Dwyer v. Skyline Apartments, Inc.

• Decision Date: 08 March 1973
• Citation: 123 N.J.Super. 48,301 A.2d 463
• Parties: Josephine DWYER, Plaintiff-Respondent, v. SKYLINE APARTMENTS, INC., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 48

123 N.J.Super. 48

301 A.2d 463

Josephine DWYER, Plaintiff-Respondent, v. SKYLINE APARTMENTS, INC., Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 29, 1973.

Decided March 8, 1973.

Herbert Klein, Passaic, for appellant (Krieger & Klein, Passaic, attorneys).

Robert V. Schauer, Newark, for respondent (Loftus, Schauer & Cuozzi, Newark, attorneys).

Before Judges CARTON, MINTZ and LARNER.

The opinion of the court was delivered by

LARNER, A.J.S.C. (temporarily assigned).

Defendant appeals from a judgment entered for plaintiff in the sum of $1,500 by a judge of the Bergen County District Court after a trial without a jury.

Plaintiff was a tenant for 15 years in a multiple-family garden apartment development owned by defendant. On February 8, 1971 she was in the bathtub of her apartment, and as she turned on the hot water faucet the entire 'fixture came out of the tile,' as a result of which scalding water gushed out of the pipe causing burns to various parts of her body.

The testimony in the case was limited to that of plaintiff, who described the faucet after it came out of the wall as 'very corroded.' However, she had no idea of its condition prior to the accident since the corrosion was on the portion of the faucet which was in the wall, and as a consequence no complaint was ever made to the landlord. It was in essence a latent defect unknown to the tenant, unknown to the landlord and not discernible on reasonable inspection.

The trial judge found for plaintiff despite the absence of actual or constructive notice of the condition by the landlord. He concluded that the landlord is strictly liable because of its contractual responsibility flowing from a continuing implied covenant of habitability. In effect, he concluded that negligence concepts are no longer viable in personal injury claims by tenant versus landlord arising out of the condition of the tenant's premises.

A brief review of some of the precedents controlling landlord-tenant liability is in order.

A landlord of a multiple-family dwelling has the duty to maintain all parts of the structure and equipment in good repair, including the premises within the confines of the tenant's apartment. Michaels v. Brookchester, Inc., 26 N.J. 379, 140 A.2d 199 (1958); Altomare v. Cesaro, 70 N.J.Super. 54, 174 A.2d 754 (App.Div.1961). This duty as it applies to the tenant'spremises came about through the rejection of the Caveat emptor theory and the application of the Tenement House Act (N.J.S.A. 55:1--1) now known as Hotel and Multiple Dwelling Act (N.J.S.A. 55:13A--1). Ibid.

Furthermore, our courts have consistently held that regardless of the application of the statute, the landlord has the duty to maintain and repair those facilities in or out of the tenant's premises which are an integral part of the equipment under his control, such as water pipes, heating pipes and radiators, plumbing fixtures, electrical equipment and the like. Coleman v. Steinberg, 54 N.J. 58, 253 A.2d 167 (1969); Conroy v. 10 Brewster Ave. Corp., 97 N.J.Super. 75, 234 A.2d 415 (App.Div.1967); Altomare v. Cesaro, Supra; Restatement, Torts 2d, §§ 360 and 361 (1965).

Hence, under either the theory of the landlord's obligations under the Hotel and Multiple Dwelling Act or the theory of control of a water supply system and all its parts, defendant in this case unquestionably had the basic duty to maintain and repair the piping and faucets in and leading to plaintiff's bathtub.

However, the nexus between duty and liability is proof of negligence. Negligence in this context requires not only proof of the condition which caused the injury but that the condition was known or should have been known by the landlord prior to the occurrence, so that he had an opportunity to correct it.

Since his duty is not to insure the safety of tenants but only to exercise reasonable care, a landlord is liable only for injurious consequences to a tenant by reason of defects 'of which he has knowledge or of defects which have existed for so long a time that * * * he had both an opportunity to discover and to remedy.' Francisco v. Miller, 14 N.J.Super. 290, 296, 81 A.2d 803, 806 (App.Div.1951); Coleman v. Steinberg, 54 N.J. 58, 63, 253 A.2d 167 (1969); Ellis v. Caprice, 96 N.J.Super. 539, 547, 233 A.2d 654 (App.Div.1967); Mikrut v. Pellow, 65 N.J.Super. 14, 18, 166 A.2d 809 (App.Div.1961), certif. den. 34 N.J. 464, 169 A.2d 742 (1961); Schnatterer v. Bamberger & Co., 81 N.J.L. 558, 79 A. 324 (E. & A.1911); Restatement, Torts 2d, §§ 360 and 361 (1965); Harper & James, Law of Torts, § 27.17; Prosser, Law of Torts (3d ed. 1964), § 63.

This basic element of actual or constructive notice in the area of landlord liability arising out of the duty to maintain and repair rented premises is ingrained in our law as a necessary prerequisite to a finding of negligence--the failure to exercise reasonable care. An exception of course exists in cases where the landlord created the condition. Coleman v. Steinberg, Supra.

The proofs at trial establish beyond dispute that the defect was a latent one not known or reasonably discoverable by the defendant. Hence, under existing legal principles the landlord cannot be held liable for the unfortunate occurrence. The mere happening of the event resulting from a latent defect followed by injurious consequences is not sufficient in itself to impose liability unless the foregoing concepts of the law of negligence have been rendered obsolete by the current advances in the law dealing with the landlord-tenant relationship.

The trial court and the plaintiff point to the landmark case of Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970), as indicative of a redefinition of the liability of a landlord for injuries sustained by a tenant. It is contended that the logical extension of the language in that opinion requires the conclusion that proof of negligence with its traditional requisites is no longer necessary for recovery.

In Marini the Supreme Court considered the duties of the landlord and the legal consequences thereof in the context of a summary action for dispossess in the county district court. It held that the landlord should be held to an implied covenant against latent defects or an implied covenant of habitability. See also, Reste Realty Corp. v. Cooper, 53 N.J. 444, 454, 251 A.2d 268 (1969). In further articulation of this undertaking the court in Marini stated * * Actually it is a covenant that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty original construction or deterioration from age or normal usage. And further it is a covenant that these facilities will remain in usable condition during the entire term of the lease. In performance of this covenant the landlord is required to maintain those facilities in a condition which renders the property livable. (56 N.J. at 144, 265 A.2d at 534)

From this premise the court reached the conclusion that this covenant of habitability and the tenant's covenant to pay rent were mutually dependent. Hence, it was held that if a landlord fails to make repairs of vital facilities necessary to maintain the premises in a livable condition, the tenant may do so and deduct the cost thereof from future rents. Recourse to such...