DAWN WRIGHT v. NESAR AHMED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5851-08T35851-08T3

DAWN WRIGHT and

GLENN WRIGHT, w/h,

Plaintiffs-Appellants,

v.

NESAR AHMED and

SHAHEED AHMED, h/w,

Defendants-Respondents.

_____________________________

Argued April 19, 2010 - Decided April 28, 2010

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1207-08.

Jennifer G. D'Souza argued the cause for appellants (Lowenthal & Abrams, P.C., attorneys; Ms. D'Souza, on the brief).

Alexa J. Nasta argued the cause for respondents (Green, Lundgren & Ryan, P.C., attorneys; Ms. Nasta, on the brief).

PER CURIAM

Plaintiffs Dawn and Glenn Wright appeal from a trial court order dated June 26, 2009, granting summary judgment dismissing their personal injury claim against defendants Nesar and Shaheed Ahmed. We affirm.

I

The following undisputed facts are drawn from the motion record. Defendants own a single-family home in Willingboro, New Jersey, which they have leased to various tenants since 1989. On April 19, 2007, the Wrights and the Ahmeds signed a lease creating a month-to-month tenancy beginning April 28, 2007. Approximately three years before plaintiffs moved in, defendants hired a tree service to remove several trees from the backyard. Nesar Ahmed told the service to cut the trees "down to the ground level completely." He visually inspected the ground after the trees were removed, and "didn't see anything hanging out."

According to plaintiffs' lease, "[p]rior to beginning the lease, the Tenant shall inspect the rental Premises and provide the Landlord a written list of all defective and damaged items." The lease also required the tenants to "be responsible for maintaining the lawn, shrubs, weeding, trees, and for removing leaves." In his deposition, Nesar stated that he had mowed the lawn approximately one week before the plaintiffs moved in. Although plaintiffs took possession of the property on April 28, 2007, they did not inspect the back yard at that time, and they provided no evidence as to the condition of the yard when they moved in. Further, although they were responsible for cutting the grass, they did not do so for about three weeks after moving in.

On the morning of May 18, 2007, Glenn Wright mowed the lawn on the property for the first time, using a gas powered lawn mower. Dawn Wright was not in the back yard while Glenn was mowing the lawn. After he cut the grass, Glenn told Dawn that there were tree roots in the yard that had prevented him from mowing parts of the grass in the backyard. Because it had not been mowed, the grass was high in the areas near the tree roots.

Later that day, Dawn entered the back yard for the first time. She kicked a ball that was lying in the grass, and chased it down a slope in the yard. Dawn kicked the ball back up the slope and ran toward it, "coming up fast." As she ran up the slope, she was looking forward at the ball. She ran through an area with high grass. Dawn admitted that, despite knowing that at least a tree root would be protruding from the ground, she ran through the uncut area of grass because her "eye was on the ball." According to Dawn's deposition testimony, her foot "got caught" in a hole in a tree stump, and she injured her leg, ankle, and knee. The record provided to us does not contain a specific description or photograph of the tree stump. Nor did plaintiffs serve an expert report.

II

Our review of a trial court's grant of summary judgment is de novo, employing the standard set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), certif. denied, 154 N.J. 608 (1998). Having reviewed the record, we conclude that there were no material facts in dispute and summary judgment was properly granted.

Relying on the Restatement (Second) of Torts 358 (1965), plaintiffs urge that defendants "owed a duty to their new tenants, because they removed the trees from the backyard but allowed the tree stumps to remain and the grass to grow above the stumps." Section 358 provides, in relevant 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 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.

To support their argument that the "lessor's duty should be defined consistent with the precepts of Section 358," the plaintiffs rely on Faber v. Creswick, 31 N.J. 234 (1959), and our recent decision in Reyes v. Egner, 404 N.J. Super. 433 (App. Div. 2009), aff'd by a divided court, ___ N.J. ___, (2010). We conclude that even if the Restatement standard applies here, summary judgment was appropriately granted.

In Faber, the Court adopted the rule 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 of 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.

[Faber, supra, 31 N.J. at 242.]

There, the landlord, undertaking a "do-it-yourself" construction project, had created a dangerous condition by placing a sheet of plasterboard over a stairwell; he did not disclose the condition to the tenant. The tenant, having no reason to know that the plasterboard was not part of the floor, stepped on the plasterboard and fell through it when it gave way. Those facts presented a triable issue of negligence. Id. at 243.

In Reyes, the lessor of a summer vacation rental house had failed to alert the lessees of a seven-inch drop between a sliding glass door leading from a bedroom to an outside deck and the surface of the deck. The tenant's father tried to walk out onto the deck and fell due to the gap between the door and the deck. We acknowledged the traditional rule that a landlord who rents a single family house is not liable to the tenant except in very limited circumstances:

The established general rule in this State is that upon the letting of a house and lot there is no implied warranty or condition that the premises are fit and suitable for the use to which the lessee proposes to devote them and the landlord is therefore under no liability for injuries sustained by the tenant or the tenant's invitee by reason of the ruinous condition of the . . . premises unless there has been fraudulent concealment of a latent defect.

[Reyes, supra, 404 N.J. Super. at 450 (quoting Patton v. Texas Co., 13 N.J. Super. 42, 47 (App. Div.), certif. denied, 7 N.J. 348 (1951)).

See also Szeles v. Vena, 321 N.J. Super. 601, 607-08 (App. Div.), certif. denied, 162 N.J. Super. 129 (1999). However, we concluded that the less restrictive rule of the Restatement should apply in the context of a short-term summer rental. Reyes, supra, 404 N.J. Super. at 455 56. Our decision was largely based on our pragmatic recognition that unlike a long-term residential rental where the tenant is expected to inspect the house before occupying it, in a short-term vacation rental the tenant frequently has neither the time nor the opportunity to inspect the premises before moving in. Ibid.

Reyes is not on point here, because this was not a vacation rental. Moreover plaintiffs cannot meet the standards of the Restatement, because the landlord had no reason to believe plaintiffs would not see any tree stumps in the yard, and plaintiffs had "reason to know" of the stumps. Restatement, supra, at 358. Plaintiffs' lease required them to inspect the premises before moving in; they had the opportunity to inspect but did not. Further, there is no evidence that the landlord attempted to conceal the tree stump. To the contrary, the landlord mowed the lawn shortly before plaintiffs moved in, and they produced no proof that the stump was not plainly visible when they moved in.

Plaintiffs were obligated to mow the lawn after they moved in, but they did not do so for three weeks. Absent a description of the height of the stump, no jury could conclude that the stump was obscured by anything other than the grass that grew while plaintiffs were neglecting their obligation to mow the yard. Finally, Dawn Wright knew that there were tree-related tripping hazards in the yard before she entered it, because her husband had told her that he was unable to finish mowing due to protruding tree roots. On this factual record, summary judgment was properly granted.

Affirmed.

 

The plaintiffs in Reyes brought claims against the owners of their vacation rental house as well as the real estate broker who facilitated the rental. The Supreme Court "issued a limited grant of certification" to determine whether the duty owed by a real estate broker to the persons attending an open house, described in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448 (1993), extended to the "short-term lease of a summer rental facilitated through the services of a real estate agent." Reyes, supra, (slip op. at 10-11) (LeVecchia, J., concurring). The Court therefore did not address the landlord's duty to the tenant.

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