Slip & Fall due to ice law
JEAN M. HUNTINGTON and CLIFFORD
JORGE CABRERADUARTE a/k/a
DOCKET NO. A-0965-10T2
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
Submitted July 5, 2011 - Decided
Before Judges Cuff and Fuentes.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No.
Flores Sternick Poosikian, attorneys for
appellant (Edwin Flores, of counsel;
Joseph P. Kreoll, on the brief).
Caruso Smith Edell Picini, attorneys for
respondents (Richard D. Picini, of counsel;
Jennifer L. Bocchi, on the brief).
August 10, 2011
Plaintiff Juan Gutierrez appeals from the order of the Law
Division granting defendants Jean M. and Clifford Huntington's
summary judgment motion and dismissing his personal injury cause
of action. We reverse and remand.
Plaintiff was injured when he slipped on ice and fell onto
the concrete patio abutting a single family house rented by
third-party defendant Jorge Cabrera. At the time of the
accident plaintiff was temporarily residing with Cabrera as his
guest. Plaintiff sued the Huntingtons, alleging that the
accident was caused by snow-covered ice that formed from water
that pooled around a clogged drain in a depressed section of the
patio. This drainage problem was exacerbated by the absence of
roof gutters, which permitted precipitation from the roof to
fall directly onto the patio. Plaintiff submitted a report from
an engineer who opined the conditions of the patio violated a
municipal ordinance that requires all premises to be graded to
prevent the accumulation of stagnant water.
Relying on Patton v. The Texas Co., 13 N.J. Super. 42 (App.
Div.), certif. denied, 7 N.J. 348 (1951), defendants moved for
summary judgment arguing that, as a residential landlord, they
are not liable for injuries sustained by a tenant or a tenant's
guest "unless there has been fraudulent concealment of a latent
defect." Id. at 47. In response, plaintiff urged the court to
rely on the standard established in Section 358 of the
Restatement (Second) of Torts (1965), which states:
(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
(a) the lessee does not know or have reason
to know of the condition or the risk
(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 vendee has had reasonable opportunity to
discover the condition and to take such
Plaintiff relied on Reyes v. Egner, 404 N.J. Super. 433,
448-55 (App. Div. 2009), aff'd by equally divided court on other
grounds, 201 N.J. 417 (2010), in which this court used Section
358 to determine the duty owed by a landlord to short-term
tenants of a vacation home and their guests. The dangerous
condition in Reyes involved an elevated deck and stairs which,
given the plaintiff's unfamiliarity with the residence's layout,
caused the plaintiff to fall and injure himself. Id. at 440-41.
The question before this court was whether the lessor and
the lessee had "reason to know" of a condition that "involves
unreasonable risk of physical harm." Id. at 461-62. Focusing
on the short duration of the rental, we declined to follow
Patton and held the defendant potentially liable. Ibid.
Writing for the panel, Judge Sabatino concluded that, in such
circumstances, the landowner's duties "should be defined
consistent with the precepts of Section 358" of the Restatement.
The short duration of the tenancy, however, was not the
only factor we considered in Reyes. Because the dangerous
condition created by the elevated deck was also a violation of
the construction codes, this factor could be considered by a
jury as "evidential if not conclusive" evidence of the
landlord's breach of the duty owed to the tenants. Id. at 458.
Here, the record shows the motion judge was sympathetic to
plaintiff's argument but considered himself bound by our
decision in Patton, which he viewed as a viable precedent even
after Reyes. The judge noted:
I would not at all be surprised if in the
next case an Appellate Court were to adopt
the full rule of the Restatement (Second)
Section 358. But they had not up to this
point and the rule is enunciated and 
Patton and Szeles1 does remain the rule in
this state. They're from . . . the
Appellate Division and this Court is bound
to follow it.
The court heard and decided defendants' summary judgment
motion on September 16, 2010. Approximately eight months
thereafter, we decided Meier v. D'Ambose, 419 N.J. Super. 439
(App. Div. 2011), in which we considered "whether the ownerlandlord
of a single-family residence had a duty to the tenant
to maintain, and thus periodically inspect, the furnace to
prevent a hazardous condition." Id. at 441.
In Meier, decedent's estate and heir sued the landlord for
negligence and wrongful death, alleging the tenant died from
smoke inhalation from a fire that may have been caused by a
defective gas-fired heater located in the crawl space of the
single-family dwelling. Id. at 442. The trial court in Meier
characterized the "deteriorated flue pipe" in the furnace that
1 Szeles v. Vena, 321 N.J. Super. 601 (App. Div.), certif.
denied, 162 N.J. 129 (1999), in which the plaintiff-tenant was
injured when he fell from an exterior staircase where a brick
had come loose. Plaintiff had not noticed the loose brick, and
he had not requested that the landlord repair the steps. Id. at
603-04. Relying on Patton, the panel in Szeles held that "where
plaintiff was in exclusive possession of the premises and the
condition of the brick step was not a condition that was known
to the landlord at the inception of the lease, or brought to the
landlord's attention, there is no basis to impose tort liability
on the landlord." Id. at 608.
caused the fire as a "latent defect" because the defendant had
no prior notice of its malfunction. Id. at 445.
Relying on Patton and Szeles, the trial court in Meier
granted the landlord's motion for summary judgment, holding "as
a matter of law that [the] defendant did not have a duty to make
periodic inspections of the furnace to discover any such defects
because [the tenant] was in sole possession of the premises."
Id. at 445-46. We reversed and remanded the matter for trial.
Id. at 446.
We began our premises liability analysis in Meier by
reaffirming the fact-specific, public policy principles
articulated by our Supreme Court in Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426 (1993):
To determine whether the owner of property
had a duty in particular circumstances to
the injured person, a court must examine
such factors as "the relationship of the
parties, the nature of the attendant risk,
the opportunity and ability to exercise
care, and the public interest in the
[Meier, supra, 419 N.J. Super. at 445,
quoting Hopkins, supra, 132 N.J. at 439.]
From this point, we reviewed the evolutionary trend in premises
liability law defining a landowner's duty consistent with the
precepts of Section 358 of the Restatement (Second) of Torts
(1965). Meier, supra, 419 N.J. Super. at 446-47, citing Reyes,
supra, 404 N.J. Super. at 448-55.2
With these principles as our guide, we now return to the
question presented in this appeal. At the time of this
accident, plaintiff had been living as the "guest" of thirdparty
defendant Cabrera for approximately two months. Cabrera
allowed plaintiff to share his home rent-free while plaintiff
searched for his own place to live.
Cabrera was defendants' tenant under a written lease that
began on July 27, 2004, and continued on a month-to-month basis.
The lease contained certain "terms and conditions." Of
relevance here, paragraph 5 required Cabrera to "keep and
maintain the premises in a clean and sanitary condition;"
paragraph 10 "reserves" defendants the right to enter the
premises "for the purpose of inspection, and whenever necessary
to make repairs and alterations." At his deposition, Cabrera
testified that he had a verbal agreement with defendants through
which he was responsible for removing the snow and ice from the
2 We also noted the Supreme Court's decision in Parks v. Rogers,
176 N.J. 491, 499 (2003), in which the Court looked to the
Restatement (Second) of Torts § 342 (1965), to determine a
homeowner's duty to protect an unsuspecting social guest from
dangers on the premises.
Here, plaintiff argues defendants have a duty to plaintiff
to maintain the premises they rented to Cabrera, including the
concrete patio abutting the house, free from dangerous
conditions. Plaintiff further argues that defendants' duty in
this respect is independent of and notwithstanding any verbal
agreement they may have had with Cabrera.
The alleged dangerous condition here is twofold. The
first is the defective drain, which permits water to pool and
freeze when the temperatures fall below the freezing point. The
second is the lack of gutters on the roof of the dwelling, which
exacerbates the drainage problem because it allows water to cast
down in the same area. In the opinion of plaintiff's liability
expert, both of these alleged defects are violations of local
municipal laws that set certain minimum standards of maintenance
for this kind of dwelling.
In our view, these are not latent defects. Both of these
defects are structural matters that are within the exclusive
control of the landlord. The structural defects remain the
responsibility of the landlord to remediate when they create a
dangerous condition on the property. These structural defects
do not fall within day-to-day maintenance of the property
properly assumed by the tenant. Although the record suggests
that the clogged drain and absence of gutters was a long9
standing problem, the record does not permit the motion judge to
find that the landlord had notice of the defects at or before
the time of the accident.
We are satisfied that the principles articulated in
Hopkins, Reyes, and Meier constitute the appropriate standard to
determine defendants' duty to plaintiff under these
circumstances. As we held in Meier:
The lessor . . . has a non-delegable duty of
care to third parties to avoid a hazardous
condition of his property. Whatever may be
the terms of a lease and the duties of
lessor and lessee as to each other, the
lessor cannot by virtue of the lease release
himself from potential liability to third
parties. In addition, the lessor benefits
in the long-term from maintaining the
property. He collects rent to fund
maintenance of the property, and he should
have the incentive and means to arrange
inspections to prevent hazardous conditions.
[Meier, supra, 419 N.J. Super. at 450
(internal citation omitted).]
Our standard of review from a trial court's order granting
a defendant summary judgment is plenary. We must independently
determine, without deference to the trial court's ruling,
whether disputed issues of fact exist for determination by a
jury. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.
Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608
(1998). We must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995); R. 4:46-2(c).
Plaintiff's expert's report contains sufficient evidence to
create a jury question as to whether defendants should be held
liable for plaintiff's injuries. By means of any reasonable
inspection, defendant should have discovered how the defective
drain, coupled with the absence of roof gutters, were causing
water to pool in the patio. Under Meier, defendants have a duty
to inspect this property to ensure it is free of these dangerous
conditions. If a jury were to find defendants negligently
failed to inspect and thereafter correct this dangerous
condition on the property, it could then determine whether such
negligence was a proximate cause of plaintiff's injuries and if
so, to what extent plaintiff's own conduct, as compared with
defendants' negligence, caused him to fall.
Reversed and remanded. We do not retain jurisdiction.