NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0160-18T2
MARY GIRALDI,
Plaintiff-Appellant,
v.
MICHAEL CERVINI and SUSAN CERVINI,
Defendants-Respondents. _____________________________
Submitted September 23, 2019 - Decided October 24, 2019
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3109-16.
Apicelli & Costanzo, attorneys for appellant (Nicholas C. Apicelli, on the brief).
Garrett L. Joest, III, attorney for respondents.
PER CURIAM
Plaintiff, Mary Giraldi, appeals from the trial court's order granting
summary judgment to defendants, Michael and Susan Cervini, dismissing plaintiff's personal injury lawsuit with prejudice. Plaintiff leased a single-family
home from defendants in 2012. After living in the rented house for four years,
she caught her foot in a gap between the boards of a tread on the front porch
steps, which caused her to fall and injure herself. The trial court ruled that
defendants did not owe a duty to plaintiff because defendants had done nothing
to conceal the gap and plaintiff was aware of the steps' condition. We affirm
the grant of summary judgment based upon the trial court's well-reasoned
written opinion. Viewing the discovery record in the light most favorable to
plaintiff, even assuming that the crack in the stair tread was a dangerous
condition, it was not a hidden or latent defect of which plaintiff was unaware.
Accordingly, as a matter of law, defendants owed no legal duty to plaintiff with
respect to the condition of the steps.
I.
On August 23, 2012, plaintiff entered into a month-to-month residential
rental agreement with defendants. Plaintiff testified at her deposition that there
was a half-inch wide crack in one of the stair treads and that this gap was there
when she moved in. Plaintiff informed defendants of a possible defect in the
front porch steps shortly after renting the home. Plaintiff indicated that
defendants did not perform the requested step repair while she lived in the house.
A-0160-18T2 2 On August 23, 2016, at 11:30 p.m., plaintiff descended from the porch and
caught her right foot in the gap in the stair tread, causing her to lose her balance
and fall to the ground. On November 22, 2016, she filed a civil complaint
asserting negligence and failure to warn of a hazardous condition on the rented
property. In their answer to the complaint, defendants denied the allegations
and raised a number of defenses, including contributory negligence, that no
warranties existed, and that defendants owed no legal duty to plaintiff.
After the parties completed discovery, defendants moved for summary
judgment. On August 8, 2018, the judge granted defendants' motion for
summary judgment, dismissing plaintiff's complaint with prejudice.
II.
We review the grant of summary judgment de novo, viewing the evidence
in the discovery record in the light most favorable to the non-moving party. Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 524 (1995). Summary judgment
should be granted only when the moving party is entitled to judgment as a matter
of law. Id. at 529. A moving party is entitled to judgment as a matter of law
when the evidence is so one-sided that it does not require submission to a jury.
Id. at 529.
A-0160-18T2 3 The first step in a negligence action is to determine whether the defendant
owed a duty to the plaintiff. Carvalho v. Toll Bros. & Developers, 278 N.J.
Super. 451, 457 (App. Div. 1995). Determining whether or not a duty exists is
a question of law, and therefore must be decided by a judge and not by a jury.
Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).
At common law, a landlord was not responsible for harm caused by a
dangerous condition 1 once the lessee took possession of the property. Szeles v.
Vena, 321 N.J. Super. 601, 605 (App. Div. 1999) (citing Restatement (Second)
of Torts § 356 (Am. Law Inst. 1965)). Over time, courts have modified that
general rule so that in certain circumstances, a landlord can be liable for injuries
resulting from a dangerous condition on leased premises. Ibid. (citing
Restatement (Second) of Torts §§ 357-362 (Am. Law Inst. 1965)). Although
the law governing the scope of duty in landlord-tenant negligence cases has
1 In order to establish a duty in a failure to warn case, a plaintiff must first prove that the condition complained of is dangerous or involves an unreasonable risk of harm. See D'Alessandro v. Hartzel, 422 N.J. Super. 575, 580 (App. Div. 2011) (explaining that plaintiff failed to offer proof that the condition was dangerous or involved an unreasonable risk of harm). We need not address whether there was a material dispute of fact concerning the dangerousness of the porch steps, however, because even assuming that the half-inch wide crack constitutes a dangerous condition, "liability is still precluded if plaintiff knew or had reason to know of the risk involved." Id. at 581 (citing Reyes v. Egner, 404 N.J. Super. 433, 456 (App. Div. 2009)).
A-0160-18T2 4 evolved, and although it may no longer be necessary in all cases for a plaintiff
to prove that the landlord actively concealed a dangerous condition, the critical
inquiry that remains is whether the lessee was aware of the dangerous condition
that caused injury.
Our decision in Patton v. Texas Company has long served as a benchmark
for determining landlord liability in negligence actions brought by tenants. 13
N.J. Super. 42 (App. Div. 1951). The facts in Patton are very similar to the
circumstances in the present case. In Patton, the plaintiff sued the defendant
landlord for an injury sustained during a fall while walking down the front steps.
Id. at 44. The tenant had previously asked the landlord to repair the step, but
the landlord was under no contractual obligation to do so and refused . Id. at 45-
46. Then-Judge William Brennan found that "[a]s the defect was not latent, the
landlord is not liable in the circumstances of this case to the tenants' invitee for
injuries suffered on the premises by reason of the defect." Id. at 46. The court
explained the general rule:
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
A-0160-18T2 5 the demised premises unless there has been fraudulent concealment of a latent defect. 2
[Id. at 47.]
In Szeles, we considered whether the rule announced in Patton remained
good law in view of a series of rent abatement cases that held that residential
leases carry an implied warranty or covenant of habitability. 3 The plaintiff in
that case had lived in the rented house for three years before injuring himself
when he fell on a loose brick on an exterior staircase of the single-family
residence. Szeles, 321 N.J. at 602-03. In determining the legal principles that
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0160-18T2
MARY GIRALDI,
Plaintiff-Appellant,
v.
MICHAEL CERVINI and SUSAN CERVINI,
Defendants-Respondents. _____________________________
Submitted September 23, 2019 - Decided October 24, 2019
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3109-16.
Apicelli & Costanzo, attorneys for appellant (Nicholas C. Apicelli, on the brief).
Garrett L. Joest, III, attorney for respondents.
PER CURIAM
Plaintiff, Mary Giraldi, appeals from the trial court's order granting
summary judgment to defendants, Michael and Susan Cervini, dismissing plaintiff's personal injury lawsuit with prejudice. Plaintiff leased a single-family
home from defendants in 2012. After living in the rented house for four years,
she caught her foot in a gap between the boards of a tread on the front porch
steps, which caused her to fall and injure herself. The trial court ruled that
defendants did not owe a duty to plaintiff because defendants had done nothing
to conceal the gap and plaintiff was aware of the steps' condition. We affirm
the grant of summary judgment based upon the trial court's well-reasoned
written opinion. Viewing the discovery record in the light most favorable to
plaintiff, even assuming that the crack in the stair tread was a dangerous
condition, it was not a hidden or latent defect of which plaintiff was unaware.
Accordingly, as a matter of law, defendants owed no legal duty to plaintiff with
respect to the condition of the steps.
I.
On August 23, 2012, plaintiff entered into a month-to-month residential
rental agreement with defendants. Plaintiff testified at her deposition that there
was a half-inch wide crack in one of the stair treads and that this gap was there
when she moved in. Plaintiff informed defendants of a possible defect in the
front porch steps shortly after renting the home. Plaintiff indicated that
defendants did not perform the requested step repair while she lived in the house.
A-0160-18T2 2 On August 23, 2016, at 11:30 p.m., plaintiff descended from the porch and
caught her right foot in the gap in the stair tread, causing her to lose her balance
and fall to the ground. On November 22, 2016, she filed a civil complaint
asserting negligence and failure to warn of a hazardous condition on the rented
property. In their answer to the complaint, defendants denied the allegations
and raised a number of defenses, including contributory negligence, that no
warranties existed, and that defendants owed no legal duty to plaintiff.
After the parties completed discovery, defendants moved for summary
judgment. On August 8, 2018, the judge granted defendants' motion for
summary judgment, dismissing plaintiff's complaint with prejudice.
II.
We review the grant of summary judgment de novo, viewing the evidence
in the discovery record in the light most favorable to the non-moving party. Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 524 (1995). Summary judgment
should be granted only when the moving party is entitled to judgment as a matter
of law. Id. at 529. A moving party is entitled to judgment as a matter of law
when the evidence is so one-sided that it does not require submission to a jury.
Id. at 529.
A-0160-18T2 3 The first step in a negligence action is to determine whether the defendant
owed a duty to the plaintiff. Carvalho v. Toll Bros. & Developers, 278 N.J.
Super. 451, 457 (App. Div. 1995). Determining whether or not a duty exists is
a question of law, and therefore must be decided by a judge and not by a jury.
Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).
At common law, a landlord was not responsible for harm caused by a
dangerous condition 1 once the lessee took possession of the property. Szeles v.
Vena, 321 N.J. Super. 601, 605 (App. Div. 1999) (citing Restatement (Second)
of Torts § 356 (Am. Law Inst. 1965)). Over time, courts have modified that
general rule so that in certain circumstances, a landlord can be liable for injuries
resulting from a dangerous condition on leased premises. Ibid. (citing
Restatement (Second) of Torts §§ 357-362 (Am. Law Inst. 1965)). Although
the law governing the scope of duty in landlord-tenant negligence cases has
1 In order to establish a duty in a failure to warn case, a plaintiff must first prove that the condition complained of is dangerous or involves an unreasonable risk of harm. See D'Alessandro v. Hartzel, 422 N.J. Super. 575, 580 (App. Div. 2011) (explaining that plaintiff failed to offer proof that the condition was dangerous or involved an unreasonable risk of harm). We need not address whether there was a material dispute of fact concerning the dangerousness of the porch steps, however, because even assuming that the half-inch wide crack constitutes a dangerous condition, "liability is still precluded if plaintiff knew or had reason to know of the risk involved." Id. at 581 (citing Reyes v. Egner, 404 N.J. Super. 433, 456 (App. Div. 2009)).
A-0160-18T2 4 evolved, and although it may no longer be necessary in all cases for a plaintiff
to prove that the landlord actively concealed a dangerous condition, the critical
inquiry that remains is whether the lessee was aware of the dangerous condition
that caused injury.
Our decision in Patton v. Texas Company has long served as a benchmark
for determining landlord liability in negligence actions brought by tenants. 13
N.J. Super. 42 (App. Div. 1951). The facts in Patton are very similar to the
circumstances in the present case. In Patton, the plaintiff sued the defendant
landlord for an injury sustained during a fall while walking down the front steps.
Id. at 44. The tenant had previously asked the landlord to repair the step, but
the landlord was under no contractual obligation to do so and refused . Id. at 45-
46. Then-Judge William Brennan found that "[a]s the defect was not latent, the
landlord is not liable in the circumstances of this case to the tenants' invitee for
injuries suffered on the premises by reason of the defect." Id. at 46. The court
explained the general rule:
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
A-0160-18T2 5 the demised premises unless there has been fraudulent concealment of a latent defect. 2
[Id. at 47.]
In Szeles, we considered whether the rule announced in Patton remained
good law in view of a series of rent abatement cases that held that residential
leases carry an implied warranty or covenant of habitability. 3 The plaintiff in
that case had lived in the rented house for three years before injuring himself
when he fell on a loose brick on an exterior staircase of the single-family
residence. Szeles, 321 N.J. at 602-03. In determining the legal principles that
applied, we recognized that there had been "obvious inroads" to the Patton rule,
"particularly involving multi-family dwellings." Id. at 606. Despite those
inroads, we applied the general rule of Patton and held that the landlord was not
2 A latent defect is defined as one "not known or reasonably discoverable." Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 53 (App. Div. 1973). A patent defect is one that is clear and obvious. Szeles, 321 N.J. Super. at 607. 3 See Marini v. Ireland, 56 N.J. 130, 144, 146 (1970) (concluding a residential lease includes an implied warranty or covenant of habitability, and costs incurred by tenant to repair necessaries can be deducted from tenant's rent, so long as tenant provides timely notice to landlord of the necessary repair); Berzito v. Gambino, 63 N.J. 460, 467-68 (1973) (reasoning a tenant's covenant to pay rent is separate from a landlord's covenant to maintain habitable premises, and thus in an action brought by a landlord for a tenant's failure to pay rent, a tenant can raise a defense of landlord's failure to maintain habitable premises). A-0160-18T2 6 liable to the plaintiff, noting "[t]his was clearly not a concealed condition." Id.
at 607.
More recently, in Reyes, the trial court granted the defendants' summary
judgment motion after finding that the plaintiffs failed to prove that the lessors
actively or fraudulently concealed the allegedly dangerous condition. 404 N.J.
Super. at 438. On appeal, we questioned the "fraudulent concealment"
requirement expressed in Patton, noting that "we hesitate to continue to impose
upon plaintiffs an inflexible doctrinal requirement of proving the lessor's
'fraudulent concealment' of a dangerous condition." Id. at 459.
We concluded that this requirement was inapposite in the particular
circumstances of the case. Reyes involved the rental of a summer beach house
at the Jersey Shore for a two-week period straddling the Labor Day holiday. Id.
at 438-39. In contrast, in Patton the plaintiff had been living in the rented
premises for a few years on a month-to-month lease. 13 N.J. Super at 44. We
thus distinguished Patton, concluding that a tenant of such a short-term lease
likely has no interest in doing a thorough pre-occupation inspection. Reyes, 404
N.J. Super. at 456, 460. On that basis, we concluded that the discovery record,
viewed in a light most favorable to the plaintiffs, raised genuine issues whether
A-0160-18T2 7 a vacationing lessee would have reasonably noticed the dangerous condition. Id.
at 461.
In the present case, in contrast to Reyes, and just as in Patton and Szeles,
plaintiff lived in the rented house for years. Although we criticized, if not
abrogated, the fraudulent concealment requirement, we did not suggest in Reyes
that a landlord is liable to a tenant for a dangerous condition that the tenant was
actually aware of. Id. at 459. To the contrary, we embraced the Second
Restatement of Torts, which expressly accounts for whether the lessee knows of
the condition or the risk involved. Id. at 459-60. Specifically, we explained that
[W]e hold that the lessor’s duty should be defined consistent with the precepts of Section 358 of the Second Restatement. As we have noted, that provision permits liability, even in the absence of a lessor’s concealment, if the plaintiff demonstrates that the lessor has failed to disclose a condition “which involves unreasonable risk of physical harm to persons on the land” if "(a) the lessee does not know or have reason to know of the condition or 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.”
[Id. at 456 (emphasis added) (quoting Restatement (Second) of Torts § 358 (Am. Law Inst. 1965)).]
A-0160-18T2 8 Plaintiff also relies on Model Jury Charge 5.20C as a basis for establishing
a legal duty to inform a lessee of a dangerous condition. 4 This model jury
charge is unavailing to plaintiff, however, because that jury instruction clearly
explains that a landlord is not liable unless the tenant is “unaware of the
condition prior to the occurrence of the harm or did not realize the risk creat ed
4 The model jury charge plaintiff relies on provides in pertinent part:
A. Residential Premises
When a landlord rents (leases) a home to another, he/she has a duty to inform that person of any (natural, artificial, latent — hidden) condition (or defect) that involves an unreasonable risk of bodily harm to other persons lawfully upon the premises. If he/she fails to disclose such condition, he/she is subject to liability for the harm that such condition caused, provided that:
A) The tenant was unaware of the condition prior to the occurrence of the harm or did not realize the risk created by the condition; B) The condition and risk were known to the landlord or reasonably discoverable by him/her, and C) The landlord had reason to believe that the person to whom he/she rented the premises would not discover the condition or realize the risk created by the condition. [Model Jury Charges (Civil), 5.20C, "Duty of Owner to Tenant Leasing Entire Premises and to Others on Premises" (approved May 1977).] A-0160-18T2 9 by the condition.” Model Jury Charges (Civil), 5.20C, "Duty of Owner to
Tenant Leasing Entire Premises and to Others on Premises" (approved May
1977).
As the trial court noted in the written opinion, plaintiff testified at her
deposition that the gap existed when she moved in four years before her fall.
The trial court also found, based on the photograph attached to plaintiff's expert's
report, that the gap was obvious. Accordingly, even when viewing the evidence
in a light most favorable to plaintiff, the record clearly establishes that plaintiff
was aware of the crack.
Plaintiff nonetheless asserts that it was "impossible…to have realized the
seriousness of the hole in the porch steps," and that she "could clearly not be
aware of the width and seriousness of the hole between the step treads." Those
contentions are nothing more than bare assertions and are simply implausible.
Having used the front steps over the course of four years, plaintiff is hard pressed
to argue that it was impossible for her to appreciate the seriousness of the gap,
and at the same time argue that both the condition and the risk were known to
the landlords or were reasonably discoverable by them, as required by the model
jury charge she relies on. See also Reyes, 404 N.J. Super at 456 (quoting Section
358 the Second Restatement of Torts for the prerequisite to liability that the
A-0160-18T2 10 "lessor knows or has reason to know of the condition, and realizes or should
realize the risk involved").
III.
In sum, reviewing the trial court's order de novo, and applying the same
summary judgment standard as it did, we discern no genuine issue with respect
to the duty defendants owed to plaintiff. See Henry v. N.J. Dep't of Human
Servs., 204 N.J. 320, 330 (2010) (explaining appellate courts use the same
standard of review that a trial court utilizes (de novo) and do not accord special
deference to the trial court rulings (citing Manalapan Realty, L.P. v. Manalapan
Twp. Comm., 140 N.J. 366, 378 (1995))). We conclude, as did the trial court,
that plaintiff was aware of the condition of the stairs and the risk of harm posed
by that condition before the accident, and therefore, defendants are entitled to
judgment as a matter of law. Brill, 142 N.J. at 528-29; R. 4:46-2.
Affirmed.
A-0160-18T2 11