                                NOT FOR PUBLICATION WITHOUT THE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-0160-18T2

MARY GIRALDI,

          Plaintiff-Appellant,

v.

MICHAEL CERVINI and
SUSAN CERVINI,

     Defendants-Respondents.
_____________________________

                    Submitted September 23, 2019 - Decided October 24, 2019

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-3109-16.

                    Apicelli & Costanzo, attorneys for appellant (Nicholas
                    C. Apicelli, on the brief).

                    Garrett L. Joest, III, attorney for respondents.

PER CURIAM

          Plaintiff, Mary Giraldi, appeals from the trial court's order granting

summary judgment to defendants, Michael and Susan Cervini, dismissing
plaintiff's personal injury lawsuit with prejudice. Plaintiff leased a single-family

home from defendants in 2012. After living in the rented house for four years,

she caught her foot in a gap between the boards of a tread on the front porch

steps, which caused her to fall and injure herself. The trial court ruled that

defendants did not owe a duty to plaintiff because defendants had done nothing

to conceal the gap and plaintiff was aware of the steps' condition. We affirm

the grant of summary judgment based upon the trial court's well-reasoned

written opinion. Viewing the discovery record in the light most favorable to

plaintiff, even assuming that the crack in the stair tread was a dangerous

condition, it was not a hidden or latent defect of which plaintiff was unaware.

Accordingly, as a matter of law, defendants owed no legal duty to plaintiff with

respect to the condition of the steps.

                                         I.

      On August 23, 2012, plaintiff entered into a month-to-month residential

rental agreement with defendants. Plaintiff testified at her deposition that there

was a half-inch wide crack in one of the stair treads and that this gap was there

when she moved in. Plaintiff informed defendants of a possible defect in the

front porch steps shortly after renting the home.         Plaintiff indicated that

defendants did not perform the requested step repair while she lived in the house.


                                                                            A-0160-18T2
                                              2
      On August 23, 2016, at 11:30 p.m., plaintiff descended from the porch and

caught her right foot in the gap in the stair tread, causing her to lose her balance

and fall to the ground. On November 22, 2016, she filed a civil complaint

asserting negligence and failure to warn of a hazardous condition on the rented

property. In their answer to the complaint, defendants denied the allegations

and raised a number of defenses, including contributory negligence, that no

warranties existed, and that defendants owed no legal duty to plaintiff.

      After the parties completed discovery, defendants moved for summary

judgment.     On August 8, 2018, the judge granted defendants' motion for

summary judgment, dismissing plaintiff's complaint with prejudice.

                                      II.

      We review the grant of summary judgment de novo, viewing the evidence

in the discovery record in the light most favorable to the non-moving party. Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 524 (1995). Summary judgment

should be granted only when the moving party is entitled to judgment as a matter

of law. Id. at 529. A moving party is entitled to judgment as a matter of law

when the evidence is so one-sided that it does not require submission to a jury.

Id. at 529.




                                                                            A-0160-18T2
                                            3
      The first step in a negligence action is to determine whether the defendant

owed a duty to the plaintiff. Carvalho v. Toll Bros. & Developers, 278 N.J.

Super. 451, 457 (App. Div. 1995).      Determining whether or not a duty exists is

a question of law, and therefore must be decided by a judge and not by a jury.

Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).

      At common law, a landlord was not responsible for harm caused by a

dangerous condition 1 once the lessee took possession of the property. Szeles v.

Vena, 321 N.J. Super. 601, 605 (App. Div. 1999) (citing Restatement (Second)

of Torts § 356 (Am. Law Inst. 1965)). Over time, courts have modified that

general rule so that in certain circumstances, a landlord can be liable for injuries

resulting from a dangerous condition on leased premises.                Ibid. (citing

Restatement (Second) of Torts §§ 357-362 (Am. Law Inst. 1965)). Although

the law governing the scope of duty in landlord-tenant negligence cases has


1
  In order to establish a duty in a failure to warn case, a plaintiff must first prove
that the condition complained of is dangerous or involves an unreasonable risk
of harm. See D'Alessandro v. Hartzel, 422 N.J. Super. 575, 580 (App. Div.
2011) (explaining that plaintiff failed to offer proof that the condition was
dangerous or involved an unreasonable risk of harm). We need not address
whether there was a material dispute of fact concerning the dangerousness of
the porch steps, however, because even assuming that the half-inch wide crack
constitutes a dangerous condition, "liability is still precluded if plaintiff knew
or had reason to know of the risk involved." Id. at 581 (citing Reyes v. Egner,
404 N.J. Super. 433, 456 (App. Div. 2009)).


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                                          4
evolved, and although it may no longer be necessary in all cases for a plaintiff

to prove that the landlord actively concealed a dangerous condition, the critical

inquiry that remains is whether the lessee was aware of the dangerous condition

that caused injury.

      Our decision in Patton v. Texas Company has long served as a benchmark

for determining landlord liability in negligence actions brought by tenants. 13

N.J. Super. 42 (App. Div. 1951). The facts in Patton are very similar to the

circumstances in the present case. In Patton, the plaintiff sued the defendant

landlord for an injury sustained during a fall while walking down the front steps.

Id. at 44. The tenant had previously asked the landlord to repair the step, but

the landlord was under no contractual obligation to do so and refused . Id. at 45-

46. Then-Judge William Brennan found that "[a]s the defect was not latent, the

landlord is not liable in the circumstances of this case to the tenants' invitee for

injuries suffered on the premises by reason of the defect." Id. at 46. The court

explained the general rule:

            that upon the letting of a house and lot there is no
            implied warranty or condition that the premises are fit
            and suitable for the use to which the lessee proposes to
            devote them and the landlord is therefore under no
            liability for injuries sustained by the tenant or the
            tenant's invitee by reason of the ruinous condition of



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                                         5
            the demised premises unless there has been fraudulent
            concealment of a latent defect. 2

            [Id. at 47.]

      In Szeles, we considered whether the rule announced in Patton remained

good law in view of a series of rent abatement cases that held that residential

leases carry an implied warranty or covenant of habitability. 3 The plaintiff in

that case had lived in the rented house for three years before injuring himself

when he fell on a loose brick on an exterior staircase of the single-family

residence. Szeles, 321 N.J. at 602-03. In determining the legal principles that

applied, we recognized that there had been "obvious inroads" to the Patton rule,

"particularly involving multi-family dwellings."      Id. at 606. Despite those

inroads, we applied the general rule of Patton and held that the landlord was not




2
  A latent defect is defined as one "not known or reasonably discoverable."
Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 53 (App. Div. 1973). A
patent defect is one that is clear and obvious. Szeles, 321 N.J. Super. at 607.
3
  See Marini v. Ireland, 56 N.J. 130, 144, 146 (1970) (concluding a residential
lease includes an implied warranty or covenant of habitability, and costs
incurred by tenant to repair necessaries can be deducted from tenant's rent, so
long as tenant provides timely notice to landlord of the necessary repair); Berzito
v. Gambino, 63 N.J. 460, 467-68 (1973) (reasoning a tenant's covenant to pay
rent is separate from a landlord's covenant to maintain habitable premises, and
thus in an action brought by a landlord for a tenant's failure to pay rent, a tenant
can raise a defense of landlord's failure to maintain habitable premises).
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                                         6
liable to the plaintiff, noting "[t]his was clearly not a concealed condition." Id.

at 607.

      More recently, in Reyes, the trial court granted the defendants' summary

judgment motion after finding that the plaintiffs failed to prove that the lessors

actively or fraudulently concealed the allegedly dangerous condition. 404 N.J.

Super. at 438.     On appeal, we questioned the "fraudulent concealment"

requirement expressed in Patton, noting that "we hesitate to continue to impose

upon plaintiffs an inflexible doctrinal requirement of proving the lessor's

'fraudulent concealment' of a dangerous condition." Id. at 459.

      We concluded that this requirement was inapposite in the particular

circumstances of the case. Reyes involved the rental of a summer beach house

at the Jersey Shore for a two-week period straddling the Labor Day holiday. Id.

at 438-39. In contrast, in Patton the plaintiff had been living in the rented

premises for a few years on a month-to-month lease. 13 N.J. Super at 44. We

thus distinguished Patton, concluding that a tenant of such a short-term lease

likely has no interest in doing a thorough pre-occupation inspection. Reyes, 404

N.J. Super. at 456, 460. On that basis, we concluded that the discovery record,

viewed in a light most favorable to the plaintiffs, raised genuine issues whether




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                                        7
a vacationing lessee would have reasonably noticed the dangerous condition. Id.

at 461.

      In the present case, in contrast to Reyes, and just as in Patton and Szeles,

plaintiff lived in the rented house for years. Although we criticized, if not

abrogated, the fraudulent concealment requirement, we did not suggest in Reyes

that a landlord is liable to a tenant for a dangerous condition that the tenant was

actually aware of.    Id. at 459. To the contrary, we embraced the Second

Restatement of Torts, which expressly accounts for whether the lessee knows of

the condition or the risk involved. Id. at 459-60. Specifically, we explained that

            [W]e hold that the lessor’s duty should be defined
            consistent with the precepts of Section 358 of the
            Second Restatement. As we have noted, that provision
            permits liability, even in the absence of a lessor’s
            concealment, if the plaintiff demonstrates that the
            lessor has failed to disclose a condition “which involves
            unreasonable risk of physical harm to persons on the
            land” if "(a) the lessee does not know or have reason to
            know of the condition or 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.”

            [Id. at 456 (emphasis added) (quoting Restatement
            (Second) of Torts § 358 (Am. Law Inst. 1965)).]




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                                        8
        Plaintiff also relies on Model Jury Charge 5.20C as a basis for establishing

a legal duty to inform a lessee of a dangerous condition. 4         This model jury

charge is unavailing to plaintiff, however, because that jury instruction clearly

explains that a landlord is not liable unless the tenant is “unaware of the

condition prior to the occurrence of the harm or did not realize the risk creat ed




4
    The model jury charge plaintiff relies on provides in pertinent part:

              A.    Residential Premises

              When a landlord rents (leases) a home to another,
              he/she has a duty to inform that person of any (natural,
              artificial, latent — hidden) condition (or defect) that
              involves an unreasonable risk of bodily harm to other
              persons lawfully upon the premises. If he/she fails to
              disclose such condition, he/she is subject to liability for
              the harm that such condition caused, provided that:

              A)    The tenant was unaware of the condition prior to the
                    occurrence of the harm or did not realize the risk
                    created by the condition;
              B)    The condition and risk were known to the landlord or
                    reasonably discoverable by him/her, and
              C)    The landlord had reason to believe that the person to
                    whom he/she rented the premises would not discover
                    the condition or realize the risk created by the
                    condition.
              [Model Jury Charges (Civil), 5.20C, "Duty of Owner to
              Tenant Leasing Entire Premises and to Others on
              Premises" (approved May 1977).]
                                                                            A-0160-18T2
                                          9
by the condition.”     Model Jury Charges (Civil), 5.20C, "Duty of Owner to

Tenant Leasing Entire Premises and to Others on Premises" (approved May

1977).

      As the trial court noted in the written opinion, plaintiff testified at her

deposition that the gap existed when she moved in four years before her fall.

The trial court also found, based on the photograph attached to plaintiff's expert's

report, that the gap was obvious. Accordingly, even when viewing the evidence

in a light most favorable to plaintiff, the record clearly establishes that plaintiff

was aware of the crack.

      Plaintiff nonetheless asserts that it was "impossible…to have realized the

seriousness of the hole in the porch steps," and that she "could clearly not be

aware of the width and seriousness of the hole between the step treads." Those

contentions are nothing more than bare assertions and are simply implausible.

Having used the front steps over the course of four years, plaintiff is hard pressed

to argue that it was impossible for her to appreciate the seriousness of the gap,

and at the same time argue that both the condition and the risk were known to

the landlords or were reasonably discoverable by them, as required by the model

jury charge she relies on. See also Reyes, 404 N.J. Super at 456 (quoting Section

358 the Second Restatement of Torts for the prerequisite to liability that the


                                                                             A-0160-18T2
                                        10
"lessor knows or has reason to know of the condition, and realizes or should

realize the risk involved").

                                     III.

      In sum, reviewing the trial court's order de novo, and applying the same

summary judgment standard as it did, we discern no genuine issue with respect

to the duty defendants owed to plaintiff. See Henry v. N.J. Dep't of Human

Servs., 204 N.J. 320, 330 (2010) (explaining appellate courts use the same

standard of review that a trial court utilizes (de novo) and do not accord special

deference to the trial court rulings (citing Manalapan Realty, L.P. v. Manalapan

Twp. Comm., 140 N.J. 366, 378 (1995))). We conclude, as did the trial court,

that plaintiff was aware of the condition of the stairs and the risk of harm posed

by that condition before the accident, and therefore, defendants are entitled to

judgment as a matter of law. Brill, 142 N.J. at 528-29; R. 4:46-2.

      Affirmed.




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