SABRINA L. REAVES-HARRINGTON VS. THOMAS D. Â DIGUISEPPI(L-0333-14, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5094-15T3
SABRINA L. REAVES-HARRINGTON
and DEDRIA A. DOUGANS,
Plaintiffs-Appellants,
v.
THOMAS D. DIGUISEPPI,
Defendant-Respondent.
__________________________________________________
Argued October 3, 2017 – Decided November 6, 2017
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Docket No. L-0333-14.
Devesh Taskar argued the cause for appellants
(Law Offices of Robert I. Segal, attorneys;
Maria DeTitto, on the brief).
Deborah C. Halpern argued the cause for
respondent (Parker Young & Antinoff,
attorneys; Ms. Halpern, on the brief).
PER CURIAM
On the Fourth of July 2013, plaintiffs Sabrina L. Reaves-
Harrington and Dedria A. Dougans sat on the porch of the Bridgeton
home Dedria leased from defendant Thomas DiGuiseppi when a
triangular wooden piece (referred to in depositions as a scroll),
which was fixed to both a supporting pole and the porch roof,
became dislodged, fell, and struck Sabrina.1 Later, after Sabrina
was taken to a hospital, a wooden pole extending from the porch
to the underside of the porch roof (to which the scroll had been
attached) fell and struck Dedria. Because Dedria's long-term lease2
imposed no obligation on Thomas to inspect, maintain or repair,3
and because Thomas did not know or have reason to know of any
problems with the pieces of the porch that dislodged, we affirm
the summary judgment dismissing Dedria and Sabrina's suit.
1
We have appended a photograph, which was identified at Thomas's
deposition, depicting the porch's appearance shortly after the
July Fourth incident. The pole that fell and allegedly struck
Dedria was drawn in by Thomas at the deposition; it appears to the
right of the stairs that lead from ground level to the porch.
Thomas also circled on the photograph what he referred to as a
scroll.
2
She had leased the property since May 2011.
3
In his deposition, Thomas acknowledged he had made repairs to
the property in the past when a problem manifested. The contract,
however, does not expressly impose such a duty. And, despite
plaintiffs' argument to the contrary, the contract does not
preclude the tenant from maintaining or repairing the property
should the tenant observe a problem. The lease only prohibits the
tenant from "mak[ing] or suffer[ing] any alterations" to the
premises; this provision was uttered in the same sentence that
barred the tenant from using the property for "any . . . purpose
other than as a private dwelling" and should be interpreted in
that sense and not as a bar on the tenant's rights to make repairs
or maintain the property.
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The facts are undisputed, and the case poses a simple
question: whether the common law imposed a duty on Thomas, the
landlord, to inspect the leased property for latent defects. Or,
as the question is put by plaintiffs: does the doctrine of res
ipsa loquitur apply and impose liability on a landlord in these
circumstances? Much has been written on this subject that we need
not reiterate beyond providing for the reader a brief outline of
the current state of a landlord's common-law duties.
Despite plaintiffs' forceful arguments, the doctrine of res
ipsa loquitur has no application here. Justice Brennan, when he
sat in this court, wrote in Patton v. The Texas Co., 13 N.J. Super.
42, 47 (App. Div.), certif. denied, 7 N.J. 348 (1951), that a
landlord, who had leased a home and lot and had not contracted to
repair or maintain, was entitled to the reversal of a plaintiff's
verdict because the common law imposed on landlords no duty to
remedy a property defect absent a "fraudulent concealment of a
latent defect." We later recognized in Szeles v. Vena, 321 N.J.
Super. 601, 606 (App. Div. 1999), that Patton is consistent with
Restatement (Second) of Torts § 355 (1965), which declares that
"a lessor of land is not subject to liability for bodily harm
caused to [a] lessee or others upon the land . . . by any dangerous
condition which comes into existence after the lessee has taken
possession." The Second Restatement recognizes exceptions to this
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general rule that have no arguable application here, e.g.: where
the lessor contracts to repair, id., § 357; where the property is
leased for purposes involving public admission, id., § 359; where
parts of the land are controlled by the lessor, although the lessee
is entitled to their use, id., § 360; and where the lessor has
been negligent in making repairs, id., § 362. See Szeles, supra,
321 N.J. Super. at 606.4
The only exception to the Second Restatement's general rule
that we need to consider is that which imposes liability when a
landlord "knows or has reason to know" of the condition, "realizes
or should realize the risk involved," and "has reason to expect
that the lessee will not discover the condition or realize the
risk." Restatement (Second), supra, § 358(1)(b). These elements
of the exception, however, have not been demonstrated here.
There is no dispute that no one – neither Thomas nor Dedria
– was aware the pole or the scroll or both were in disrepair or
on the verge of becoming displaced. The only question, then, is
4
The implied covenant of habitability recognized in Marini v.
Ireland, 56 N.J. 130, 144 (1970), does not expand a landlord's
obligations in this circumstance. Szeles, supra, 321 N.J. Super.
at 607. That common-law concept, as well as others found in the
Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.2, relate to the
tenancy itself and not to claims asserted by persons injured by a
dangerous condition in the premises. See Dwyer v. Skyline Apts.,
Inc., 123 N.J. Super. 48, 55 (App. Div.), aff'd o.b., 63 N.J. 577
(1973).
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whether Thomas had reason to know of such a possibility.5 The
record is barren of any evidence to support such a contention and
the absence of any such evidence required entry of summary judgment
in Thomas's favor. We thus find insufficient merit in plaintiffs'
arguments to warrant further discussion in this opinion, R. 2:11-
3(e)(1)(E), except to add that we are mindful of our more recent
decisions in Meier v. D'Ambose, 419 N.J. Super. 439 (App. Div.),
certif. denied, 208 N.J. 370 (2011), and Reyes v. Egner, 404 N.J.
Super. 433 (App. Div. 2009), aff'd by a divided court on other
grounds, 201 N.J. 417 (2010), and are aware a superficial reading
of those decisions might suggest a different outcome.
In Meier, the panel concluded that a defendant-landlord was
not entitled to summary judgment where the plaintiff-tenant died
from smoke inhalation caused by the property's faulty furnace.
This decision, however, does not compel the same result here. The
Meier panel observed that administrative regulations regarding
chimneys, smokestacks, and other similar furnace components,
imposed on the landlord an independent duty to inspect the furnace,
419 N.J. Super. at 447-48, which he disregarded for the eight
years preceding entry into his lease with the decedent, id. at
451. The panel recognized that if the landlord complied with this
5
We assume for present purposes that neither plaintiff actively
dislodged the pole or scroll.
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independent duty he would likely have discovered the dangerous
condition. Id. at 449-51. In short, Meier represents an example
of when a tenant has sufficiently presented a triable issue about
whether a landlord had reason to know of a dangerous condition.
And Meier is distinguishable because that landlord's claim of lack
of knowledge was arguably unjustified (or could be rejected by a
jury) because of the landlord's affirmative duty – imposed not by
common law or contract but by regulation – to inspect the furnace.
Reyes is also distinguishable. Although suggesting "inroads"
have been made, 404 N.J. Super. at 454, toward the rejection of
Patton's "fraudulent concealment" requirement – an observation
with which we agree6 – Reyes otherwise distinguished our earlier
holdings in reversing the defendant-landlord's summary judgment
because the lease was a short-term, two-week rental, a circumstance
the panel found "fundamentally different from the multi-year
tenancies" in the other cases, Reyes, supra, 404 N.J. Super. at
455.
In adhering to our well-established, common-law principles
that bar the imposition of liability on a landlord in this
6
In other words, Patton's express holding seems to require that
a plaintiff show the landlord "fraudulently concealed" a defect.
Reyes suggests, and we agree, that adherence to the Second
Restatement has likely rendered unnecessary proof in a case like
this that a landlord "fraudulently" kept knowledge of a defect
from a tenant.
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circumstance absent proof the landlord knew or should have known
of the alleged dangerous condition, we affirm the summary judgment
entered here in Thomas's favor.
Affirmed.
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