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Gokey v. Prokopy

A-1904-08T3 (N.J. Super. App. Div. 2009) (Unpublished)

LANDLORD-TENANT; LANDLORD’S LIABILITY — The common law generally absolves a landlord of a duty to protect its tenant from physical harm caused by a dangerous condition on a leased property, but there are exceptions to the general rule such as where the landlord knows of the dangerous condition and realizes the risk as it develops, but the tenant does not realize the same condition.

A tenant was injured when she fell down the stairs of her single-family home. The accident occurred nearly thirteen years after she took possession. The initial one-year lease was the only lease signed by the woman. The lease provided that she would do “repairs to the house with owner’s permission.” Apart from some minor improvements to the stairs (including the outdoor carpet installation on the steps) made by a cotenant, and ordinary removal of debris, ice and snow, no one did anything to repair, maintain or modify the stairway during the woman’s tenancy. Other than discussing the slipperiness of the steps prior to the installation of the carpeting, she did not complain to the landlord about the steps. About a year before the incident, the landlords also recommended that the tenant greet people at the foot of the stairway. After the accident, the tenant sued the landlord.

The lower court ruled in favor of the landlord. Despite testimony from tenant’s expert that the stairway was improperly designed, it ruled that the tenant failed to establish that the owners breached a duty of reasonable care to her.

The Appellate Division affirmed. It ruled that the tenant failed to establish a duty of reasonable care that the owners breached. It noted that the common law generally absolves a landlord of a duty to protect a tenant from physical harm caused by a dangerous condition on the property, but held there were exceptions to this rule. The Court then determined that none of these exceptions applied in the instant case. It found the dangerous condition was a ridge on one of the two top steps. It believed there was no evidence that would permit an inference that these ridges existed when the tenant originally took possession. In fact, it stated that testimony indicated that these ridges developed over the years due to a combination of factors, including the tenant-installed carpeting that trapped moisture. According to Section 358 of the Restatement (Second) of Torts, liability can be found only if the tenant can prove that the landlord had reason to know of the condition and realize the risk as it developed and the tenant does not realize that same condition. The Court concluded that the facts here did not permit such inference. It stated that the tenant and her cotenant installed the carpeting and used the stairway on a daily basis for more than a decade and were in a far better position to have “reason to know” of any danger than the landlord. Although the Court recognized that there was expert opinion that could permit a jury to conclude that the design of the handrail contributed to the severity of the fall, it stated that a jury could not rationally conclude that the tenant did not have “reason to know” of the condition after living in the home for thirteen years. Accordingly, there was no question for the jury relevant to the handrail. As to the lease itself, it found that the provisions permitting the landlord the right to enter the property for the purposes of examining or making repairs or alterations for the safety and preservation of the property could not be read to imply that the landlord had thus agreed to keep the premises in repair. Moreover, this lease expressly provided that the tenant would do “repairs to [the] house with owner permission.” The Court declared that this unambiguous provision negated any implication that the landlords assumed a duty to repair.

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