KAREN LAFFEY VS. RAYMOND AUFIERO (L-0460-19, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3349-19

KAREN LAFFEY and
THOMAS LAFFEY,

Plaintiffs-Appellants,

v.

RAYMOND AUFIERO and
KIM ANNE AUFIERO,

Defendants-Respondents.
__________________________

Argued October 12, 2021 – Decided December 7, 2021

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0460-19.

Douglas R. D'Antonio argued the cause for appellants
(Wisniewski & Associates, LLC, attorneys; John S.
Wisniewski and Jennifer M. Kurtz, on the briefs).

Paul J. Endler, Jr. argued the cause for respondents
(Methfessel & Werbel, attorneys; Gerald Kaplan and
David Incle, Jr., on the brief).

PER CURIAM
 Plaintiffs Karen Laffey and Thomas Laffey appeal the summary judgment

order by Judge Henry P. Butehorn dismissing their premises liability lawsuit

against their landlords, defendants Raymond Aufiero and Kim Anne Aufiero.

Plaintiffs contend defendants had a legal duty to install a handrail along four

concrete steps on the side of a Belmar single-family home ("the property")

leased to them. In addition, plaintiffs appeal an order granting defendants'

motion to extend discovery after the initial discovery end date. For reasons that

follow, we affirm both orders.

I

When reviewing an order granting summary judgment, we apply "the

same standard governing the trial court." Oyola v. Xing Lan Liu, 431 N.J. Super.

493, 497 (App. Div. 2013). A court should grant summary judgment when the

record reveals "no genuine issue as to any material fact" and "the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We accord

no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213

N.J. 463, 478 (2013) (citations omitted). Summary judgment should be denied

when determination of material disputed facts depends primarily on credibility

evaluations. Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div.

2011).

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 Mindful of these principles, we view the facts from the record in a light

most favorable to plaintiffs as the non-moving party and give them the benefit

of all favorable inferences. Angland v. Mountain Creek Resort, Inc., 213 N.J.

573, 577 (2013). Since 1997, plaintiffs have leased the property–built in 1930–

from defendants through written lease agreements. Defendants purchased the

property in 1984. The lease agreements delineated plaintiffs' responsibilities,

such as garbage disposal and snow removal. Although not mentioned in the

lease agreements, Raymond 1 conducted repairs, "[a]s necessary," such as cutting

the grass weekly during summer months and asking the tenants "if they need[ed]

anything." During winters, Raymond visited the property monthly to collect the

rent. Each spring and fall, he switched out "the storm glass to screens on the

kitchen door." Defendants resided "only . . . ten minutes away," and regularly

drove by the property.

On the afternoon of February 13, 2018, Karen returned home from the

grocery store. After parking in the driveway on the side of the house near the

kitchen, she honked the car horn to signal to Raymond to come outside to help

her with the groceries. Because it had rained earlier, the ground was wet. While

1
We use the parties' first names because they share a surname and for ease of
reference. In doing so, we mean no disrespect.
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carrying a bag of groceries walking up the four concrete stairs leading to the

kitchen, Karen opened the storm door and "put one foot on the kitchen floor"

and immediately "went up in the air and out the door backwards," hitting the

storm door on her way out. She "landed on the third step first, went to reach for

the railing that wasn't accessible [because the storm door prevented her from

grabbing it, and] bounced up in the air again." She then fell on her right

shoulder, hitting her head on the ground, and landing on her back in the

driveway. The "railing" is actually a metal pipe guard approximately one inch

in diameter situated to the right side of the stairs and is affixed to both the first

stair and the wall next to the door. Plaintiffs' expert opined that "[a]fter [Karen]

slipped and lost her footing, she fell and was injured because the stair was not

equipped with code complaint handrails to help her support herself or arrest her

fall."

After Karen got up, she told Thomas, her husband, to take her to the

hospital. The following day, a surgeon reconstructed her shoulder by

performing a rotator cuff and shoulder replacement. She was later diagnosed

with a herniated disk resulting from the fall. Karen contends she has permanent

injuries that affect her lifestyle and keep her from continuing her primary

occupation of candle-making business.

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 Plaintiffs filed suit alleging Karen's fall was the "result of . . . defendants'

carelessness, recklessness, and/or negligence in their ownership, care,

maintenance, repair, inspection supervision, and/or construction of the

[p]roperty, house, doorway and/or door steps." Karen sought damages for

permanent injuries, medical expenses, pain and suffering, and an inability to

perform her customary activities. Thomas made a per quod claim for loss of

"companionship, society, guidance, material services[,] and consortium of his

wife."

After discovery concluded,2 defendants moved for summary judgment

dismissal of plaintiffs' complaint. Judge Butehorn entered an order granting the

motion. In a written statement of reasons, he explained:

There is no statutory duty identified nor claimed
applicable to . . . defendant landlord[s] in this case.
Rather, it has consistently been held since Patton [v.
Texas Co., 13 N.J. Super. 42, 47 (App. Div. 1951)] . . .
as well as in . . . New Jersey case law since the adoption
of the [Restatement (Second) of Torts (Am. Law Inst.
1965)] . . . that a lessor does not have a duty to warn the
lessee about, nor otherwise modify, a condition on the
leased property that is patent[,] and the tenant readily
acknowledges their knowledge about. The same is true
even if the claimed condition is not in compliance with
a mandated building code. See Reyes v. Egner, 404
N.J. Super. 433 (App. Div. 2009). In this case, as the

2
The discovery issue on appeal will be discussed later.

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 claimed dangerous condition was not latent and was
known to [Karen] for many years[,] the court cannot
find defendants had any duty to either warn [her] about
the condition or otherwise modify it. The lack of that
duty necessarily prevents a finding of a jury that
defendants breached a duty proximately causing
plaintiff's claimed injuries. . . . The court need not
address whether the pipe constituted a railing in
compliance with the building codes as a pre-existing
condition, or "grandfathered."[3]

II

Plaintiffs argue on appeal that the judge misapplied the law in granting

summary judgment to defendants, "employ[ing] a very narrow and archaic view

of landlord premises liability, applying Patton . . . and misapplying the

Restatement (Second) of Torts § 358 [(Am. Law Inst. 1965)]." They contend

the judge should have applied "the modern, fact-sensitive approach" delineated

in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), which would have

established defendants breached a duty of care owed to them, thereby preventing

summary judgment dismissal of their suit. We disagree and affirm substantially

3
Although we recognize the court did not intend to do so, we decline to utilize
this term because of its prejudiced origins. See Webster's Third New
International Dictionary 987 (2002) (definition of "grandfather clause"); Benno
C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the
Progressive Era, 82 Colum. L. Rev. 835 (1982).

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for the reasons set forth by Judge Butehorn in his thoughtful statement of

reasons. We add the following comments.

The pivotal issue in this case is whether defendants owed a duty to

plaintiffs, cognizable in a tort action, to install handrails on the stairs leading to

the house on the property leased by plaintiffs. "The question of whether a duty

exists is a matter of law properly decided by the court, not the jury, and is largely

a question of fairness or policy." Chen Lin Wang v. Allstate Ins. Co., 125 N.J.

2, 15 (1991) (citing Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523,

529 (1988)). 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, 132 N.J. 426 (1993), and with the

precepts of Restatement (Second) of Torts § 358 (Am. Law Inst. 1965). Meier

v. D'Ambose, 419 N.J. Super. 439, 445-47 (App. Div. 2011). While at common

law the general rule was that 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, "[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 v. Vena, 321 N.J. Super 601, 605 (App Div. 1999);

Restatement (Second) of Torts §§ 356, 357-362 (Am. Law Inst. 1965). These

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sections of the Restatement set forth exceptions to the general rule, namely

Section 357, where the lessor contracts to repair; Section 358, where the lessor

knows of a dangerous condition on the property but fails to disclose it to the

lessee; and Section 362, where the lessor has been negligent in making repairs.

These, however, do not apply here.

In deciding whether defendants owed plaintiffs a duty, the judge relied, in

part, upon this court's opinion in Patton, which has long served as a benchmark

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

facts in Patton are very similar to those in this case. There, the plaintiff sued

the defendant landlord for an injury sustained during a fall while walking down

the front steps. Patton, 13 N.J. Super. at 44. The tenant had previously asked

the landlord to repair the steps, but the landlord was under no contractual

obligation to do so and refused. Id. at 45-46. For the court, then Judge William

J. Brennan, Jr. wrote 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 general rule is

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

[Id. at 47.]

Almost fifty years later, in Szeles, we considered whether the rule

announced in Patton remained good law in view of a series of rent abatement

cases, which held that residential leases carry an implied warranty or covenant

of habitability. 321 N.J. Super at 605. 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. Id. 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 Patton's general rule

and held the landlord was not liable to the plaintiff because "[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 the plaintiffs failed to prove 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 [the]

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

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concealment' of a dangerous condition." Id. at 459. Nevertheless, we concluded

this requirement was inapposite in the circumstances of the case. The plaintiff

rented a summer beach house at the Jersey Shore for two weeks. Id. at 438-39.

In contrast, the tenants in Patton 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 455-

56, 460. Hence, we concluded that the record, viewed in a light most favorable

to the plaintiffs, raised genuine issues of fact as to whether a vacationing lessee

would have reasonably noticed the dangerous condition. Id. at 461.

Here, in contrast to Reyes, but like Patton and Szeles, plaintiffs lived in

the property for many years––about twenty-one. 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 of which the tenant

had actual knowledge. 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 h[e]ld that the lessors' 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

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 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 (quoting Restatement (Second) of Torts §
358 (Am. Law Inst. 1965)).]

As Judge Butehorn noted, plaintiffs had lived in the property for many

years, and Karen was well-aware of the lack of a handrail before her fall.

Accordingly, even when viewing the evidence in a light most favorable to

plaintiffs, the record clearly establishes that plaintiffs were aware of the lack of

a handrail.

Plaintiffs, through their liability expert, contend defendants violated their

duty to install a handrail as imposed by New Jersey Uniform Fire Code (UFC),

N.J.A.C. 5:70-1.1 to -4.20 and the Borough of Belmar's Property Maintenance

Code. The UFC, states, in relevant part,

Every required exit stairway having three or more risers
and not provided with handrails or in which the existing
handrails are judged to be in danger of collapsing when
used under emergency exiting conditions, shall be
provided with handrails for the full length of the run of
steps on at least one side. . . . Where there are no
handrails or where the existing handrails must be

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 replaced in order to correct a hazardous condition, the
handrails shall be designed and installed in accordance
with the provisions of the New Jersey Uniform
Construction Code.

[N.J.A.C. 5:70-4.11(m).]

The municipal code, 4 provides that

[e]very exterior and interior flight of stairs having more
than four risers shall have a handrail on at least one side
of the stairs, and every open portion of a stair, landing,
balcony, porch, deck, ramp or other walking surface
which is more than 30 inches above the floor or grade
below shall have guards[.]

Thus, plaintiffs' expert opined that defendants' failure to install handrails

"deprived [Karen] of the safety equipment she could have used to prevent or

arrest her fall and created the dangerous condition that was a cause of her fall

and resulting injuries."

These contentions are unpersuasive. In Reyes, we upheld summary

judgment concerning the absence of a handrail even though the handrail was

apparently mandated by the building code. We sustained the dismissal of the

handrail claim because the tenant had admitted that she was aware before the

accident that the deck did not have a handrail. Reyes, 404 N. J. Super at 462.

4
The Borough of Belmar's Property Management Code adopts the BOCA
National Property Management Code of 1996.
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The tenant's awareness of that dangerous condition precluded recovery under

Section 358, which only imposes liability for conditions that are not known, or

reasonably discoverable, by the tenant. See Restatement (Second) at § 358(1)(a)

and (b). As noted, Karen was well-aware of the lack of a handrail. Moreover,

the property was built in 1930 and there was no proof in the record that there

was a violation of any state or municipal code.

In sum, for reasons consistent with the applicable legal principles noted

above, summary judgment was appropriately granted in defendants' favor.

Although we appreciate the severity of Karen's injuries, defendants were not

obligated to protect her from falling on stairs that she clearly knew had no

handrail to protect her from harm when she lost her balance while ascending

them.

III

Considering that we affirm Judge Butehorn's summary judgment order

dismissing plaintiffs' suit and that his decision was not based upon the

defendants' liability expert report, we need not address plaintiffs' contention that

Judge Joseph P. Quinn abused his discretion in granting defendants' motion to

extend discovery beyond the discovery end date to allow service of their liability

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expert report. Nonetheless, for the sake of completeness, we briefly address

their contention.

Our court applies "'an abuse of discretion standard to decisions made by

[the] trial courts relating to matters of discovery.'" C.A. ex rel. Applegrad v.

Bentolila, 219 N.J. 449, 459 (2014) (alteration in original) (quoting Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). "We generally

defer to a trial court's disposition of discovery matters unless the court has

abused its discretion or its determination is based on a mistaken understanding

of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.

2005). An abuse of discretion "arises when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir.

1985)). We assess the judge's interpretation of applicable law de novo. Barlyn

v. Dow, 436 N.J. Super. 161, 170 (App. Div. 2014).

To satisfy the exceptional circumstances standard permitting extension of

a discovery end date after discovery has elapsed, a party must show:

(1) why discovery has not been completed within time
and counsel's diligence in pursuing discovery during
that time; (2) the additional discovery or disclosure
sought is essential; (3) an explanation for counsel's

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 failure to request an extension of the time for discovery
within the original time period; and (4) the
circumstances presented were clearly beyond the
control of the attorney and litigant seeking the
extension of time.

[Rivers, 378 N.J. Super. at 79; see also R. 4:24-1(c).]

In deciding defendant's motion, Judge Quinn considered the following

facts. On December 20, 2019, nine days after the December 11 discovery

deadline, defendants filed a motion to extend discovery to provide their liability

expert report. In support, defendants' counsel certified that upon receiving

plaintiffs' liability expert report on October 16—a day after expert reports were

due—he forwarded the report to his liability expert to review and issue a report.

There was no prior request to extend discovery before the discovery end date

because all other necessary discovery, including depositions and medical

examinations, were completed within the discovery period. It was not until

defendants' liability expert informed counsel he was unable to provide his report

before the December 11 deadline because of his "busy schedule" that there was

need to extend discovery. Defendants' expert report––refuting plaintiffs'

liability expert opinion that defendants were negligent in failing to provide a

handrail on the property––was submitted to plaintiffs three days before the

motion's return date and the entry of the order granting the motion on January

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10, 2020. Given these facts, we discern no reason to determine the judge's order

to extend discovery after the discovery end date based on exceptional

circumstances was an abuse of discretion.

Affirmed.

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