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Sunday, August 14, 2011

Slip & Fall due to ice law JUAN GUTIERREZ,

Slip & Fall due to ice law











Third-Party Defendant.


DOCKET NO. A-0965-10T2





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

2 A-0965-10T2

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

3 A-0965-10T2

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

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.

(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,

4 A-0965-10T2

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

5 A-0965-10T2

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.

6 A-0965-10T2

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

proposed solution."

[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

7 A-0965-10T2

(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.

8 A-0965-10T2

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

10 A-0965-10T2

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.