EVELYN DELGADO VS. SHYAM K. NORUTHUN (L-0671-14, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3521-16T1

EVELYN DELGADO,

Plaintiff-Appellant,

v.

SHYAM K. NORUTHUN,

Defendant-Respondent.
__________________________________

Submitted May 14, 2018 – Decided August 21, 2018

Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-0671-14.

Spevack Law Offices, attorneys for appellant
(Howard H. Sims, on the brief).

Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys for respondent (Jeffrey J. Czuba,
of counsel and on the brief).

PER CURIAM

Plaintiff appeals from the summary judgment dismissal of her

negligence complaint against her landlord. She sustained injuries

while trying to change the lightbulb of the ceiling fixture in the

entrance hallway leading to her apartment. We reverse.
 We discern the following facts from the record, extending to

plaintiff all favorable inferences. Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995). At the time of the accident,

plaintiff rented the second-floor apartment of defendant's two

family non-owner-occupied house in Perth Amboy. Plaintiff

accessed the stairs to her apartment through a common entry

hallway. The light fixture, which was placed slightly to the left

of the staircase as one faced it, illuminated the hallway and

stairway.

At her deposition, plaintiff asserted that defendant did not

communicate with her, and funneled all communication through his

brother Pravin. Plaintiff asserted that a leak in her bathroom

caused an electrical short in the hallway light. The problem with

the light coincided with the leak, which persisted for about a

week. Pravin fixed the leak, but not the light. At one point,

the downstairs tenant replaced the lightbulb, but that did not

solve the problem.

In her interrogatory answers, plaintiff alleged that she

asked Pravin to fix the light, and he told her that he was not

responsible for that, and she must do it herself. In depositions,

she said that "Pravin wouldn't do it." Plaintiff was hazy about

how she told Pravin about the light, stating she "probably" sent

a text. She also could not recall when she asked him to fix it.

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 After Pravin failed to fix the light, plaintiff took matters

into her own hands. She stood several steps up the staircase,

leaned over the bannister, and attempted to unscrew the center nut

that held the globe in place. She felt a pain in her back (which

was caused by a prior slip-and-fall), lost her balance and fell

to the floor, injuring her leg.

In granting summary judgment, the trial judge reasoned that

even if the darkened hallway were a dangerous condition, defendant

did not proximately cause plaintiff's injuries. Rather, she fell

because she voluntarily tried to change the lightbulb and lost her

balance, for reasons unrelated to any darkened condition in the

hall. This appeal followed.

On appeal from an order granting summary judgment, we exercise

de novo review, applying the same standard as the trial court.

Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We

determine whether there exists a genuine issue of material fact,

and if not, whether the motion judge correctly applied the law.

Ibid.

"To sustain a cause of action for negligence, a plaintiff

must establish four elements: '(1) a duty of care, (2) a breach

of that duty, (3) proximate cause, and (4) actual damages.'"

Townsend v. Pierre, 221 N.J. 36, 51 (2015) (citations omitted).

"A landlord of a multiple-family dwelling has the duty to maintain

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all parts of the structure and equipment in good repair . . . ."

Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 51 (App.

Div. 1973). "[T]he 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." Id. at 52; see also Michaels v.

Brookchester, Inc., 26 N.J. 379, 382 (1958). As the entry hall

ceiling light was in a common area under the landlord's control,

he had the duty to maintain and repair it.

However, to establish negligence, a tenant must prove not

only a failure to repair a dangerous condition, 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." Dwyer, 123 N.J. Super. at 52.

Plaintiff testified that she informed Pravin the light was

out, and Pravin told her to fix it herself. We recognize there

are weaknesses in plaintiff's proofs. She cannot recall when she

told Pravin about the light. She said she probably told him by

text, but did not produce it (unlike a complaint about another

problem at the premises, which she sent by an email she produced).

However, taking her allegations as true, as we must at this stage,

plaintiff has established that defendant was on notice of a

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dangerous condition – an unlit hallway and staircase – and waived

an opportunity to correct it. Consequently, she has established

a breach of a duty.

We next consider the issue of proximate cause. As we recently

explained, a jury should decide the issue except when a court

determines that no reasonable jury could find that a defendant's

breach of duty proximately caused a plaintiff's injuries. Broach-

Butts v. Therapeutic Alternatives, Inc., ___ N.J. Super. ___, ___

(App. Div. 2018) (slip op. at 17). Proximate cause is a "'natural

and continuous sequence, unbroken by an efficient intervening

cause, [that] produces the result complained of,'" but

"[i]ntervening causes that are reasonably foreseeable or are

normal incidents of a risk . . . do not relieve a tortfeasor of

liability." Cruz-Mendez v Isu/Insurance Servs., 156 N.J. 556, 575

(1999) (quoting Daniel v. Dep't of Transp., 239 N.J. Super. 563,

595 (App. Div. 1978)). Plaintiff need show that defendant's breach

was a substantial factor, contributing to her injury. Broach-

Butts, ___ N.J. Super. at ___ (slip op. at 17). Proof of

foreseeability is relevant, but not essential. Id. at ___ (slip

op. at 18).

Applying these principles, plaintiff is entitled to present

the issue of proximate cause to a jury. We reject the trial

court's conclusion that plaintiff's voluntary decision to fix the

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light broke the causal chain as a matter of law. A jury could

find it was reasonably foreseeable that plaintiff would try to fix

the light herself, once defendant refused to do it and told her

it was her responsibility. Furthermore, a jury should assess, as

a matter of comparative negligence, plaintiff's decision to reach

over the bannister, rather than use a sturdy ladder, to reach the

problem light.

The New York appellate court in Shutak v. Handler, 599

N.Y.S.2d 24 (App. Div. 1993) reached the same conclusion in a

similar case. In Shutak, a tenant fell off a chair trying to

repair a bubble in the ceiling that the landlord ignored. Id. at

25. The court rejected the argument that the tenant's effort was

an intervening act that relieved the landlord of liability. Id.

at 26. The court reasoned that the "plaintiff's attempt . . . was

a reasonably foreseeable consequence of [the] defendants' failure

to repair the ceiling." Id. at 26. The court also held that any

negligence by the plaintiff, in the way she tried to fix the

ceiling did not supersede defendants' negligence. Id. at 27.

Reversed and remanded for trial. We do not retain

jurisdiction.

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