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

NOT FOR PUBLICATION WITHOUT THE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.
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A-3349-19

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, Raymond1conducted 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 
10 A-3349-19

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 
12 A-3349-19

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. 
13 A-3349-19

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 
14 A-3349-19

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 
15 A-3349-19

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.