PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Parrillo and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-870-09.
Joel Wayne Garber argued the cause for appellant (Garber Law, attorneys; Mr. Garber, on the brief).
John Gerard Devlin argued the cause for respondents (Devlin Associates, P.C., attorneys; Mr. Devlin, on the brief).

Plaintiff Justine Garber, administratrix of the estate of decedent Leonard Long, appeals from the summary judgment dismissal of decedent's personal injury negligence cause of action against defendant Haddon Hills Associates, L.L.C., t/a Haddon Hills Apartments. For reasons that follow, we reverse.

The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Decedent was injured when he fell due to a deflection or depression in the floor of his apartment that developed at the foot of the staircase. At the time of the accident, decedent, along with his two sons, had been residing in the premises at defendant's Haddon Hills Apartment complex for about ten months, since June 1, 2007, following execution of a lease agreement with defendant on May 15, 2007. The lease included a provision titled, "LANDLORD'S WARRANTY OF HABITABILITY & NONLIABILITY IN CERTAIN INSTANCES", which read:

Landlord warrants the habitability of the premises. However, Landlord shall be exempt from any and all liability for any damage or injury to person or property caused by or due to the negligence of the Landlord. Tenant shall give to the Landlord prompt written notice of any accident to, or defects in, the premises, which defects shall be remedied by the Landlord with due diligence.

Landlord covenants and agrees with the Tenant that upon Tenant paying the rent and performing all of Tenant's covenants and conditions in the lease, Tenant shall peaceably and quietly have, hold and enjoy the premises for the term of the lease. However, Landlord shall have the right to enter the premises at all reasonable times for purposes of making ordinary or emergency repairs and maintenance and for purpose of showing the premises to prospective new Tenants during the last month of the lease.

When he moved into the apartment, decedent noticed a "slant" in the indoor flooring at the bottom of the stairs. He reported the condition to a maintenance worker employed by the apartment complex, who later informed decedent that he had reported the slant to management. Decedent also notified several people working in the front office of the condition, although he never filed a formal, written complaint. According to decedent, one of his sons also voiced concerns about the slant in the floor. Despite these complaints, defendant made no repairs or alterations to the floor.

Sometime after the accident on March 9, 2008, decedent retained registered architect and professional engineer John Hare to inspect the apartment. From the vantage point of the interior living room only, Hare discovered that the depression at the foot of the stairs was "sloping 1-3/4 inches in approximately three feet[,]" adding that any slope should not exceed 1/4 inch in any two-foot span. In his professional opinion, the slope of the floor was excessive — "more than 1/2 inch per foot[.]"

From the limited inspection and from information provided by decedent's son about the building being just recently treated for termites, Hare opined that "the floor at the stair has suffered structural damage from termites and could be structurally unsound and in danger of collapse." However, to confirm that finding, Hare had to inspect the floor supporting the stair to determine the cause of the excessive deflection in that area.

To that end, on February 19, 2010, Hare inspected the structural floor joists framing under the living room of decedent's first floor apartment and as originally opined, he found the wood joists and header at the exterior entrance stair to the unit to be suffering from severe termite and rot damage. In fact, the damage had been so severe that the "maintenance staff ha[d] installed temporary [4" by 4"] shoring to support the joists, although no repair attempt ha[d] [ever] been undertaken." The temporary shoring posts in the crawl space had been in place for ten years, and one of them had actually collapsed due to termite damage, while another sagged. According to Hare, "[t]he collapsed shoring in the crawl space readily explains the reason for the rapid development of the excessive slope of the floor. . . ." Thus, whenever someone stepped on that section of the floor, the floor deflected further under the weight of the individual. Hare described the condition: "[t]he problem was that this was a trap. Although [decedent] was aware of a slope . . . he was not aware that the floor was supported on shoring and that it had been severely damaged by termites. He was not aware that one of the shoring posts had collapsed." Hare concluded that these auxiliary temporary supports were not a proper termite repair and did not conform to the building code. He also suggested that the unit should be condemned.

Relying on Patton v. Texas Co., 13 N.J. Super. 42 (App. Div.), certif. denied, 7 N.J. 348 (1951), defendant moved for summary judgment arguing that, as a residential landlord, he is not liable for injuries sustained by a tenant "unless there has been fraudulent concealment of a latent defect." Id. at 47. The motion judge agreed, finding that defendant had no duty to protect against an obvious defect unless fraudulently concealed; decedent was aware of the defect and took precautions to avoid it by walking over it for almost a year; and decedent failed to provide written notice to defendant regarding the defect.

On appeal, plaintiff maintains that there is sufficient evidence to create a jury question as to whether defendant should be held liable for decedent's injuries. We agree.

Premises liability law has evolved since Patton to the point where courts now define a landowner's duty consistent with the public policy principles articulated by our Supreme Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993), and with the precepts of Section 358 of the Restatement (Second) of Torts (1965). Meier v. D'Ambose, 419 N.J. Super. 439, 446-47 (App. Div.), certif. denied, 208 N.J. 370 (2011). While at common law a landlord was not liable to his lessee for physical harm caused by a dangerous condition existing on the land when the lessee took possession, Szeles v. Vena, 321 N.J. Super. 601, 605 (App. Div.), certif. denied, 162 N.J. 129 (1999); Restatement (Second) of Torts § 356 (1965), "[o]ver time, the general rule was modified to make a landlord liable in certain circumstances for injuries resulting from dangerous conditions on leased premises." Szeles, supra, 321 N.J. Super. at 605; Restatement (Second) of Torts §§ 357-362 (1965). These sections of the Restatement set forth exceptions to the general rule, namely § 357 where the lessor contracts to repair; § 358 where the lessor knows of a dangerous condition on the property but fails to disclose it to the lessee; and § 362 where the lessor has been negligent in making repairs.

Apropos here is § 358, 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 precautions.
[(Emphasis added).]

This 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.
[Restatement, supra, § 358.]

In Meier, supra, we considered "whether the owner-landlord of a single-family residence had a duty to the tenant to maintain, and thus periodically inspect, the furnace to prevent a hazardous condition." 419 N.J. Super. at 441. There, 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 dwelling's crawl space. Id. at 442. Characterizing the "deteriorated flue pipe" in the furnace that caused the fire as a "latent defect" because the defendant had no prior notice of its malfunction, id. at 445, and 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, holding:

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.
[Id. at 450 (citation omitted).]

The question to be resolved therefore on summary judgment in this case was whether there were disputed issues of fact relative to whether the lessor and the lessee had "reason to know" of a condition that "involves unreasonable risk of physical harm." In this regard, 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 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, supra, 142 N.J. at 540.

Plaintiff's expert's report contains sufficient evidence to create a jury question as to whether defendant should be held liable for decedent's injuries. As a threshold matter, the floor defects may be considered structural matters within the exclusive control of the landlord and outside the scope of any day-to-day maintenance assumed by the tenant. According to Hare's expert report, the defective floor resulted from termite damage over ten years ago, which the defendant improperly remedied with temporary, auxiliary shoring posts. The posts remained much longer than recommended and one of them had even collapsed. For this reason alone, a jury could find defendant negligently failed to repair a condition made more dangerous over time albeit given a deceptive appearance of safety. See Restatement (Second) of Torts § 362; see also Bauer v. 141-149 Cedar Lane Holding Co., 24 N.J. 139 (1957).

The facts also suggest that, although decedent was aware of the slant in the floor, he did not know of the severity of the condition, namely, the sagging floor was gradually and incrementally worsening. Defendant, on the other hand, knew there was termite damage as evidenced by the repairs it undertook ten years prior, as well as recent efforts to treat the re-infestation by drilling holes in the front entry staircase of the building housing plaintiff's apartment unit to inject soil poison.

Applying the factors articulated in Hopkins and Meier, it is clear that defendant had a duty to maintain the termite-damaged crawl space and floor in a reasonably safe condition. First, Section 5 of the lease gave the landlord the right of entry for "purposes of making ordinary or emergency repairs and maintenance." Conversely, the lease imposed no duty on the tenant to inspect for and make necessary structural repairs.

Second, the nature of the risk of harm in this case is quite severe. Termite-damaged floors can collapse and negatively affect the structural integrity of the entire building, as suggested by plaintiff's expert, who reported the defect worsened every time someone stepped on the floor in that area.

Third, the landlord is in the best position to correct these structural defects. Surely, a tenant may not have the financial resources or incentive to maintain the structural stability of the floor, inasmuch as the unit will revert back to the landlord at the end of the lease and be re-let to another tenant. Moreover, the damage could only be accessed by a crawl space underneath tenant's apartment unit, where it would be unreasonable for a tenant to inspect. Furthermore, defendant benefits in the long-term from maintaining the property as defendant collects rent to fund maintenance of the property and has the incentive to inspect the property to prevent hazardous conditions and attract new tenants.

Given this duty, the proofs allow a reasonable jury to find defendant's breach thereof, namely, that defendant knew or had reason to know of the structural defect; decedent was not aware of the full extent of the otherwise latent defect; and defendant either negligently repaired or failed to remedy this dangerous condition. If a jury were to so find, it could then determine whether such negligence was a proximate cause of decedent's injuries and if so, to what extent decedent's own conduct, as compared with defendant's negligence, caused him to fall.

Reversed and remanded. We do not retain jurisdiction.

I hereby certify that the foregoing is a true copy of the original on file in my office.

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CLERK OF THE APPELLATE DIVISION