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Donohue v. Polozzo

A-1853-08T3 (N.J. Super. App. Div. 2009) (Unpublished)

LANDLORD-TENANT; LANDLORD LIABILITY — Despite the questioning of the continued vitality of the fraudulent concealment test, especially for short term leases, New Jersey courts have never found that a landlord owes a tenant a duty of care where the tenant was aware before an accident of the dangerous condition causing the accident.

A tenant leasing a single-family house was injured when, after consuming three or four glasses of wine, she fell on a basement stairway. At the time of the accident, the stairway had no handrail. Prior to leasing the premises, the owners obtained an application for a certificate of occupancy. The application, which they failed to fill out, noted a requirement that handrails be installed when there was a staircase with more than four risers or stairs were more than thirty inches in height. They also failed, as required by local ordinances, to register the house as a rental property or have the house inspected by the municipality. The tenant used the basement stairs daily. At no time during the more than ten month period before the time she fell, did Tenant complain to the owners about the lack of a handrail. She sued the owners claiming they were negligent in not installing a handrail and should have warned her of the dangerous condition of the staircase. She emphasized that the dangerous condition arose prior to her taking possession and also that the landlord failed to maintain the stairs in accordance with code requirements. The owners responded that they owed no duty of care to the tenant since they had given her exclusive dominion and control over the leased premises and because the supposed dangerous condition was not concealed.

The lower court dismissed the suit, finding that the landlord had breached no duty to the tenant in failing to warn her or failing to correct the dangerous condition. It concluded that the alleged defect was patent and obvious to the tenant who had occupied the premises for over ten months and had regularly used the basement stairs.

The tenant appealed, but the Appellate Division affirmed for the same reasons as set forth by the lower court. It noted that the lower court found no proof that the owners had “fraudulently concealed” the absence of a handrail. Thus, the tenant could not establish a breach of duty on the part of the landlord. The Court rejected the tenant’s argument that the Court reject the “fraudulent concealment” test as outdated and not in harmony with the safety-oriented and compensatory principles of modern tort law. Despite its recognition that the continued vitality of the “fraudulent concealment” test has been questioned, especially for short term leases, the Court had never found that a landlord owed a tenant a duty of care where the tenant was aware before the accident of the dangerous condition. And, it pointed out this was true even where a landlord had violated building code requirements. Here, it concluded that this particular tenant’s awareness of the particular dangerous condition and the fact that the condition was a patent, not a latent condition precluded recovery.


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