J.H. v. R & M Tagliareni, LLC

• Decision Date: 29 March 2018
• Docket Number: DOCKET NO. A–0031–16T4
• Citation: 184 A.3d 922,454 N.J.Super. 174
• Parties: J.H., an infant BY his Guardian Ad Litem, A.R., and A.R., individually, Plaintiffs–Appellants, v. R & M TAGLIARENI, LLC, Robert and Maria Tagliareni, II, LLC, Defendants–Respondents. R & M Tagliareni, LLC, Robert & Maria Tagliareni, II, LLC, Defendants/Third–Party Plaintiffs, v. J.H., Sr., V.H. and L.C., Third–Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

454 N.J.Super. 174

184 A.3d 922

J.H., an infant BY his Guardian Ad Litem, A.R., and A.R., individually,¹ Plaintiffs–Appellants,

v.R & M TAGLIARENI, LLC, Robert and Maria Tagliareni, II, LLC, Defendants–Respondents.

R & M Tagliareni, LLC, Robert & Maria Tagliareni, II, LLC, Defendants/Third–Party Plaintiffs,

v.J.H., Sr., V.H. and L.C., Third–Party Defendants.

DOCKET NO. A–0031–16T4

Superior Court of New Jersey, Appellate Division.

Argued December 12, 2017

Decided March 29, 2018

John E. Molinari argued the cause for appellants (Blume, Forte, Fried, Zerres & Molinari, PC, attorneys; John E. Molinari, Chatham, on the brief).

Danielle M. Hughes argued the cause for respondents (Koster, Brady & Nagler, LLP, attorneys; Danielle M. Hughes, on the brief).

Before Judges Fisher, Sumners and Moynihan.

The opinion of the court was delivered by

SUMNERS, J.A.D.

The trial court granted summary judgment to defendants R & M Tagliareni, LLC and Robert & Maria Tagliareni, II, LLC, landlord and property manager, respectively, of a multi-family apartment building, determining that they did not owe a duty of care to plaintiff J.H. (Jimmy), who at the time was an infant staying in one of defendants' apartments with the tenant's consent, to protect him from the apartment's excessively-hot-uncovered radiator. We conclude that, under the circumstances of this case, the radiator was part of the building's heating system that defendants have control of under common law and N.J.A.C. 5:10–14.3(d), and should have been covered. We therefore reverse.

Jimmy, an infant by his guardian ad litem, A.R., and A.R., individually, appeal the summary judgment dismissal of their personal injury complaint. The action arose from the permanent scarring Jimmy received as an infant when he was tragically burned from an uncovered iron radiator in an apartment of a multi-dwelling building owned and managed by defendants. The motion judge determined defendants could not be held liable because they did not control the radiator and therefore owed no duty of care to Jimmy. Because we conclude that, under common law and N.J.A.C. 5:10–14.3(d), the radiator was part of the apartment's heating system subject to defendants' control, we reverse to allow a jury to determine whether defendants breached their duty owed to Jimmy, and if so, whether plaintiffs are entitled to damages.

I

In reviewing a ruling on a summary judgment motion, we do so de novo under the same Brill ² standard applied by the motion judge. Townsend v. Pierre, 221 N.J. 36, 59, 110 A.3d 52 (2015). Thus, we consider, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406, 98 A.3d 1173 (2014) (citation omitted). "If there is no genuine issue of material fact, we must then ‘decide whether the trial court correctly interpreted the law.’ "

DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333, 64 A.3d 579 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478, 64 A.3d 536 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512–13, 984 A.2d 872 (2009) ).

When the accident occurred, Jimmy was about nine months old, under the care of his father J.H., Sr. (James) and his step-mother V.H. (Vera), staying in an apartment rented by L.C. (Linda), Vera's sister. At some point in the early morning hours, Jimmy had awakened while sleeping in a car seat, so his father took him to the bedroom and placed him in a bed to sleep with his ten-year-old step-sister, after swaddling him in blankets to prevent him from falling off the bed. The bed was adjacent to a steam-heated iron radiator. The next morning, Jimmy's step-sister discovered Jimmy lying on the floor with his head pressed against the hot radiator. After being freed, Jimmy was rushed to the hospital where it was determined he had third-degree burns over three percent of his body surface—head, right cheek and left arm.³ At the time of the motion, over five years later, the burns had resulted in permanent scarring.

Due to the seriousness of Jimmy's injury, the Hudson County Prosecutor's Office's (HCPO) investigated. Their investigation revealed that the steam heat flowing into the radiator was turned on and off from a shut-off valve at its base, and that within approximately two minutes of opening the valve, the cool radiator became so hot that it was unbearable to touch. The heat flowing to the radiator could only be manually turned on or off at the shut-off valve; there was no thermostat control in the apartment or bedroom to stop or regulate the heat into the radiator when the room reached a set temperature.

Jimmy's mother, A.R., filed suit against defendants alleging their negligence was responsible for his injuries. In turn, a third-party complaint was filed against James, Vera and Linda contending they were in control of the apartment's heating system and failed to protect Jimmy. During the ensuing discovery, the apartment building's superintendent testified at deposition that the boiler, which supplies heat to the apartments' radiators, was located in a locked room in the building's basement under defendants' exclusive control and was not accessible by the tenants. He noted that some tenants had covers on their radiators when he started working in the building fifteen years ago. Robert Tagliareni, a stakeholder in both R & M Tagliareni, LLC and Robert & Maria Tagliareni, II, LLC, stated in his deposition that defendants did not provide covers for the apartments' radiators nor were they ever asked to do so. An inspector with the Department of Community Affairs (DCA) testified the apartment building's radiators were not in violation of any state law; he was never trained that N.J.A.C. 5:10–14.3(d), which governs heating systems in multi-family dwellings, required radiators be protected with covers.

Following discovery, defendants were granted summary judgment dismissing all claims against them based upon their argument that they could not be held liable for Jimmy's injuries because they owed him no duty under common law or state regulation governing multi-family dwellings to cover the apartment's radiator that caused his burns. The judge denied plaintiffs' motion for reconsideration finding there was no demonstration that the grant of summary judgment was based upon a palpably incorrect or irrational grounds or did not appreciate the significance of probative, competent evidence. Palombi v. Palombi, 414 N.J. Super. 274, 288, 997 A.2d 1139 (App. Div. 2010).

II

To sustain a negligence action, a plaintiff must prove there was a duty of care that was breached, which was the proximate cause of injury. D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579, 29 A.3d 1112 (App. Div. 2011). In granting defendants' summary judgment, the motion judge rejected plaintiffs' argument that defendants had a duty of care under common law and N.J.A.C. 5:10–14.3(d), to ensure that the radiator could be operated in a safe manner, and to cover it in order to protect tenants and their guests from its heat.

In her common law analysis, the judge's oral opinion provided that "defendants[ ] did not have either actual or constructive notice of the condition[, of the extremely hot radiator,] that caused [Jimmy's] injury, and as such, do not owe ... a common law duty of care to [Jimmy]." In citing defendants' arguments, it appears the judge relied upon their assertions that there were no complaints about the radiator getting too hot; that the radiator was not cited for any code violation by state inspectors; that the radiator heat was controlled by the apartment occupants through the shut-off valve; and that they were not aware that children were staying in Linda's apartment. The judge added that Jimmy was not a tenant, and that the shut-off valve to the radiator's heat was controllable by the tenants. Consequently, the judge did not reach the issue of whether there were superceding causes of Jimmy's injury. We disagree with these legal conclusions.

It is well-settled that a landlord has a common law duty to exercise reasonable care to keep the premises in a reasonably safe condition to guard against foreseeable dangers arising from the use of the premises. Scully v. Fitzgerald, 179 N.J. 114, 118, 843 A.2d 1110 (2004) ; Coleman v. Steinberg, 54 N.J. 58, 63, 253 A.2d 167 (1969). Foreseeability of an unreasonable risk of harm to the reasonable person is the crucial factor in determining whether a duty exists. Trentacost v. Brussel, 82 N.J. 214, 223, 412 A.2d 436 (1980). Hence, a landlord's duty arises when foreseeable harm exists that falls within the landlord's control. Scully, 179 N.J. at 123, 843 A.2d 1110. Our courts have thus recognized numerous circumstances where a duty to exercise reasonable care exists to prevent foreseeable danger. See, e.g., id. at 126–27, 843 A.2d 1110(ruling there is a duty to guard against the risk of fire); Trentacost, 82 N.J. at 223, 412 A.2d 436 (recognizing a duty to ensure "adequate security against foreseeable criminal conduct"); Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 55, 650 A.2d 376 (App. Div. 1994) (acknowledging a duty to properly install and maintain window screens). A landlord's duty of care to protect a tenant extends to people who are in the premises with the tenant's consent. See Faber v. Creswick, 31 N.J. 234, 238–42, 156 A.2d 252 (1959) (concluding that a landlord may be liable for personal injuries sustained by the tenant or anyone entering the leased premises under the tenant's right when the injuries were caused by the landlord's breach of a duty to repair); Anderson, 278 N.J. Super. at 54, 650 A.2d 376 (providing that the landlord's duty of care in making a repair to the...