Scully v. Fitzgerald

• Decision Date: 24 March 2004
• Citation: 179 N.J. 114,843 A.2d 1110
• Parties: Daniel SCULLY, Plaintiff-Respondent, v. William FITZGERALD, Defendant-Appellant.
• Court: New Jersey Supreme Court

843 A.2d 1110

179 N.J. 114

Daniel SCULLY, Plaintiff-Respondent, v. William FITZGERALD, Defendant-Appellant.

Supreme Court of New Jersey.

Argued November 5, 2003.

Decided March 24, 2004.

Anthony P. Pasquarelli, argued the cause for appellant (Sweet, Pasquarelli & Wiebalk, attorneys).

Michael R. Scully, Hackensack, argued the cause for respondent. Justice ALBIN delivered the opinion of the Court.

A landlord has a duty to keep areas within his control in a reasonably safe condition so as not to endanger the lives or property of his tenants. In this case, plaintiff, a commercial tenant, claims that defendant, his landlord, breached that duty because of the dangerous manner in which he maintained an open storage area with construction debris and refuse and because he should have been aware that tenants discarded cigarette butts in direct proximity to those flammable materials, creating a substantial fire hazard. Plaintiff contends that defendant's negligence was the proximate cause of a fire that destroyed his business property. The trial court dismissed plaintiff's complaint on summary judgment. The Appellate Division reversed. We agree that summary judgment should not have been entered in this case.

I.

In deciding whether a grant of summary judgment in favor of defendant is appropriate, we must view the evidence in the light most favorable to plaintiff's claim. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146, 156 (1995). Therefore, we present the facts from plaintiff's perspective.¹

Since 1988, plaintiff Daniel Scully operated a travel agency from a storefront that he leased in a one-story commercial building on Union Boulevard in Totowa. Attached to the back portion of that commercial structure was a two-story building that housed two apartments, one on each floor. In the rear of the first-floor apartment was a storage area over which hung a deck that extended from the second-floor apartment. Defendant William Fitzgerald owned both buildings.

On July 18, 1999, in the midst of a heat wave in which temperatures hovered between 90 and 100 degrees, a fire that started in the storage area spread and destroyed most of the apartment building. The attached commercial building was significantly damaged by smoke and water that was used by firefighters to extinguish the blaze. Plaintiff suffered a total loss of the office property in his leased premises, including furniture, computers, copy machines, and records, and was forced to relocate his business.

In the area where the fire started, defendant stored a gas engine lawn mower, a gas engine snow blower, gasoline, mulch, old papers and other refuse that had accumulated over time, construction debris, and garbage that was both in and out of trash cans. The storage area was not enclosed and was freely accessible to others. The second-floor tenants regularly smoked cigarettes on the deck above the storage area and discarded the butts in such a way that they landed in and near the storage area. Fire officials investigating the blaze found butts in that general area.

Allen Del Vecchio, the Chief of the Totowa Fire Department, investigated the fire and determined that it originated in the storage area. Although Chief Del Vecchio testified at deposition that he could not pinpoint the exact cause of the fire, he was able to eliminate several potential sources such as the building's air conditioning units, the lawn mower and snow blower, the electrical outlets and lights, and the mulch. Chief Del Vecchio stated that his best guess was that the fire started accidentally when a lit cigarette or match ignited loose debris in the storage area.

James C. Alvine, plaintiff's fire expert, concluded that the storage of construction materials, equipment containing gasoline, and various other combustibles in the "open and unsecured" storage area "created a hazardous condition to the building and its tenants." Alvine found that the condition of the storage area posed an "unreasonable risk of fire" that "could have been avoided or greatly reduced by properly securing the area and/or prohibiting smoking in the area." In his opinion, the failure to take those remedial steps was the proximate cause of the fire. A defense investigator, Brian Canova, also undertook an examination of the cause and origin of the fire. Canova concluded that "based on the physical evidence," the fire originated in the storage area and "the most probable cause of the fire [was] related to a human act."

Plaintiff alleged in a two-count civil complaint that he suffered loss of property and income as a result of defendant's negligent maintenance of the Union Boulevard property. Plaintiff also claimed that the loss of the use of the premises was a breach of the lease agreement.² Defendant moved for summary judgment on the ground that plaintiff failed to offer any proof that defendant negligently maintained the storage area.

The trial court granted defendant's motion on the basis that plaintiff failed to produce evidence to show that defendant violated a duty that was the proximate cause of plaintiff's damages. Plaintiff's expert did not identify a standard of care by reference to a building or fire code and, as a consequence, the court classified his conclusions as a net opinion. The court suggested that plaintiff could not prove his claim without identifying a code or engineering standard that was violated by the landlord, reasoning that "[w]e are all vulnerable to people walking along next to our property, flipping cigarettes on to our property," and that such circumstances "do[ ] not necessarily establish liability on the part of the landowner." Accordingly, the court concluded that plaintiff had not proven that defendant owed him a duty.

The Appellate Division, in an unpublished opinion, reversed the trial court's grant of summary judgment. The appellate panel stated that plaintiff was entitled to show that defendant had acted unreasonably in maintaining the storage area in light of defendant's knowledge that his tenants discarded cigarettes that threatened to ignite flammable materials. The trial court's holding that an expert's opinion was required to establish defendant's negligence was rejected by the panel, which found that the issues in dispute fell within the common knowledge of jurors. The panel held that plaintiff did not have to show that defendant violated a code or other regulatory standard provided that he could prove the breach of a duty of care owed to plaintiff that was the proximate cause of plaintiff's loss.

We granted certification, 176 N.J. 429, 824 A.2d 158 (2003), and now affirm the Appellate Division.

II.

A landlord has a duty to exercise reasonable care to guard against foreseeable dangers arising from use of those portions of the rental property over which the landlord retains control. Braitman v. Overlook Terrace Corp., 68 N.J. 368, 381, 346 A.2d 76, 83 (1975); Anderson v. Sammy Redd & Assoc., 278 N.J.Super. 50, 54, 650 A.2d 376, 378 (App.Div.), certif. denied, 139 N.J. 441, 655 A.2d 444 (1995); Ellis v. Caprice, 96 N.J.Super. 539, 547, 233 A.2d 654, 658 (App.Div.1967); see also Coleman v. Steinberg, 54 N.J. 58, 63-64, 253 A.2d 167, 170 (1969)

(recognizing landlords duty to use reasonable care to guard against hazards arising out of maintenance and operation of heating system); Skupienski v. Maly, 27 N.J. 240, 248, 142 A.2d 220, 224-25 (1958) (recognizing landlord's duty to maintain private walkway used by tenants and guests); Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48, 52, 301 A.2d 463, 465 (App.Div.),

aff'd p.c.o.b., 63 N.J. 577, 311 A.2d 1 (1973) (recognizing landlords duty to maintain water and heating pipes and electrical equipment under his control). That duty requires the landlord to maintain that property in a reasonably safe condition. Michaels v. Brookchester, Inc., 26 N.J. 379, 382, 140 A.2d 199, 200-01 (1958); Mayer v. Housing Auth. of Jersey City, 84 N.J.Super. 411, 417, 202 A.2d 439, 442 (App.Div.1964),

aff'd p.c.o.b., 44 N.J. 567, 210 A.2d 617 (1965).

We have found that a residential landlord has a legal duty to take reasonable security measures for tenant protection on the premises. Trentacost v. Brussel, 82 N.J. 214, 231, 412 A.2d 436, 445 (1980). For example, in Trentacost we upheld the liability of a landlord for the criminal attack of a tenant inside an apartment building located in a high-crime neighborhood because of the landlord's failure to place a lock on the building's entrance. Id. at 222-23, 412 A.2d at 440-41. That result followed because of the "landlord's failure to provide adequate security against foreseeable criminal conduct." Id. at 223, 412 A.2d at 441. A landlord also has a responsibility to take reasonable steps to curtail the dangerous activities of tenants of which he should be aware and that pose a hazard to the life and property of other tenants. Williams v. Gorman, 214 N.J.Super. 517, 523, 520 A.2d 761, 764-65 (App.Div.1986) (holding landlord's duty to protect tenant from foreseeable criminal acts of third party applies when third party is co-tenant). The landlord's duty arises when the harm is foreseeable and the landlord has sufficient control to prevent it. Braitman, supra, 68 N.J. at 382-83, 346 A.2d at 83-84.

In this case, we must address the specific circumstances that would trigger a landlord's duty to protect a tenant from the start or spread of a fire caused by another tenant or a stranger. Generally, we have held that a landowner may be liable for a fire started by a third party on his property if that property was kept in an unsafe and dangerous condition and the landowner did not take reasonable precautions to prevent the start or spread of the fire. B.W. King, Inc. v. Town of West New York, 49 N.J. 318, 327, 230 A.2d 133, 138 (1967); Menth v. Breeze Corp., 4 N.J. 428, 439-40, 73 A.2d 183, 188 (1950).

In Menth, supra, the defendant, a manufacturing company,...