Meier v. D'ambose

• Decision Date: 28 April 2011
• Citation: Meier v. D'ambose, 419 N.J.Super. 439, 17 A.3d 271 (N.J. Super. 2011)
• Parties: Theresa MEIER, as Administratrix Ad Prosequendum of the Estate of Ralph Ciccone, and Theresa Meier, Individually, Plaintiff–Appellant,v.Pasquale D'AMBOSE,1 Defendant–Respondent.
• Court: New Jersey Superior Court

419 N.J.Super. 439

17 A.3d 271

Theresa MEIER, as AdministratrixAd Prosequendum of the Estate of Ralph Ciccone, and Theresa Meier, Individually, Plaintiff–Appellant,

v.Pasquale D'AMBOSE,1Defendant–Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 10, 2010.Decided April 28, 2011.

David P. Affinito, Orange, argued the cause for appellant(Dell'Italia Affinito & Santola, attorneys; Mr. Affinito, on the brief).Edward L. Thornton argued the cause for respondent(Methfessel and Werbel, attorneys; Mr. Thornton, of counsel and on the brief; Amanda J. Schmesser, Edison, on the brief).Before Judges FUENTES, GILROY and ASHRAFI.

The opinion of the court was delivered by

ASHRAFI, J.A.D.

PlaintiffTheresa Meier, individually and as the representative of the estate of her brother, Ralph Ciccone, appeals from an order of the Law Division dismissing by summary judgment her negligence and wrongful death complaint.The issue presented is whether the owner-landlord of a single-family residence had a duty to the tenant to maintain, and thus periodically inspect, the furnace to prevent a hazardous condition.We hold that he did and therefore reverse the Law Division's order and remand the matter for trial.

Ralph Ciccone died of smoke inhalation from a fire on December 10, 2006, at the house he was renting from defendantPasquale D'Ambose.Viewed most favorably to plaintiff, seeR. 4:46–2(c);Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 540, 666 A.2d 146(1995), the evidence presented in defendant's summary judgment motion revealed the following facts.

Defendant was the owner of a single-family house in Neptune City, which he purchased in 1998 for investment purposes.At the time of the fire, the house had the same furnace that was in place when defendant purchased the property.During the intervening eight years, defendant never had the furnace inspected and only arranged for its repair on one occasion.

Two different tenants occupied the property before Ciccone.In December 2003, defendant and Ciccone executed a written lease for use and occupancy of the entire premises.At the time that Ciccone first began his tenancy, defendant had the property inspected by the municipality and received a certificate of occupancy.

The lease required Ciccone to “take good care of the House and all equipment and fixtures in it” and specifically, to “keep the furnace clean.”The furnace was located in a crawl space under the floor in front of the bathroom entrance and could be seen through an open grate.Defendant testified at deposition that one could keep the furnace clean by “removing the grate and vacuuming, maybe”; there was no need to go down into the crawl space.A hatch cover in the kitchen and steps leading down provided access to the crawl space and the furnace.Defendant had only been in the crawl space one time.

The lease required defendant, as the landlord, to “make any necessary repairs and replacements to the vital facilities serving the House within a reasonable time after notice by the Tenant.”Furthermore, the lease granted defendant“access to the House on reasonable notice to the Tenant” to “inspect the House” and to “make necessary repairs, alterations, or improvements.”Defendant conceded at deposition that, under the terms of the lease, it was his responsibility rather than Ciccone's to repair the furnace.

On one occasion during the tenancy, approximately one year before the fire, Ciccone complained that the home did not have heat.In response, defendant hired a person by the name of Charlie to check the furnace.Defendant recalled Charlie coming to the house one time, and replacing a thermal coupling on the furnace, which was located “on the bottom of the furnace in the crawl space” and could not be accessed by taking off the grate cover.Defendant could not recall Charlie coming to the home on any other occasion to inspect or repair the furnace.In addition, he did not have a service contract with any company for routine maintenance or inspection of the furnace.

On the morning of December 10, 2006, a neighbor called 911 and emergency responders were dispatched to the house.Ciccone was removed from the house and transported to a hospital, where he was pronounced dead in the emergency room.Following an autopsy, the Monmouth County Medical Examiner listed the cause of death as “smoke inhalation due to a house fire.”

The Monmouth County Fire Marshall's Office indicated in a written report that the fire was “considered accidental in nature.”The report concluded that “the fire origin was located in the crawl space, center of the hallway” and that “[a] malfunction of the natural gas fired furnace could not be ruled out as to the possible cause of this fire.”

Plaintiff subsequently engaged an independent company, Fire and Risk Engineering, to investigate and analyze the fire.In a written report, professional engineer Robert Malanga concluded that “[t]he Fire was caused by improper operation of the Floor Furnace; specifically, as due to the continued existence of a severely deteriorated Flue Connector.”This flue pipe connected the exhaust outlet for the furnace to an exterior chimney.In explaining how the deterioration of the pipe led to the fire, Malanga's report stated:

[t]he severe and thorough degradation, and thus, absolute loss of integrity of the Flue Connector, resulted in inadequate draft, which precluded the Appliance from operating properly, efficiently or otherwise within the limitations of the Approval listing.In addition, this condition caused exhaust gases and products of combustion to be released into the Crawl Space immediately below the Residence.

Such improper and unsafe operating conditions also led to the emergence of a hostile flame, i.e., that would have extended outside of the combustion chamber, thereby exposing vulnerable components and the unprotected combustible construction within the Crawl Space.

Furthermore, Malanga concluded:

The advance deteriorated condition of the Flue Connector is clearly indicative of a failure to properly inspect, maintain, or otherwise service the Appliance....Even the most fleeting degree of visual inspection of the Floor Furnace and Flue Connector would have revealed the developing long-term degradation and attendant hostile flame conditions, as well as any ensuing, cumulative damage to the exposed combustible construction.

On this record, the Law Division granted summary judgment to defendant, concluding that defendant had not breached any duty owed to Ciccone.

On appeal, our standard of review from a granting of summary judgment is plenary.Because we review the same record as the trial court, we must determine for ourselves, without deference to the trial court's ruling, whether disputed issues of fact exist for determination by a jury.SeePrudential Prop. & Cas. Ins. Co. v. Boylan,307 N.J.Super. 162, 167, 704 A.2d 597(App.Div), certif. denied,154 N.J. 608, 713 A.2d 499(1998).We must “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.”Brill, supra,142 N.J. at 540, 666 A.2d 146.

A common law cause of action for negligence has four elements: (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages.Brunson v. Affinity Fed. Cred. Union,199 N.J. 381, 400, 972 A.2d 1112(2009).The plaintiff bears the burden of proving each of these elements.Ibid.

In the negligence context, “a duty is an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another.”Acuna v. Turkish,192 N.J. 399, 413, 930 A.2d 416(2007), cert. denied,––– U.S. ––––, 129 S.Ct. 44, 172 L.Ed.2d 22(2008).Whether a duty of care exists with respect to a particular plaintiff“is generally a matter for a court to decide.”Ibid.

In Hopkins v. Fox & Lazo Realtors,132 N.J. 426, 625 A.2d 1110(1993), the Court discussed the common law history of a landowner's duty to prevent a hazardous condition or to warn those on the land.For many years, the common law focused on property rights and determined the scope of a landowner's duties according to the status of the injured person as a business invitee, a social guest, or a trespasser.Id. at 433–34, 625 A.2d 1110.More recent development of the law, however, has approached the question more flexibly and with fact-sensitive consideration of public policy and fairness.Id. at 435–41, 625 A.2d 1110.To determine whether the owner of property had a duty in particular circumstances to the injured person, a court must examine such factors as “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.”Id. at 439, 625 A.2d 1110;accordAcuna, supra,192 N.J. at 414, 930 A.2d 416;Carvalho v. Toll Bros. & Developers,143 N.J. 565, 573, 675 A.2d 209(1996).

In this case, the trial court reasoned that defendant had satisfied any duty of care owed to Ciccone by having the municipality inspect the property at the beginning of the tenancy, and by hiring a repairman to fix the furnace in response to the only complaint by Ciccone involving the furnace.The court characterized the deteriorated flue pipe as a “latent defect” for which defendant was not responsible because he had no notice of the defective condition.Relying on Patton v. Texas Co.,13 N.J.Super. 42, 80 A.2d 231(App.Div.), certif. denied,7 N.J. 348, 81 A.2d 522(1951), andSzeles v. Vena,321 N.J.Super. 601, 729 A.2d 1064(App.Div.), certif. denied,162 N.J. 129, 741 A.2d 97(1999), the trial court held as a matter of law that defendant did not have a duty to make periodic inspections of the furnace to discover any such...