(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1095-16T3
THOMAS G. LECHLER, and
ULRIKE LECHLER, his wife, APPROVED FOR PUBLICATION
Plaintiffs-Appellants, December 29, 2017
303 SUNSET AVENUE CONDOMINIUM
ASSOCIATION, INC., and
TOWNSMEN PROPERTIES, LLC,
Argued November 28, 2017 – Decided December 29, 2017
Before Judges Reisner, Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
Richard P. Krueger argued the cause for
appellants (Krueger & Krueger and The Blanco
Law Firm, LLC, attorneys; Richard P.
Krueger, on the brief; Pablo N. Blanco, of
counsel and on the brief).
Patrick B. Minter argued the cause for
respondents (Donnelly Minter & Kelly, LLC,
attorneys; Patrick B. Minter, of counsel;
Seth A. Abrams, on the brief).
Ronald B. Grayzel argued the cause for
amicus curiae New Jersey Association of
Justice (Levinson Axelrod, PA, attorneys;
Ronald B. Grayzel, on the brief).
The opinion of the court was delivered by
In this premises liability case, plaintiffs Thomas and
Ulrike Lechler1 appeal from the October 24, 2016 Law Division
order granting a directed verdict to defendants, 303 Sunset
Avenue Condominium Association, Inc. (Association) and its
property manager, Townsmen Properties, LLC (Townsmen), and
dismissing plaintiffs' negligence claim with prejudice. We hold
that the Association had a statutory duty to maintain the common
areas, including a duty to identify and correct dangerous
conditions, and that duty extended to residents of the
condominium building, regardless of their characterization as
licensees or invitees. While a condominium association has a
statutory right to adopt a by-law precluding residents from
suing the association for negligence, the Association did not
adopt such a by-law. Because plaintiff's evidence, if credited
by the jury, established a prima facie case of negligence, we
reverse and remand for a new trial.
We discern the following facts from the trial record. In
October 2008, plaintiffs purchased a unit from the developer of
In this opinion, we refer to Thomas and Ulrike Lechler
collectively as "plaintiffs," and Thomas Lechler individually as
"plaintiff." Plaintiff's wife sues per quod.
3 The 303 Sunset Avenue Condominium (The Condominium), a three-
story building containing twenty-four residential units in
Asbury Park. The developer established The Condominium in
accordance with the provisions of the Condominium Act (Act),
N.J.S.A. 46:8B-1 to -38. The Master Deed for The Condominium
delegates to the Association "all of the powers, authority and
duties permitted pursuant to the Act necessary and proper to
manage the business and affairs of [T]he Condominium."
Plaintiff's accident occurred when he stumbled down the
center of The Condominium's wide exterior stairs that led from
the building to a walkway. Despite the width of the stairs –
158 inches – they lacked a center handrail, with hand railings
only going down the sides. A photograph introduced at trial
showed bolt holes in the center of the stairs, indicating a
railing previously went down the middle of the stairway.
Plaintiff's expert also observed that there were bolts inside
the drill holes.
Plaintiff testified that on August 24, 2014, he started to
stumble near those holes, could not catch his balance, and thus
began to run down the staircase trying to recover his balance;
however, he hit the last step with the edge of his left heel and
fell to the ground, screaming in pain. Plaintiff described his
left heel as "completely deformed." A passerby called an
ambulance, which transported plaintiff to a nearby hospital.
There, doctors diagnosed plaintiff's injury as a displaced
fracture of the calcaneus of the left foot. Later that day,
plaintiff underwent internal fixation surgery, with the
installation of hardware to repair the fracture.
The balcony of plaintiffs' unit overlooks the stairs where
his accident occurred. Plaintiff admitted he had used the
stairs "on many occasions prior" to that day. He usually walked
"down the stairs in the middle." He never experienced a problem
using the stairs before his accident.
Plaintiffs also presented the testimony of the
Association's president. She lived in The Condominium since the
summer of 2010, and became the Association's president that same
year. She agreed the By-Laws stated, "The [B]oard of
[D]irectors shall have the powers and duties necessary or
appropriate for the administration of the affairs of the
[A]ssociation and shall include but shall not be limited to the
following: the operation, care, upkeep, maintenance, repair, and
replacement of the property and the commons elements." She also
agreed that "under the [B]y-[L]aws, the [A]ssociation shall
discharge its powers in a manner that protects and furthers the
health, safety, and general welfare of the residents of the
community." She recognized these By-Laws established "an
obligation that the [A]ssociation . . . owes to the members of
Regarding the stairs where plaintiff's accident occurred,
the president said she knew people walked down the center
without using the handrails, and she had done so herself.
Before plaintiff's accident, she had never received a complaint
about the stairs and its lack of a center handrail. She further
testified that the State inspected The Condominium in 2012, and
the inspector did not advise that the stairway needed a center
On October 19, 2013, Townsmen entered into an agreement
with the Association to serve as The Condominium's project
manager. The agreement required Townsmen to coordinate "all
daily property management issues, such as repairs, maintenance,
landscaping, snow removal, [and] security" for the Association.
Plaintiff's counsel also read from the deposition of Townsmen's
owner, who acknowledged that, under the agreement, his company
was responsible "for the coordination of all daily
property . . . maintenance, landscaping, snow removal, security,
and all other issues including contracting, negotiating, and
monitoring." When asked if his company was responsible "to make
recommendations to the [B]oard as to safety concerns on the
premises," he replied, "Could be."
Plaintiff also presented the expert testimony of a licensed
architect and professional planner. Defendants did not object
to his qualifications as an expert in these fields. The expert
testified the Building Officials & Code Administrators
International, Inc. (BOCA) code was established in the 1950s,
and then updated every three years. He further explained that,
before 1977, different municipalities could adopt different
model codes, but most adopted the BOCA code.
The expert measured the distance between the handrails on
either side of the stairs, determining they were 158 inches
apart. He testified that in 1975, the year The Condominium
building was constructed,
the BOCA basic building code . . . required
a central handrail for any stairway greater
than [eighty-eight] inches wide. . . . A
center handrail was, in fact, installed.
Somebody removed it. . . . [W]hen they
removed this railing, they made the stairway
less safe[,] [b]ecause they removed a very
important safety feature . . . .
He added the New Jersey subcode that applies to renovations
prohibited the removal of any "previously-installed item in a
building that was installed in accordance with the code."
Accordingly, defendants should have replaced the handrail with
"a code compliant handrail."
The expert reviewed The Condominium's "architectural
exhibits," which were "used as part of the public offering
statements" and were presumably "given to . . . [prospective]
purchaser[s] so they could then review all the components within
the building including their unit . . . ." The exhibits showed
a handrail going down the center of the stairs. The expert said
the architect would have only drawn a handrail if the stairs
actually had one. He therefore concluded the stairs had a
handrail when the architect drew the exhibit.
The expert explained that, in 2012, the State inspected The
Condominium for maintenance code violations, not building code
violations; while the maintenance code only requires handrails
on either side of the stairs, the building code also requires
one down the center.
The expert further testified, "And if the property manager
were to visit that building, [the manager] would see bolts
sticking out – you know, bolts in the threads, which . . . begs
the question, why are those bolts there, why was that handrail
there." He added:
[I]f they had called upon a professional or
somebody else to look at that and give them
an opinion, that professional – it is
reasonably probable that the professional
would have told them, well, that was . . . a
center handrail, and previous codes and
standards required a center handrail. And I
don't know who removed it, but it's not
The expert also testified that Townsmen "should have
recommended to the [A]ssociation that the handrail be
reinstalled because it's a safety feature." He concluded, "[I]f
the center handrail was there when [plaintiff] lost his balance,
he could have grasped the handrail and regained his
balance. . . . The lack of a center handrail was the substantial
contributing factor to the fall."
After plaintiffs presented their case, defendants moved
for a directed verdict, arguing plaintiff knew the stairs lacked
a center handrail. The trial court agreed, concluding plaintiff
was a licensee aware of the missing handrail. While the court
N.J.S.A. 46:8B-14 requires condominium associations
to "maintain, repair, replace, clean, and sanitize the common
elements," it found the record lacked proof defendants knew they
needed to replace the handrail. As a result, the court granted
defendants' motion for a directed verdict and dismissed
plaintiffs' complaint with prejudice.
This appeal followed.
The same evidential standard governs motions for judgment,
whether made under Rule 4:37-2(b) at the close of the
plaintiff's case, under Rule 4:40-1 at the close of evidence, or
under Rule 4:40-2(b) after the verdict, namely: "[I]f, accepting
as true all the evidence which supports the position of the
party defending against the motion and according [that party]
the benefit of all inferences which can reasonably and
legitimately be deduced therefrom, reasonable minds could
differ, the motion must be denied . . . ." Verdicchio v. Ricca,
179 N.J. 1, 30 (2004) (citations omitted) (quoting Estate of
Roach v. TRW, Inc.,
164 N.J. 598, 612 (2000)). A judge is not
to consider "the worth, nature or extent (beyond a scintilla) of
the evidence," but only review "its existence, viewed most
favorably to the party opposing the motion." Dolson v.
55 N.J. 2, 5-6 (1969).
An appellate court must essentially adhere to the same
standard when reviewing the judge's order. Frugis v.
177 N.J. 250, 269 (2003). We review the ruling de
novo, using the same standard applied in the trial court. See
Turner v. Wong,
363 N.J. Super. 186, 198-99 (App. Div. 2003).
Although we defer to the trial court's feel for the evidence, we
owe no special deference to the trial court's interpretation of
the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
Guided by this standard, we address plaintiffs' argument
that the trial judge erred in granting defendants' motion for a
directed verdict. Plaintiffs contend the evidence at least
raised a fact issue as to whether defendants breached the duty
of care they owed plaintiff. Defendants argue the trial judge
correctly granted their motion for a directed verdict because
"the absence of a handrail down the center of the staircase –
the sole alleged dangerous condition – was open, obvious, and
known to [plaintiff]."
To establish a prima facie case of negligence, a plaintiff
must set forth evidence that: (1) the defendant owed him or her
a duty of care; (2) the defendant breached that duty; and (3)
the defendant's breach of duty proximately caused plaintiff
damages. See D'Alessandro v. Hartzel,
422 N.J. Super. 575, 579
(App. Div. 2011). The traditional approach to determining the
duty of a landowner in a negligence case is dependent on whether
the plaintiff is an invitee, licensee, or trespasser. Hopkins
v. Fox & Lazo Realtors,
132 N.J. 426, 433 (1993) (citation
omitted). In Hopkins, our Supreme Court stated that a premises
liability analysis should no longer depend exclusively on those
categorizations, but focus also on "whether in light of the
actual relationship between the parties under all of the
surrounding circumstances the . . . duty to exercise reasonable
care . . . is fair and just." Id. at 438. The inquiry should
be fact-sensitive and consider "the relationship of the parties,
the nature of the attendant risk, the opportunity and ability to
exercise care, and the public interest in the proposed
solution." Id. at 439 (citation omitted).
While the Court in Hopkins appeared to reject the
traditional common law analysis of whether the plaintiff is an
invitee, licensee, or trespasser, the Court later clarified that
these categories continue to inform the duty analysis and "are a
shorthand, in well-established classes of cases, for the duty
analysis." Rowe v. Mazel Thirty, LLC,
209 N.J. 35, 45 (2012).
These shorthand categories, and their attendant standards of
care, represent the application of the same four factors Hopkins
considers; however, they allow the court to curtail the "full
duty analysis" in cases where the injured party "falls squarely"
into one of the categories. Id. at 44-45. Only in the cases
where a plaintiff does not fit into the common law categories
must a court perform the full duty analysis described in
Hopkins. Estate of Desir ex rel. Estiverne v. Vertus,
303, 317 (2013) (citation omitted).
The "common law classifications bear with them established
duties on a sliding scale; 'as the legal status of the visitor
improves, the possessor of land owes him [or her] more of an
obligation of protection.'" Rowe,
209 N.J. at 43-44 (quoting
Prosser and Keeton on Torts § 58, at 393 (5th ed. 1984)).
Therefore, "[t]he duty of care owed to a [licensee] is greater
than that owed to a trespasser, but less than that owed to a
business visitor." Parks v. Rogers,
176 N.J. 491, 497 (2003).
As the Court summarized in Rowe,
The duty owed to a trespasser is relatively
slight. A landowner, under most
circumstances, has a duty to warn
trespassers only of artificial conditions on
the property that pose a risk of death or
serious bodily harm to a trespasser. To the
social guest or licensee, the landowner owes
a greater degree of care. Although the
owner does not have a duty actually to
discover latent defects when dealing with
licensees, the owner must warn a social
guest of any dangerous conditions of which
the owner had actual knowledge and of which
the guest is unaware.
Only to the invitee or business guest does a
landowner owe a duty of reasonable care to
guard against any dangerous conditions on
his or her property that the owner either
knows about or should have discovered. That
standard of care encompasses the duty to
conduct a reasonable inspection to discover
latent dangerous conditions.
209 N.J. at 44 (quoting Hopkins,
at 434) (internal citations omitted).]
Statutes are evidence of a defendant's duty of care. Eaton
119 N.J. 628, 642 (1990). In Eaton, our Supreme Court
addressed the issue of whether a violation of
the careless driving statute, constituted negligence or merely
evidence of negligence. Id. at 632. In determining that proof
N.J.S.A. 39:4-97 violation established negligence itself,
the Court held that the very language of the careless driving
statute prohibited negligent driving. Id. at 643. Therefore,
anyone violating the statute by driving carelessly is, by
definition, negligent because negligence is defined as the
absence of due care. Dolson,
55 N.J. at 10-11.
The Court in Eaton noted, however, that rarely will a
violation of a statute establish negligence per se. The Court
Ordinarily, the determination that a party
has violated a statutory duty of care is not
conclusive on the issue of negligence, it is
a circumstance which the jury should
consider in assessing liability. . . . The
reason is that statutes rarely define a
standard of conduct in the language of
common-law negligence. Hence, proof of a
bare violation of a statutory duty
ordinarily is not the same as proof of
119 N.J. at 642 (internal citations
"If a 'plaintiff does not fall within the class of persons
for whose benefit the statute was enacted,' such statute is 'not
applicable either as evidence of a duty or as evidence of
negligence arising from a breach of such alleged duty.'"
Badalamenti v. Simpkiss,
422 N.J. Super. 86, 101-02 (App. Div.
2011) (quoting Fortugno Realty Co. v. Schiavone-Bonomo Corp.,
39 N.J. 382, 393 (1963)).
In this case, plaintiff clearly falls within the class of
persons for whose benefit the statute was enacted. Pursuant to
the Act, the Association here had the responsibility for "[t]he
maintenance, repair, replacement, cleaning, and sanitation of
the common elements."
N.J.S.A. 46:8B-14(a). As our Supreme
Court previously recognized, "The most significant
responsibility of an association is the management and
maintenance of the common areas of the condominium complex."
Thanasoulis v. Winston Towers 200 Ass'n,
110 N.J. 650, 656-57
(1988). In addition, this responsibility belongs exclusively to
the Association because the Act statutorily prohibits unit
owners from repairing or altering the common elements.
The Act specifically states that a condominium
"association, acting through its officers or governing board,
shall be responsible for the performance of the following
duties, the costs of which shall be common expenses: (a) The
maintenance, repair, replacement, cleaning and sanitation of the
common elements." N.J.S.A. 46:8B-14. In addition, a
condominium "association provided for by the master deed shall
be responsible for the administration and management of the
condominium and condominium property, including but not limited
to the conduct of all activities of common interest to the unit
Amicus New Jersey Association of Justice reminds us that
the Association could have adopted a by-law immunizing it
against negligence actions by unit owners.
13(a). Thus, as the Court noted in Qian v. Toll Bros.,
124, 127 (2015), the Legislature was aware that unit owners
might sue condominium associations for accidents occurring in
the common areas. In fact, the Act requires condominium
associations to maintain liability insurance for personal
injuries occurring due to accidents in the common areas.
We do not view plaintiff's status as a licensee or an
invitee as the controlling issue. Instead, a statute
establishes the Association's duty to plaintiff. Specifically,
N.J.S.A. 46:8B-14(a) states that a condominium association shall
be responsible for the performance of "the maintenance, repair,
replacement, cleaning and sanitation of the common elements."
Moreover, our Supreme Court has held that a condominium
association "has a statutory obligation to manage the common
elements . . . ." Qian,
223 N.J. at 127. We further note the
Hotel and Multiple Dwelling regulations also require a center
handrail for stairways of this width. N.J.A.C. 5:10-7.7(a)(1).
Based upon our review of the record and applicable law, we
conclude the Association had a duty to the unit owners to
maintain the stairs, and that included a duty to replace the
missing center handrail. Although the absence of a center
handrail was obvious and not hidden, the Association and
Townsmen were in a better position to know that the absence of a
center handrail presented a safety issue and the need to correct
it. Presumably, one of the reasons for the requirement of a
center handrail on a wide staircase is because pedestrians will
naturally tend to walk down the middle of the staircase,
especially if a door opens onto the middle of the staircase;
thus, without a center handrail, they have nothing to grasp if
they should lose their balance. For this reason, the
obviousness of the condition does not necessarily preclude
Accordingly, we hold the Act establishes a duty of care
that the Association owed to plaintiff. The testimony from
plaintiff's expert fully supported their contention that
defendants owed plaintiff a duty of care, they breached that
duty, and their breach constituted a proximate cause of
plaintiff's injuries. Whether the Association and Townsmen
fulfilled the duty of care owed to plaintiff under the facts of
this case remains a question for the jury.
Reversed and remanded. We do not retain jurisdiction.