presented the videotaped testimony of a medical expert who testified that the child had sustained lead poisoning caused by the lead-based paint in the apartment.

Alice Moore testified that she understood that the lease permitted only her son to reside with her in the apartment. She never advised defendant that Williams and her child were living in the apartment with her. Further, before the child's diagnosis of lead poisoning, she had no reason to believe that the apartment contained lead, and she had never complained to defendant about the presence of chipped paint in the apartment.

Defendant's deposition testimony was read into the record. Defendant did not live on the premises but would go to the apartment to collect rent from Alice Moore once a month. While on occasion she saw Alice Moore babysitting an older grandchild, she never saw Williams's child in the apartment. She was unaware that the apartment had lead paint and that Williams and her child were living in the apartment until she was advised of the lead paint hazard. Defendant last had the apartment painted in 1998 or 1999, and she testified that she never observed peeling paint there.

Williams did not contradict the testimony of Alice Moore and defendant that defendant was unaware that Williams and her child were living in the apartment, until the lead paint hazard was discovered. She testified that she had seen defendant collect rent from Alice Moore, and that on one occasion, when Alice Moore was out, she had handed the rent check to defendant. However, Williams testified that handing over the rent check was the only interaction she had with defendant and that her child had no interactions with defendant.

The case was tried to a jury, and at the close of evidence, the trial court granted defendant's motion for a judgment under Rule 4:40-1, dismissing the case. The trial court concluded that the child was not a tenant under the lease, that he was not an invitee or trespasser on the premises, that he had no legal status on the property, and that, accordingly, defendant had no duty to the child. Plaintiff has appealed, contending that the facts support a cause of action against defendant.

II

When deciding a motion for judgment under Rule 4:40-1, "the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced therefrom. Thus, if reasonable minds could differ, the motion must be denied." Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-1 (2010). In this case, accepting all of Williams's evidence as true and giving Williams the benefit of all the legitimate inferences that can be drawn from the evidence, the trial court had to determine whether defendant had a legal duty to the child. Since this determination turns on a question of law, we owe the trial court's decision on this issue no deference. See Edwards v. McBreen, 369 N.J. Super. 415, 421-22 (App. Div. 2004) (stating that we owe a trial court no deference on the question of whether a duty exists in a negligence case).

A landlord in a multiple dwelling has the responsibility of maintaining the premises in good repair. Dwyer v. Skyline Apts. Inc., 123 N.J. Super. 48, 51 (App. Div.), aff'd o.b., 63 N.J. 577 (1973). However, the landlord's liability for injuries caused by conditions on the property is governed by negligence principles. Id. at 52. For a landlord to be held liable for a dangerous condition on the demised premises, he must have known or should have known of the condition prior to the occurrence and had an opportunity to correct it. Ibid. An exception to this rule is where the landlord created the dangerous condition. Id. at 53.

Since his duty is not to insure the safety of tenants but only to exercise reasonable care, a landlord is liable only for injurious consequences to a tenant by reason of defects "of which he has knowledge or of defects which have existed for so long a time that . . . he had both an opportunity to discover and to remedy."

This basic element of actual or constructive notice in the area of landlord liability arising out of the duty to maintain and repair rented premises is ingrained in our law as a necessary prerequisite to a finding of negligence - the failure to exercise reasonable care. An exception of course exists in cases where the landlord created the condition.

[Id. at 52-53 (citations omitted).]

A landlord has the duty to exercise reasonable care in maintaining those portions of the premises under his control "in a reasonably safe condition for the use and enjoyment of tenants and their guests." Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 54 (App. Div. 1994). That duty includes "the exercise of reasonable care to guard against foreseeable dangers arising from the use of the premises." Ibid. A landlord's duty of care extends to the common areas that remain in his control and to areas inside the tenant's apartment where the landlord has undertaken maintenance and repairs, and includes the obligation to disclose known dangerous conditions in the demised premises. See id. at 54-55 (holding that landlord had a duty to exercise reasonable care when installing and repairing window screens in tenant's apartment); Faber v. Creswick, 31 N.J. 234, 242 (1959) (stating "that 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 or possession. Failure to do so, resulting in injury to the tenant or to a member of his family, gives a cause of action to the injured person.").

In New Jersey "[t]he presence of lead paint [in a] dwelling . . . readily accessible to children causing a hazard" is a public nuisance. N.J.S.A. 24:14A-5. Under negligence principles, a landlord may be held liable for injuries caused by this condition where the landlord knew or should have known of the lead paint. Ruiz v. Kaprelian, 322 N.J. Super. 460, 469-72 (1999) (concluding that the trial court properly submitted the question of the landlord's negligence to the jury in a personal injury case where plaintiff's minor child sustained lead poisoning from lead paint in the apartment). A landlord may not be held strictly liable for harm caused by the lead paint under the law of nuisance. Id. at 472-73. Further, while the landlord's warranty of habitability requires the landlord to take reasonable measures to assure that the unit does not have dangerous levels of lead paint, the landlord is not absolutely liable for injuries caused by the presence of the lead paint in breach of that warranty. Id. at 469-70. Rather, liability for the lead paint poisoning is based on a negligence cause of action.

Notably, the landlord's duty of care extends, not only to the tenant, but to people who are in the demised premises with the tenant's consent. See Anderson v. Sammy Redd & Assocs., supra, 278 N.J. Super. at 54 (providing that the landlord's duty of care in making a repair to the rented apartment extends to "tenants and their guests"); see also Faber v. Creswick, 31 N.J. 234, 238-42 (1959) (concluding that a landlord may be liable for personal injuries sustained by the tenant or anyone entering the leased premises under the tenant's right when the injuries were caused by the landlord's breach of a duty to repair).

The Restatement indicates that the landlord's duty of care extends to the tenant and anyone who is on the leased premises with the consent of the tenant, stating:

The liability of the landlord to those on the leased property with the consent of the tenant is the same as it is to the tenant. Where the landlord has warned the tenant of the existence of any latent defects, he is not responsible for injury to anyone visiting the tenant. However, where the landlord has not warned the tenant, he is subject to liability for injury caused by the latent defect to any social or business guests of the tenant or to member of the tenant's family.

[Restatement (Second) of Property: Landlord and Tenant 17.1 comment g (1977).]

Similarly, the Restatement (Second) of Torts provides that a landlord may be held liable for personal injuries to the tenant and "others upon the land with the consent of the lessee" in circumstances where the landlord has breached its duty to repair. Restatement (Second) of Torts 357 (1965). Williams and her child were in the apartment with the consent of the tenant, and thus, they were entitled to the same duty of care as the tenant, and defendant may be held liable to the child under a negligence theory.

Much of the discussion in the record and in Williams's brief concerning the law governing trespassers, licensees and invitees, including social guests, is inapplicable when determining defendant's duty to the child. These common law categories define the duty of one in possession of realty. See Benedict v. Podwats, 109 N.J. Super. 402, 406-07 (App. Div. 1970) (stating that "the duty owed by an occupier of land to third persons coming thereon is determined according to the status of such third person, i.e., invitee, licensee or trespasser" (quoting Snyder v. I. Jay Realty Co., 30 N.J. 303, 311 (1959))); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts, 58, 60, 61 at 393, 412, 419-20 (5th ed. 1984) (defining trespasser, licensee, and invitee, in terms of a person entering upon land in possession of or occupied by another). Thus, the common law categories trespasser, licensee or invitee would be consulted to define any duty Alice Moore, as the tenant in possession, would have to the child; they do not govern defendant's duty to the child.

In short, defendant's duty to the child is grounded in common law negligence and the duty of care owed by a landlord to the tenant and those in the apartment with the consent of the tenant. The fact that Williams and her child were residing in the apartment contrary to the provisions of the lease and without the knowledge of defendant are facts that may be considered when determining the reasonableness of defendant's conduct. In this opinion, we address only the legal question of whether the defendant had a legal duty to the child. We do not address whether the facts in the record are sufficient to support the cause of action.

Reversed and remanded for a new trial.

 

We note that under Rule 4:40-2(a) the trial court could have reserved on the motion, submitted the case to the jury, and then decided the motion.

(continued)

(continued)

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A-2580-08T2

October 16, 2009