Lechler v. 303 Sunset Ave. Condo. Ass'n, Inc.

• Decision Date: 29 December 2017
• Docket Number: DOCKET NO. A–1095–16T3
• Citation: 452 N.J.Super. 574,178 A.3d 711
• Parties: Thomas G. LECHLER, and Ulrike Lechler, his wife, Plaintiffs–Appellants, v. 303 SUNSET AVENUE CONDOMINIUM ASSOCIATION, INC., and Townsmen Properties, LLC, Defendants–Respondents.
• Court: New Jersey Superior Court — Appellate Division

452 N.J.Super. 574

178 A.3d 711

Thomas G. LECHLER, and Ulrike Lechler, his wife, Plaintiffs–Appellants,

v.303 SUNSET AVENUE CONDOMINIUM ASSOCIATION, INC., and Townsmen Properties, LLC, Defendants–Respondents.

DOCKET NO. A–1095–16T3

Superior Court of New Jersey, Appellate Division.

Argued November 28, 2017

Decided December 29, 2017

Richard P. Krueger argued the cause for appellants (Krueger & Krueger and The Blanco Law Firm, LLC, attorneys; Richard P. Krueger, on the brief; Pablo N. Blanco, of counsel and on the brief).

Patrick B. Minter argued the cause for respondents (Donnelly Minter & Kelly, LLC, attorneys; Patrick B. Minter, of counsel; Seth A. Abrams, on the brief).

Ronald B. Grayzel argued the cause for amicus curiae New Jersey Association of Justice (Levinson Axelrod, PA, attorneys; Ronald B. Grayzel, on the brief).

Before Judges Reisner, Hoffman and Gilson.

The opinion of the court was delivered by

HOFFMAN, J.A.D.

In this premises liability case, plaintiffs Thomas and Ulrike Lechler¹ appeal from the October 24, 2016 Law Division order granting a directed verdict to defendants, 303 Sunset Avenue Condominium Association, Inc. (Association) and its property manager, Townsmen Properties, LLC (Townsmen), and dismissing plaintiffs' negligence claim with prejudice. We hold that the Association had a statutory duty to maintain the common areas, including a duty to identify and correct dangerous conditions, and that duty extended to residents of the condominium building, regardless of their characterization as licensees or invitees. While a condominium association has a statutory right to adopt a by-law precluding residents from suing the association for negligence, the Association did not adopt such a by-law. Because plaintiff's evidence, if credited by the jury, established a prima facie case of negligence, we reverse and remand for a new trial.

I

We discern the following facts from the trial record. In October 2008, plaintiffs purchased a unit from the developer of The 303 Sunset Avenue Condominium (The Condominium), a three-story building containing twenty-four residential units in Asbury Park. The developer established The Condominium in accordance with the provisions of the Condominium Act (Act), N.J.S.A. 46:8B–1 to -38. The Master Deed for The Condominium delegates to the Association "all of the powers, authority and duties permitted pursuant to the Act necessary and proper to manage the business and affairs of [T]he Condominium."

Plaintiff's accident occurred when he stumbled down the center of The Condominium's wide exterior stairs that led from the building to a walkway. Despite the width of the stairs—158 inches—they lacked a center handrail, with hand railings only going down the sides. A photograph introduced at trial showed bolt holes in the center of the stairs, indicating a railing previously went down the middle of the stairway. Plaintiff's expert also observed that there were bolts inside the drill holes.

Plaintiff testified that on August 24, 2014, he started to stumble near those holes, could not catch his balance, and thus began to run down the staircase trying to recover his balance; however, he hit the last step with the edge of his left heel and fell to the ground, screaming in pain. Plaintiff described his left heel as "completely deformed." A passerby called an ambulance, which transported plaintiff to a nearby hospital. There, doctors diagnosed plaintiff's injury as a displaced fracture

of the calcaneus of the left foot. Later that day, plaintiff underwent internal fixation surgery, with the installation of hardware to repair the fracture.

The balcony of plaintiffs' unit overlooks the stairs where his accident occurred. Plaintiff admitted he had used the stairs "on many occasions prior" to that day. He usually walked "down the stairs in the middle." He never experienced a problem using the stairs before his accident.

Plaintiffs also presented the testimony of the Association's president. She lived in The Condominium since the summer of 2010, and became the Association's president that same year. She agreed the By–Laws stated, "The [B]oard of [D]irectors shall have the powers and duties necessary or appropriate for the administration of the affairs of the [A]ssociation and shall include but shall not be limited to the following: the operation, care, upkeep, maintenance, repair, and replacement of the property and the commons elements." She also agreed that "under the [B]y-[L]aws, the [A]ssociation shall discharge its powers in a manner that protects and furthers the health, safety, and general welfare of the residents of the community." She recognized these By–Laws established "an obligation that the [A]ssociation ... owes to the members of the community."

Regarding the stairs where plaintiff's accident occurred, the president said she knew people walked down the center without using the handrails, and she had done so herself. Before plaintiff's accident, she had never received a complaint about the stairs and its lack of a center handrail. She further testified that the State inspected The Condominium in 2012, and the inspector did not advise that the stairway needed a center handrail.

On October 19, 2013, Townsmen entered into an agreement with the Association to serve as The Condominium's project manager. The agreement required Townsmen to coordinate "all daily property management issues, such as repairs, maintenance, landscaping, snow removal, [and] security" for the Association. Plaintiff's counsel also read from the deposition of Townsmen's owner, who acknowledged that, under the agreement, his company was responsible "for the coordination of all daily property ... maintenance, landscaping, snow removal, security, and all other issues including contracting, negotiating, and monitoring." When asked if his company was responsible "to make recommendations to the [B]oard as to safety concerns on the premises," he replied, "Could be."

Plaintiff also presented the expert testimony of a licensed architect and professional planner. Defendants did not object to his qualifications as an expert in these fields. The expert testified the Building Officials & Code Administrators International, Inc. (BOCA) code was established in the 1950s, and then updated every three years. He further explained that, before 1977, different municipalities could adopt different model codes, but most adopted the BOCA code.

The expert measured the distance between the handrails on either side of the stairs, determining they were 158 inches apart. He testified that in 1975, the year The Condominium building was constructed,

the BOCA basic building code ... required a central handrail for any stairway greater than [eighty-eight] inches wide.... A center handrail was, in fact, installed. Somebody removed it.... [W]hen they removed this railing, they made the stairway less safe[,] [b]ecause they removed a very important safety feature ....

He added the New Jersey subcode that applies to renovations prohibited the removal of any "previously-installed item in a building that was installed in accordance with the code." Accordingly, defendants should have replaced the handrail with "a code compliant handrail."

The expert reviewed The Condominium's "architectural exhibits," which were "used as part of the public offering statements" and were presumably "given to ... [prospective] purchaser[s] so they could then review all the components within the building including their unit ...." The exhibits showed a handrail going down the center of the stairs. The expert said the architect would have only drawn a handrail if the stairs actually had one. He therefore concluded the stairs had a handrail when the architect drew the exhibit.

The expert explained that, in 2012, the State inspected The Condominium for maintenance code violations, not building code violations; while the maintenance code only requires handrails on either side of the stairs, the building code also requires one down the center.

The expert further testified, "And if the property manager were to visit that building, [the manager] would see bolts sticking out—you know, bolts in the threads, which ... begs the question, why are those bolts there, why was that handrail there." He added:

[I]f they had called upon a professional or somebody else to look at that and give them an opinion, that professional—it is reasonably probable that the professional would have told them, well, that was ... a center handrail, and previous codes and standards required a center handrail. And I don't know who removed it, but it's not safe.

The expert also testified that Townsmen "should have recommended to the [A]ssociation that the handrail be reinstalled because it's a safety feature." He concluded, "[I]f the center handrail was there when [plaintiff] lost his balance, he could have grasped the handrail and regained his balance.... The lack of a center handrail was the substantial contributing factor to the fall."

After plaintiffs presented their case, defendants moved for a directed verdict, arguing plaintiff knew the stairs lacked a center handrail. The trial court agreed, concluding plaintiff was a licensee aware of the missing handrail. While the court acknowledged N.J.S.A. 46:8B–14 requires condominium associations to "maintain, repair, replace, clean, and sanitize the common elements," it found the record lacked proof defendants knew they needed to replace the handrail. As a result, the court granted defendants' motion for a directed verdict and dismissed plaintiffs' complaint with prejudice.

This appeal followed.

II

The same evidential standard governs motions for judgment, whether made under Rule 4:37–2(b) at the close of the plaintiff's case, under Rule 4:40–1 at the close of evidence, or under Rule 4:40–2(b) after the verdict, namely: "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according [that party] the benefit of all...