J.H. and A.R. v. R & M Tagliareni, LLC (081128)(Hudson County and Statewide) ( 2019 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
J.H. v. R&M Tagliareni, LLC (A-6-18) (081128)
Argued March 26, 2019 -- Decided July 31, 2019
FERNANDEZ-VINA, J., writing for the Court.
The Court considers whether liability should be imposed on a landlord based on a
theory of regulatory responsibility over an apartment building’s heating system, or based
on a new common law duty to cover an apartment unit’s radiator with insulating material.
On March 30, 2010, a nine-month-old infant, J.H., suffered permanent scarring
when he was burned by an uncovered, free-standing cast iron loop radiator in an
apartment owned and managed by defendants R&M Tagliareni, LLC, and Robert &
Maria Tagliareni, II, LLC. J.H.’s father placed J.H. in a twin bed to sleep with his ten-
year-old stepsister. The bed did not have rails and was adjacent to a steam-heated
radiator that did not have a cover. The next morning, J.H. was discovered lying on the
floor with his head pressed against the hot radiator.
As a result of the seriousness of J.H.’s injuries, the Hudson County Prosecutor’s
Office launched a child abuse investigation. Detectives spoke with the building’s
superintendent, who explained that while the individual apartments were not equipped
with thermostat controls, the radiators in each room of the apartments could be shut off
by the tenants through valves located at the base of each radiator unit.
J.H. and his guardian ad litem filed suit, alleging defendants’ negligence was the
cause of J.H.’s injuries. At his deposition, Robert Tagliareni testified that none of his
tenants at the property were ever burned by coming into contact with a radiator, and none
ever asked for a radiator cover or complained about not having one. Tagliareni testified
that his building had been inspected both by state agencies and by insurance companies,
but he had never been cited for the absence of radiator covers.
Defendants’ apartment building is inspected by the Bureau of Housing Inspection,
part of the Department of Community Affairs (DCA), for compliance with the Hotel and
Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -28, and the Regulations for Maintenance
of Hotels and Multiple Dwellings, N.J.A.C. 5:10-1.1 to -29.1. Myles Pryor, an inspector
for the Bureau, inspected defendants’ apartment building and its individual units in 2010.
1
Pryor testified that he has seen radiators that do not have any sort of radiator cover
on them and that he would not issue a violation to a property owner for not having covers
on radiators. Based on his training as a housing inspector, Pryor testified that it is his
understanding that there is no requirement under the Hotel and Multiple Dwelling Law
that radiators be covered.
The trial court granted defendants’ motion for summary judgment, holding that
defendants did not owe a common law duty of care to place a cover on the apartment’s
radiator and were not required by a regulation that governs “heating systems” -- N.J.A.C.
5:10-14.3(d) -- to cover the radiator with insulating material. The Appellate Division
reversed, concluding that, under the common law, defendants maintained sufficient
control over the heat emanating from the radiator such that a duty of care was owed to
J.H. Regarding the regulatory issue, the Appellate Division concluded that plaintiffs
should be allowed to argue at trial that N.J.A.C. 5:10-14.3(d) imposed a duty of care upon
defendants, and that the duty was breached. The Court granted defendants’ petition for
certification. 235 N.J. 213 (2018).
HELD: The Court is unpersuaded that N.J.A.C. 5:10-14.3(d) imposes any regulatory
duty on landlords to cover in-unit radiators with insulating material or a cover. The
regulatory scheme provides no evidence of an express or implied intent to include
radiators as part of the “heating system” required to be insulated. Having concluded that
no such regulatory duty has been imposed, and because the tenants in this case
maintained exclusive control over the heat emanating from the radiator, the Court
declines to impose on landlords a new common law duty to cover all in-unit radiators.
1. Within the DCA, the Bureau of Housing Inspection administers the Hotel and
Multiple Dwelling Law, to which any multi-dwelling building containing three or more
apartments is subject. The Law confers broad authority upon the Commissioner of
Community Affairs to regulate the construction and maintenance of hotels and multiple
dwellings. N.J.S.A. 55:13A-7 (emphasis added) provides that “[a]ny . . . regulations
issued and promulgated by the [C]ommissioner pursuant to this section shall provide
standards and specifications for such maintenance materials, methods and techniques . . .
and such other protective equipment as the [C]ommissioner shall deem reasonably
necessary to the health, safety and welfare of the occupants or intended occupants of any
units of dwelling space in any hotel or multiple dwelling . . . .” The regulations therefore
define with the force of law, see N.J.S.A. 55:13A-7, -9(a), the minimum standards for
safety and habitability in multiple dwellings. (pp. 14-17)
2. At issue in this appeal is the application of a regulation contained in the Regulations
for Maintenance of Hotels and Multiple Dwellings, which provides as follows with
respect to an owner or landlord’s specific responsibility concerning the heating system:
“The heating system, including such parts as heating risers, ducts and hot water lines,
shall be covered with an insulating material or guard to protect occupants and other
2
persons on the premises from receiving burns due to chance contact.” N.J.A.C. 5:10-
14.3(d) (emphases added). And N.J.A.C. 5:10-14.7(a) (emphasis added) provides that the
heating system as herein defined shall be inspected annually.” On the other hand, the
regulatory scheme calls for in-unit inspections of dwellings only every five years.
N.J.A.C. 5:10-1.10(a)-(b). (pp. 17-18)
3. A plain reading of the text of N.J.A.C. 5:10-14.3(d) reveals that the DCA did not
include radiators in the regulation’s list of items that must be covered with insulating
material or a guard. Although “heating system” is not otherwise detailed, the list of what
it includes -- besides the unstated but obvious heating source itself -- mentions only
heating risers, ducts, and hot water lines. The items listed are all of a kind -- they are
beyond the control of the end user and are in the exclusive control of the landlord. Had
the DCA determined that radiators required covering, the agency possessed the
knowledge and expertise to include them in N.J.A.C. 5:10-14.3(d), and could have easily
done so. There is no cause to attribute the absence of the term “radiator” to anything
other than the DCA’s reasoned determination not to impose under this regulation any
requirement that radiators be covered. Even if the regulation were ambiguous, the canons
of construction lead to the same conclusion -- radiators need not be covered under
N.J.A.C. 5:10-14.3(d). If in-unit radiators are included in the definition of “heating
system,” the DCA would need to include radiators when inspecting annually under
N.J.A.C. 5:10-14.7. The trial court did not err in taking into account Pryor’s testimony
that he would not issue a violation for not having covers on radiators. (pp. 18-24)
4. Turning to the common-law claim, the Court notes that, in the landlord-tenant context,
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. The Appellate Division concluded that defendants maintained control over the
radiator, relying heavily on Coleman v. Steinberg, 54 N.J. 58 (1969). That reliance is
misplaced. The duty imposed in Coleman was to require insulation on a heating system’s
up-pipe -- which was below the control valve on that radiator such that the control valve
did not regulate its temperature. The Court thus found that the up-pipe was within the
landlord’s control. Here, the tenants’ radiator was equipped with a control valve that
allowed the tenants to regulate the heat emanating from the radiator. Unlike in Coleman,
the radiator’s control valve in this case allowed the tenants to determine whether the
radiator was on or off, and thus, whether the radiator was hot or cold. The heat
emanating from the radiator was therefore solely the result of the tenants’ decision to turn
on the radiator. That distinction factors into the analysis of fairness in the imposition of a
common law duty. Absent control over property or equipment, it violates a sense of
fairness to hold a landlord liable for harm caused by an item in the tenant’s control.
Noting that New York’s highest court has declined to impose a duty to cover radiators
and that experts in the regulatory area have likewise not imposed any such an obligation,
the Court reverses the holding of the Appellate Division judgment that found the
existence of a new common law duty. (pp. 24-34)
3
The judgment of the Appellate Division is REVERSED and the trial court’s
grant of summary judgment to defendants is REINSTATED.
CHIEF JUSTICE RABNER, dissenting, notes that, in the past decade,
thousands of individuals, many of them children, were injured from contact with hot
radiators. Landlords have a duty to use reasonable care to guard against foreseeable
hazards to tenants that arise from areas within the landlord’s control, Chief Justice
Rabner observes. More broadly, to assess whether a duty exists under the common law,
courts consider the relationship of the parties, the foreseeability and nature of the risk of
harm, the opportunity and ability to exercise care, and the public interest; they draw on
notions of fairness and common sense to conduct that fact-specific analysis. Based on
those principles, in Chief Justice Rabner’s view, landlords should have a duty to take
reasonable steps to prevent the serious harm that scalding hot radiators can cause. Chief
Justice Rabner notes that the DCA’s regulations on this point are not entirely clear but at
the very least do not preempt a common law duty of care.
JUSTICES LaVECCHIA, PATTERSON, SOLOMON, and TIMPONE join in
JUSTICE FERNANDEZ-VINA’S opinion. CHIEF JUSTICE RABNER filed a
dissent, in which JUSTICE ALBIN joins.
4
SUPREME COURT OF NEW JERSEY
A-6 September Term 2018
081128
J.H., an infant by his
Guardian Ad Litem, A.R.,
and A.R., individually,
Plaintiffs-Respondents,
v.
R&M Tagliareni, LLC, Robert &
Maria Tagliareni, II, LLC,
Defendants-Appellants.
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.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
454 N.J. Super. 174 (App. Div. 2018).
Argued Decided
March 26, 2019 July 31, 2019
1
Danielle M. Hughes argued the cause for appellants
(Koster, Brady & Nagler, attorneys; Danielle M. Hughes,
on the briefs).
John E. Molinari argued the cause for respondents
(Blume, Forte, Fried, Zerres & Molinari, attorneys; John
E. Molinari and Alexa C. Salcito, on the brief).
Michael J. Epstein argued the cause for amicus curiae
New Jersey Association for Justice (The Epstein Law
Firm, attorneys; Michael J. Epstein, of counsel and on the
brief, and Michael A. Rabasca, on the brief).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal, the Court considers whether liability should be imposed
on a landlord based on a theory of regulatory responsibility over an apartment
building’s heating system, or based on a new common law duty to cover an
apartment unit’s radiator with insulating material.
On March 30, 2010, a nine-month-old infant, J.H., suffered permanent
scarring when he was burned by an uncovered, free-standing cast iron loop
radiator in an apartment that was owned and managed by defendants, R&M
Tagliareni, LLC, and Robert & Maria Tagliareni, II, LLC (collectively,
defendants).
2
On the night of the accident, J.H. was under the supervision of his father,
James,1 who placed J.H. in a twin bed that did not have railings. The bed was
adjacent to a radiator that did not have a cover. The next morning, J.H. was
discovered lying on the floor with his head pressed against the hot radiator.
J.H. was then rushed to a hospital where it was determined that he had third-
degree burns on his head, right cheek, and left arm.
J.H. and his guardian ad litem, A.R., acting both on behalf of J.H. and
individually (collectively, plaintiffs), filed suit against defendants alleging that
their negligence was responsible for J.H.’s injuries. Following discovery, the
trial court granted defendants’ motion for summary judgment, holding that
defendants did not owe a common law duty of care to place a cover on the
apartment’s radiator. The trial court further held that, based on a plain reading
of N.J.A.C. 5:10-14.3(d), radiators are not encompassed by the term “heating
system” and, as a result, the regulation did not require defendants to cover the
radiator with insulating material.
The Appellate Division reversed the trial court’s summary judgment
ruling, concluding that, under the common law, defendants maintained
sufficient control over the heat emanating from the radiator such that a duty of
care was owed to J.H. as a guest staying in the apartment. According to the
1
“James” is a pseudonym used in this opinion to protect the identity of J.H.
3
Appellate Division, whether that duty was violated was a question for a jury to
consider. Regarding the regulatory issue, the Appellate Division concluded
that plaintiffs should be allowed the opportunity to argue at trial that N.J.A.C.
5:10-14.3(d) imposed a duty of care upon defendants to prevent the radiator
from burning J.H., and that the duty was breached.
After considering the parties’ arguments, we are unpersuaded that
N.J.A.C. 5:10-14.3(d) imposes any regulatory duty on landlords to cover in-
unit radiators with insulating material or a cover. The regulatory scheme
provides no evidence of an express or implied intent to include radiators as
part of the “heating system” required to be insulated. Having concluded that
no such regulatory duty has been imposed, and because the tenants in this case
maintained exclusive control over the heat emanating from the radiator, we
decline to impose on landlords a new common law duty to cover all in-unit
radiators. We therefore reverse the judgment of the Appellate Division and
reinstate the trial court’s order granting summary judgment in favor of
defendants.
I.
A.
This action arises from the injuries nine-month-old J.H. suffered in a
Jersey City apartment managed and owned by defendants. At the time of the
4
accident, J.H. was under the supervision of his father, James, who was staying
at the apartment for the night. James’s estranged wife, V.H., lived in the
apartment along with her two daughters. At some point in the early morning
hours of March 30, J.H. awoke crying in the car seat he was sleeping in.
James removed J.H. from the car seat and placed him in a twin bed to sleep
with his ten-year-old stepsister.
J.H. was swaddled in blankets to prevent him from falling out of the bed,
which did not have rails. The bed was adjacent to a steam-heated cast iron
loop radiator. Later that morning, at approximately 6:30 a.m., J.H.’s stepsister
found him lying on the floor with his head pressed against the radiator. J.H.
was immediately taken to the hospital, where it was determined that he had
third-degree burns on his head, right cheek, and left arm, which resulted in
permanent scarring. Dr. Hani Mansour advised that due to the severity of
J.H.’s burns, J.H. had to have been in direct contact with the radiator for “an
extended period of time.”
As a result of the seriousness of J.H.’s injuries, the Hudson County
Prosecutor’s Office investigated the apartment as part of a child abuse
investigation. While observing the radiator, Detective Andrew Dellaquila
noticed a piece of dried skin and dark colored hairs attached to the exterior of
the radiator. Thereafter, the investigating detectives spoke with the building ’s
5
superintendent, Francisco Nieves. Nieves escorted Detective Dellaquila down
to the basement to show him the boiler room, which was locked and under the
exclusive control of defendants. Nieves explained that while the individual
apartments were not equipped with thermostat controls, the radiators in each
room of the apartments could be shut off by the tenants through valves located
at the base of each radiator unit.
Police officers arrested James, and he subsequently pled guilty to fourth -
degree child abuse or neglect, contrary to N.J.S.A. 9:6-1 and -3.
B.
On October 7, 2014, plaintiffs filed suit against defendants, alleging
defendants’ negligence was the cause of J.H.’s injuries. Defendants denied the
allegations and also filed a third-party complaint against James, V.H., and
Linda -- V.H.’s sister2 -- claiming that they, as tenants, had control over the
apartment’s heating and were therefore responsible for J.H.’s injuries.
At his deposition, Robert Tagliareni testified that none of his tenants at
the property were ever burned by coming into contact with a radiator, and none
ever asked for a radiator cover or complained about not having one. Further,
he said that he and his property managers never discussed putting covers on
2
Unbeknownst to defendants, V.H. was subletting the apartment from Linda.
6
radiators because he said he was never told he needed to do so. Tagliareni
testified:
I’m registered with the Department of Housing and
Economic Development in the State of New Jersey.
They come in every five years, go through the building
from top to bottom. They give you your registration
and green card, which I have. The City of Jersey City
has . . . been in the apartment from time to time. They
do inspections. Code Enforcement. I have never been
cited with that. I had inspections from insurance
companies, I never was cited with that.
Defendants’ apartment building is inspected by the Bureau of Housing
Inspection, part of the Department of Community Affairs (DCA), for
compliance with the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to
-28, and Regulations for Maintenance of Hotels and Multiple Dwellings,
N.J.A.C. 5:10-1.1 to -29.1. Myles Pryor, an inspector for the Bureau,
inspected defendants’ apartment building and its individual units in 2010.
Pryor testified at his deposition that in order to ensure that hotels and
multiple family dwelling units are properly maintained and do not pose a threat
to the health and safety of their inhabitants, the Bureau performs inspections
every five years. Pryor testified that during the course of his inspections he
has seen radiators that do not have any sort of radiator cover on them and that
he would not issue a violation to a property owner for not having covers on
radiators. Based on his training as a housing inspector, Pryor testified that it is
7
his understanding that there is no requirement under the Hotel and Multiple
Dwelling Law that radiators be covered.
The trial court granted defendants’ motion for summary judgment,
holding that defendants did not owe J.H. a common law duty to cover the
tenants’ radiator. Regarding the regulatory duty, the trial court determined
that radiators were not meant to be included in the term “heating system”
based on a plain reading of N.J.A.C. 5:10-14.3(d). Plaintiffs appealed.
The Appellate Division reversed the trial court’s decision, holding that
defendants owed J.H. a duty to cover the radiator because, “under [the]
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.” J.H. v. R&M
Tagliareni, LLC, 454 N.J. Super. 174, 178 (App. Div. 2018). The Appellate
Division concluded that a jury must be allowed “to determine whether
defendants breached their duty owed to [J.H.].” Ibid.We granted defendants’ petition for certification. 235 N.J. 213 (2018).
This Court also granted the New Jersey Association for Justice (NJAJ) leave to
appear as amicus curiae.
8
II.
A.
Defendants argue that the Appellate Division erred in determining that
N.J.A.C. 5:10-14.3(d) requires landlords to cover all radiators, and that the
Appellate Division’s interpretation of the regulation “imposes a never before
articulated duty on landlords.” In support of their argument, defendants assert
that the DCA, “the very agency responsible for interpreting and enforcing the
Hotel and Multiple Dwelling [Law],” conducted mandatory inspections of
defendants’ building -- including all dwelling units -- and has repeatedly
issued certificates of inspection, indicating that defendants were in compliance
with the Regulations for Maintenance of Hotels and Multiple Dwellings, “both
before [and] after the subject accident.”
Defendants also argue that the Appellate Division’s interpretation of
“heating system” conflicts with the regulatory scheme, which reflects that the
DCA did not intend for the term “heating system” to include radiators.
If the [DCA] intended radiators to be part of the
“heating system” for the purposes of N.J.A.C. 5:10-
14.3(d), then it follows that radiators must also be
considered part of the “heating system” for purposes of
N.J.A.C. 5:10-14.7. In that case, all radiators in each
individual dwelling unit, as a part of the “heating
system,” would require an annual inspection pursuant
to N.J.A.C. 5:10-14.7. However, it is undisputed that
the [DCA] does not inspect individual dwelling units on
an annual basis. Rather, individual dwelling units and
9
whatever radiators they may contain, are only inspected
every five years pursuant to N.J.A.C. 5:10-1.10.
Next, defendants contend the Appellate Division erred in holding that
defendants retained exclusive control over the heat emanating from the
tenants’ radiator and therefore owed J.H. a common law duty with respect to
the radiator. Defendants maintain that while landlords do provide heat to
tenants -- as required by law -- the landlord does not control the amount of
heat emanating from a tenant’s individual radiator. According to defendants,
the radiator in this case was equipped with a valve that was used by the tenants
to control the heat coming into their apartment.
Defendants conclude that the radiator in this case “was simply being
used for the only purpose for which it was intended[,] and holding landlords
liable for a parent’s failure to properly supervise an infant is tantamount to
making the landlord an insurer of the property, which is clearly contrary to
well-settled public policy.”
B.
Plaintiffs argue the Appellate Division properly concluded that the
phrase “heating system” in N.J.A.C. 5:10-14.3(d) encompasses radiators in
apartment buildings. Although plaintiffs concede that N.J.A.C. 5:10-14.3(d)
does not define the term “heating system,” plaintiffs contend “it is clear that
the term ‘system’ encompasses all items relating to the functionality of the
10
heating system.” Plaintiffs further argue that “[a]lthough the list included in
the regulation [does] not specifically state the word ‘radiator,’ the language of
the statute does not indicate that the provided list [is] exclusive, and thus, the
list is not exhaustive.” Plaintiffs assert that the DCA’s failure to cite
defendants for violating N.J.A.C. 5:10-14.3(d) is “neither dispositive nor
relevant,” and that “[p]lacing considerable weight on the [DCA’s] failure to
issue a violation and one employee’s testimony would produce a result that
isn’t at all verifiable.”
Regarding the issue of common law duty, plaintiffs assert that the
Appellate Division was correct in holding that defendants, not the tenants,
maintained control over the radiator’s temperature. Plaintiffs argue that their
radiator’s shut-off valve “does not control the temperature of the heat
emanating from [the] radiator; only a thermostat can control the specific
temperature setting of a radiator.”
In support of their position, plaintiffs cite to Coleman v. Steinberg, in
which the landlord supplied heat to all tenants of the house “through a single-
control heating unit,” and this Court held that the landlord therefore “must be
deemed to have retained control of the entire system . . . such as the pipes
leading from the furnace throughout the building and connecting with the
radiators in the rented apartments.” 54 N.J. 58, 63-64 (1969). Plaintiffs assert
11
that, “[s]imilarly, the [defendants] here retained control over the entire heating
system because the temperature of the radiator[] stemmed from the building’s
boiler, which was outside of the [tenants’] control.” As such, plaintiffs
contend that “it would be illogical to conclude that [defendants] did not retain
control of the radiator at the time of the incident.”
C.
The arguments presented by NJAJ are similar to those offered by
plaintiffs. NJAJ asserts that this Court “should affirm the [A]ppellate
[Division]’s determination that N.J.A.C. 5:10-14.3(d) imposes a duty of care
on landlords to cover radiators.” NJAJ argues that “the enactment’s plain
language and the available extrinsic evidence of the purposes and objectives of
the Act and Regulations support the [A]ppellate [Division]’s findings that
N.J.A.C. 5:10-14.3(d) applies to radiators and imposed a duty of care on
defendants.” NJAJ asserts that N.J.A.C. 5:10-14.3(d)’s focus is to protect the
health and welfare of the residents of New Jersey and that the Appellate
Division’s inclusion of radiators within its purview “undoubtedly advances the
objectives of the Act and Regulations.”
Regarding the alleged common law duty owed by defendants, NJAJ
contends that this Court “should clarify and reaffirm a landlord’s well-settled
common law dut[ies] to exercise reasonable care[,] to prevent reasonably
12
foreseeable harm[,] and to properly maintain and operate common elements.”
Like plaintiffs, NJAJ relies on this Court’s holding in Coleman.
III.
“In reviewing a grant of summary judgment, we ‘apply the same
standard governing the trial court -- we view the evidence in the light most
favorable to the non-moving party.’” Qian v. Toll Bros. Inc., 223 N.J. 124,
134-35 (2015) (citation omitted). Summary judgment must be granted if
“there is no genuine issue as to any material fact challenged and . . . the
moving party is entitled to a judgment or order as a matter of law.” R. 4:46-
2(c).
“If there exists a single, unavoidable resolution of the alleged disputed
issue of fact, that issue should be considered insufficient to constitute a
‘genuine’ issue of material fact for purposes of Rule 4:46-2.” Brill v.
Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). “While ‘genuine’ issues of
material fact preclude the granting of summary judgment, those that are ‘of an
insubordinate nature’ do not.” Id. at 530 (first quoting R. 4:46-2; then quoting
Judson v. Peoples Bank & Tr. Co. of Westfield, 17 N.J. 67, 75 (1954)). As
such, “where the party opposing summary judgment points only to disputed
issues of fact that are ‘of an insubstantial nature,’ the proper disposition is
summary judgment.” Id. at 529 (quoting Judson, 17 N.J. at 75).
13
In deciding whether the Appellate Division appropriately reversed the
trial court’s order granting defendants’ motion for summary judgment, we are
tasked with determining whether radiators are part of a multiple dwelling
building’s “heating system” that N.J.A.C. 5:10-14.3(d) requires to be covered
with insulating material or a guard. We must also determine whether
defendants in this case maintained control over the tenants’ radiator such that
defendants owed J.H. a duty under the common law to cover the radiator with
insulating material. We address the scope of the regulation first.
IV.
A.
By way of background, “[t]he [DCA] is a State agency created to
provide administrative guidance, financial support and technical assistance to
local governments, community development organizations, businesses and
individuals to improve the quality of life in New Jersey.” About DCA,
https://www.nj.gov/dca/about/index.html (last visited July 29, 2019). Within
the DCA, the Bureau of Housing Inspection administers the Hotel and Multiple
Dwelling Law, N.J.S.A. 55:13A-1 to -28.3
3
According to its website, “[t]he Bureau is responsible for ensuring that hotels
and multiple-family buildings of three or more dwelling units operating within
the State of New Jersey are properly maintained and do not pose a threat to the
health, safety and welfare of their residents, nor the community in general.”
14
Any multi-dwelling building containing three or more apartments is
subject to the Hotel and Multiple Dwelling Law and its Regulations for
Maintenance of Hotels and Multiple Dwellings. N.J.A.C. 5:10-1.1 to -29.1;
N.J.S.A. 55:13A-3(k). Enacted in 1967, the Hotel and Multiple Dwelling
Health and Safety Law, now known as the Hotel and Multiple Dwelling Law,
superseded the Tenement House Act and “provide[d] stronger and more
detailed measures than the [Tenement House Act] for the protection of
tenants.” Trentacost v. Brussel, 82 N.J. 214, 230 (1980) (citing Braitman v.
Overlook Terrace Corp., 68 N.J. 368, 383 (1975)). The Hotel and Multiple
Dwelling Law was
[d]eemed and . . . declared remedial legislation
necessary for the protection of the health and welfare
of the residents of this State in order to assure the
provision therefor of decent, standard and safe units of
dwelling space, [and] shall be liberally construed to
effectuate the purposes and intent thereof.
[N.J.S.A. 55:13A-2.]
“The Hotel and Multiple Dwelling Law confers broad authority upon the
Commissioner of Community Affairs to regulate the construction and
maintenance of hotels and multiple dwellings.” Rothman v. Dep’t of Cmty.
Affairs, 226 N.J. Super. 229, 231 (App. Div. 1988). “Most significant is the
Bureau of Hous. Inspection, https://www.state.nj.us/dca/divisions/codes
/offices/housinginspection.html (last visited July 29, 2019).
15
Legislature’s delegation of power to the State Commissioner of Community
Affairs to promulgate comprehensive and detailed regulations concerning the
condition of a multiple dwelling.” Trentacost, 82 N.J. at 230. Pursuant to the
Hotel and Multiple Dwelling Law, the Commissioner of the DCA is authorized
to
issue and promulgate . . . such regulations as the
[C]ommissioner may deem necessary to assure that any
hotel or multiple dwelling will be maintained in such
manner as is consistent with, and will protect, the
health, safety and welfare of the occupants or intended
occupants thereof, or of the public generally.
Any such regulations issued and promulgated by the
[C]ommissioner pursuant to this section shall provide
standards and specifications for such maintenance
materials, methods and techniques . . . and such other
protective equipment as the [C]ommissioner shall deem
reasonably necessary to the health, safety and welfare
of the occupants or intended occupants of any units of
dwelling space in any hotel or multiple dwelling . . . .”
[N.J.S.A. 55:13A-7 (emphasis added).]
“These ‘standards and specifications’ represent the [C]ommissioner’s
expert judgment that the given safeguards are ‘reasonably necessary to the
health, safety and welfare of the occupants or intended occupants of any . . .
multiple dwelling.’” Trentacost, 82 N.J. at 230 (quoting N.J.S.A. 55:13A-7).
“The regulations therefore define with the force of law, see N.J.S.A. 55:13A-7,
16
-9(a), the minimum standards for safety and habitability in ‘multiple
dwellings.’” Ibid.At issue in this appeal is the application of a regulation contained in the
Regulations for Maintenance of Hotels and Multiple Dwellings: N.J.A.C.
5:10-14.3(d). Section 14.3 generally addresses the standards of maintenance
for heating. Subsection (a) of the regulation requires “heating equipment,
facilities and system and all parts” to be “kept in good operating condition,
free of defects, corrosion and deterioration.” Heating equipment, undefined, is
addressed in subsections (b) and (c). However, subsection (d), which is at
issue here, provides as follows with respect to an owner or landlord’s specific
responsibility concerning the heating system:
The heating system, including such parts as heating
risers, ducts and hot water lines, shall be covered with
an insulating material or guard to protect occupants and
other persons on the premises from receiving burns due
to chance contact.
[N.J.A.C. 5:10-14.3(d) (emphases added).]
N.J.A.C. 5:10-14.7(a) further states:
The heating system as herein defined shall be
inspected annually. Such inspection shall be for the
following purposes:
1. To insure that the system is being maintained in
accordance with the standards applicable to the
system as of the time of installation;
17
2. To locate and remove hazards or conditions that
may, if not corrected, foreseeably develop into
hazards or become violations of these
regulations;
3. To confirm the ability of the system to fulfill
the heating requirements provided hereunder.
[ (emphasis added).]
Thus, the “heating system” requires insulation and requires inspection
access annually for safety and integrity maintenance purposes. On the other
hand, the regulatory scheme calls for in-unit inspections of dwellings only
every five years. N.J.A.C. 5:10-1.10(a)-(b).
B.
“When it establishes an administrative agency, the Legislature
‘delegate[s] the primary authority of implementing policy in a specialized area
to governmental bodies with the staff, resources, and expertise to understand
and solve those specialized problems.’” Commc’ns Workers of Am., AFL-
CIO v. N.J. Civil Serv. Comm’n, 234 N.J. 483, 514-15 (2018) (alteration in
original) (quoting Bergen Pines Cty. Hosp. v. Dep’t of Human Servs., 96 N.J.
456, 474 (1984)). We have recognized that the scope of judicial review of an
administrative regulation is therefore “highly circumscribed,” Lower Main St.
Assocs. v. N.J. Hous. & Mortg. Fin. Agency, 114 N.J. 226, 236 (1989), and a
18
reviewing court “will not substitute its judgment for the expertise of the
agency.” Dougherty v. Dep’t of Human Servs., 91 N.J. 1, 6 (1982).
A “regulation should be construed in accordance with the plain meaning
of its language and in a manner that makes sense when read in the context of
the entire regulation.” Medford Convalescent & Nursing Ctr. v. Div. of Med.
Assistance & Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985) (citation
omitted). “Whether construing a statute or a regulation, it is not our function
to ‘rewrite a plainly-written enactment,’ or to presume that the drafter intended
a meaning other than the one ‘expressed by way of the plain language.’” U.S.
Bank, N.A. v. Hough, 210 N.J. 187, 199 (2012) (quoting DiProspero v. Penn,
183 N.J. 477, 492 (2005)).
In this case, a plain reading of the text of N.J.A.C. 5:10-14.3(d) reveals
that the DCA did not include radiators in the regulation’s list of items that
must be covered with insulating material or a guard. Notably, although
“heating system” is not otherwise detailed, the list of what it includes --
besides the unstated but obvious heating source itself -- mentions only heating
risers, ducts, and hot water lines. Those consist solely of component parts
integrally related to the heating source and its conveyance of heat to the
individual dwelling units subject to the statutory and regulatory scheme.
Further, the items listed are all of a kind -- they are beyond the control of the
19
end user and are in the exclusive control of the landlord. Thus, the express,
and plain, language of the regulation reveals that the term “radiator” was
omitted from the regulation’s list. Further, the terms that are included describe
component parts with a fundamentally different functionality than a radiator.
Had the DCA determined that radiators required covering, the agency
possessed the knowledge and expertise to include them in N.J.A.C. 5:10-
14.3(d)’s language, and could have very easily done so. We see no cause to
attribute the notable absence of the term “radiator” to anything other than the
DCA’s reasoned determination not to impose under this regulation any
requirement that radiators be covered, unlike the identified heating system
parts such as ducts and hot water lines, which are required to be insulated. See
Hough, 210 N.J. at 199 (declining, when enforcing the plain language of a
regulation, to engage in “conjecture that will subvert [the regulation’s] plain
meaning”).
The dissent’s argument that the DCA did not seek to enter the case as
amicus fails to recognize that this Court did not request the DCA to provide its
expertise as we have done in numerous cases in the past. Post at ___ (slip op.
at 33-34).
20
C.
Having found that the plain language of N.J.A.C. 5:10-14.3(d) is
indicative of the DCA’s intent to exclude radiators from the list of items that
must be insulated or covered, we need not proceed further. However, even if
the regulation’s language were ambiguous, application of the canons of
construction leads to the same conclusion -- radiators need not be covered
under N.J.A.C. 5:10-14.3(d).
The Appellate Division held that the inclusion of a radiator “as part of
the apartment’s heating system is a logical and sensible interpretation of the
regulation’s fundamental purpose.” J.H., 454 N.J. Super. at 187. The
Appellate Division further held that the “[t]he regulation clearly seeks to
protect tenants and their guests from being burned [by] ‘chance contact’ with
parts of the heating system.” Ibid. The Appellate Division explained that
there is “no part of an apartment’s heating system that individuals are more
likely to be in contact with than the radiator,” and concluded that “as a matter
of law, plaintiffs can argue at trial that [N.J.A.C. 5:10-14.3(d)] impose[d] a
duty of care upon defendants to guard the radiator to prevent it from burning
[J.H.], and that the duty was breached.” Id. at 187-88. We disagree.
When assessing a regulation’s intent, “[t]he same rules of construction
that apply to the interpretation of statutes guide our interpretation of
21
regulations.” Headen v. Jersey City Bd. of Educ., 212 N.J. 437, 451 (2012)
(citing Hough, 210 N.J. at 199). “[A]n agency’s construction of a statute over
a period of years without legislative interference will under appropriate
circumstances be granted great weight as evidence of its conformity with the
legislative intent.” Malone v. Fender, 80 N.J. 129, 137 (1979). As this Court
explained in Cedar Cove, Inc. v. Stanzione,
[a]ssistance in interpreting a statute can also be derived
from the understanding of the administrative agency
charged with enforcing it. The meaning ascribed to
legislation by the administrative agency responsible for
its implementation, including the agency’s
contemporaneous construction, long usage, and
practical interpretation, is persuasive evidence of the
Legislature’s understanding of its enactment.
[122 N.J. 202, 212 (1991) (citations omitted).]
This “judicial deference to administrative agencies stems from the
recognition that agencies have the specialized expertise necessary to enact
regulations dealing with technical matters and are ‘particularly well equipped
to read and understand the massive documents and to evaluate the factual and
technical issues that . . . rulemaking would invite.’” Guild of Hearing Aid
Dispensers v. Long, 75 N.J. 544, 575 (1978) (quoting Bergen Pines Cty. Hosp.,
96 N.J. at 474); see also In re Election Law Enf’t Comm’n Advisory Op. No.
01-2008, 201 N.J. 254, 262 (2010) (holding that this Court “will defer to an
agency’s interpretation of both a statute and implementing regulation, within
22
the sphere of the agency’s authority, unless the interpretation is ‘plainly
unreasonable’”).
In this case, DCA inspector Myles Pryor testified that the Bureau
performs in-unit inspections every five years. On the other hand, the heating
system, which is the landlord’s responsibility, is required to be inspected
annually. N.J.A.C. 5:10-14.7(a). Thus, the regulatory agency, to which we
defer with respect to understanding the intent and scope of its own
requirements, is clearly mindful of, and obvious about, when it is imposing an
individual dwelling unit access requirement. If we were to conclude that in-
unit radiators are included in the definition of “heating system,” the DCA
would need to include radiators when inspecting under N.J.A.C. 5:10-14.7.
And, further, in promulgating the only amendment to the regulation in issue ,
the DCA was explicit and clear in acknowledging a new one-time upgrade
burden it was imposing through the Hotel and Multiple Dwelling rules. The
amendment had the effect of imposing an obligation on landlords that required
dwelling entry and retroactive modification to the heating units within existing
buildings. See 25 N.J.R. 4483 (Sept. 20, 1993) (explaining and clarifying,
upon adoption of subsection (e) of N.J.A.C. 5:10-14.3, the agency’s intent with
respect to the required retroactive modification of pressure relief valve
discharge pipes on dwellings’ heating units).
23
In our view, the trial court did not err when taking into account Pryor’s
testimony that he has seen uncovered radiators during inspections and would
not issue a violation to a property for not having covers on its radiators
because it is his understanding that there is no requirement for radiators to be
covered under the Hotel and Multiple Dwelling Law. Based on our own
review, that understanding is a fair reading of the regulation, which itself
supports that understanding. The regulations are consistent with and bolster
the testimony of Pryor.
In sum, in considering the summary judgment record presented and
taking into account the DCA’s legislatively assigned responsibility to promote
and enforce the statutory and regulatory scheme entrusted to it, we conclude
that radiators are not included in N.J.A.C. 5:10-14.3(d)’s definition of a
“heating system.” We therefore reverse the Appellate Division’s holding,
which recognized a regulatory duty owed by defendants under N.J.A.C. 5:10-
14.3(d).
V.
Having determined that defendants owed no regulatory duty to cover the
tenants’ radiator under N.J.A.C. 5:10-14.3(d), we now address whether
defendants maintained control over the tenants’ radiator such that the
defendants owed J.H. a duty under the common law.
24
As we have explained,
[t]he fundamental elements of a negligence claim are a
duty of care owed by the defendant to the plaintiff, a
breach of that duty by the defendant, injury to the
plaintiff proximately caused by the breach, and
damages. The issues of whether a defendant owes a
legal duty to another and the scope of that duty are
generally questions of law for the court to decide.
[Robinson v. Vivirito, 217 N.J. 199, 208 (2014)
(citations omitted).]
In the landlord-tenant context, “[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.” Scully
v. Fitzgerald, 179 N.J. 114, 121-22 (2004) (emphasis added). “That duty
requires the landlord to maintain that property in a reasonably safe condition.”
Id. at 122; see also Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50,
54 (App. Div. 1995) (“It is axiomatic that a landlord is under a common-law
duty to maintain premises under its control.” (citing Michaels v.
Brookchester, Inc., 26 N.J. 379, 382 (1958))). Therefore, “[t]he landlord’s
duty arises when the harm is foreseeable and the landlord has sufficient control
to prevent it.” Scully, 179 N.J. at 123 (citing Braitman, 68 N.J. at 382-83).
“This duty has been broadened over the years by the rejection of the
caveat emptor theory and the application of the . . . Hotel and Dwelling Act,
N.J.S.A. 55:13A-1 et seq.” Anderson, 278 N.J. Super. at 54. However, “[a]
25
landlord’s duty is not absolute. It is not an insurer for the safety of its
tenants.” Ibid.
At issue in this matter is whether defendants maintained control over the
subject radiator such that they owed J.H. a duty of care. The Appellate
Division concluded that defendants did maintain such control over the radiator,
relying heavily on this Court’s ruling in Coleman v. Steinberg to guide its
analysis. J.H., 454 N.J. Super. at 182-84. We find the reliance on Coleman to
be misplaced. The duty imposed by our Court in Coleman to require insulation
on a heating system’s up-pipe -- which was below the control valve on that
radiator such that the control valve did not regulate its temperature -- is fully
consistent with the approach taken in the regulatory duty analysis that we just
performed.
In Coleman, a one-year-old plaintiff suffered severe burns when his leg
was caught in between a wall and an uncovered, hot up-pipe. 54 N.J. at 61-62.
The trial court granted the landlords’ motion to dismiss, finding that there were
insufficient facts to establish a violation of a legal duty owed by the landlords
to the infant plaintiff. Id. at 62. The Appellate Division reversed, holding that
the landlords owed a duty to the tenants to maintain the exposed pipe in a
reasonably safe condition. Ibid.26
In its analysis, our Court in Coleman determined that when “the landlord
. . . provides certain facilities for the common use or benefit of all the tenants,
possession and control of such portions or facilities remain in him and do not
pass to the tenants.” Id. at 63. “In such situations the law imposes upon the
landlord the duty of maintaining [those portions] in a reasonably safe condition
for the use and enjoyment of the tenants,” and “[i]f he fails to do so and such
failure results in injury to the tenant or persons on the premises[,] . . .
ordinarily the landlord is liable for the injury.” Ibid.Applying those principles, the Coleman Court affirmed the Appellate
Division’s determination because it found that the up-pipe was within the
landlord’s control. The Court explained:
[S]ince the landlords supplied heat to both tenants of
the premises through a single-control heating unit, they
must be deemed to have retained control of the entire
system. That system included all of the portions thereof
which entered into its operation, such as the pipes
leading from the furnace throughout the building and
connecting with the radiators in the rented apartments.
Having retained that control, the landlords were under
a duty to use reasonable care to guard against hazards
to members of the tenants’ family, such as the infant
plaintiff, arising out of the maintenance and operation
of the system.
Since the child was burned by the exposed up-
pipe while he was crawling around the floor, the
Appellate Division majority concluded, and we agree,
that the jury could reasonably have found that a
dangerous condition existed in the heating system, and
27
that the defendants had failed to exercise reasonable
care to guard against that clearly foreseeable kind of
injury.
[Id. at 63-64 (emphases added) (citations omitted).]
The Coleman Court commented on the practice of covering heating
equipment as a safety precaution. Id. at 64. “We cannot close our eyes to the
commonplace fact that pipes like those involved here can be protected by a
covering or shield, and that a protective covering or shield is readily available
for the unit of pipe and radiator at modest cost.” Ibid. “[T]here is nothing in
the record to suggest that furnishing such protection would be unreasonably
burdensome.” Ibid. In support of its analysis, the Coleman Court cited to the
Hotel and Multiple Dwelling Law -- even though it was not applicable to the
facts of the case.4 According to the Court, the regulations promulgated under
the Hotel and Multiple Dwelling Law
reveal an awareness by an expert public agency of the
existence of a hazard presented by uncovered pipes
which are part of a central heating system maintained
by a landlord. It indicates also a conclusion by the
agency that imposition of the specified duty of covering
or guarding such pipes is not an arbitrary or
unreasonable one. And in our opinion it supports the
view that in the present case the evidence created a jury
4
Although the Hotel and Multiple Dwelling Law and its regulations for the
Maintenance of Hotels and Multiple Dwellings were in existence at the time
the accident occurred in Coleman, the Court did not apply the regulations to
the facts of the case because the landlords’ two-family house did not constitute
a multi-family dwelling subject to the regulations. See id. at 65.
28
question as to whether the exposed pipe constituted a
condition which was dangerous to the tenants and
members of their family and whether defendants were
negligent in permitting it to remain exposed and
without any protective covering or guard.
[Id. at 65 (emphases added) (citations omitted).]
A crucial factual distinction exists between the radiator in this case and
the up-pipe in Coleman. The temperature of the up-pipe that burned the
plaintiff in Coleman was not controlled by the shut-off valve in the tenant’s
radiator. Id. at 61. Here, the tenants’ radiator was equipped with a control
valve that allowed the tenants to regulate the heat emanating from the radiator.
The control valve was located on the base of the radiator, in the tenants ’
apartment, solely within the tenants’ control. The Appellate Division
conceded this in its opinion, noting that “[t]he shut-off valve . . . allows the
flow of heat to the radiator to be manually turned on or off.” Ibid. The
Appellate Division also offered the following noteworthy observation:
“Coleman notes that the landlord maintained control of the up-pipe because the
shut-off valve was located above the up-pipe, meaning the shut-off valve bore
no effect on the temperature of the uncovered up-pipe, which burned the
plaintiff.” Ibid. (emphasis added).
Unlike in Coleman, where the shut-off valve bore no effect on the
temperature of the up-pipe, the radiator’s control valve in this case allowed the
29
tenants to determine whether the radiator was on or off, and thus, whether the
radiator was hot or cold. The heat emanating from the radiator was therefore
solely the result of the tenants’ decision to turn on the radiator. That
distinction factors into the analysis of fairness in the imposition of a common
law duty. Absent control over property or equipment, it violates a sense of
fairness to hold a landlord liable for harm caused by an item in the tenant’s
control.
New York’s highest court confronted this exact issue in Rivera v. Nelson
Realty, LLC, where the Court of Appeals determined that “the landlord of a
home where children live does not have a common-law . . . duty to provide or
install radiator covers.” 858 N.E.2d 1127, 1127 (N.Y. 2006).
In that case, a three-year-old child was left unsupervised by his parents
as he played with his four and two-year-old brothers. Ibid. While
unsupervised, the child climbed onto an uncovered radiator in his parents’
bedroom and tragically endured serious burns. Ibid. In the months preceding
this accident, the child’s parents had asked the defendants -- the landlord and
property manager -- to provide radiator covers, but were denied on the grounds
of expense. Id. at 1127-28.
In reaching its ruling, the court noted that “[a]t common law, liability in
tort with respect to land and buildings generally depend[s] on occupation and
30
control; as a result, it [is] the tenant, not the landlord, who [is] generally held
responsible for injuries caused by the condition or use of leased premises.” Id.
at 1129 (quoting Ramos v. 600 W. 183rd St., 547 N.Y.S.2d 633, 635 (App.
Div. 1989)). The Court ultimately concluded that the common law does not
require landlords “to cover radiators in rented apartments where young
children live” and that “defendants [had therefore] breached no duty to
plaintiffs, and plaintiffs’ complaint was properly dismissed.” Id. at 1130.
We now are asked to expand our common law in a way that our sister
state has declined, thoughtfully, to do. And we are asked to do so when
experts in the regulatory area have not imposed any such an obligation. We
acknowledge that “[t]he power of growth is inherent in the common law.”
State v. Culver, 23 N.J. 495, 506 (1957). However, here we are being asked to
impose a duty beyond that which a regulatory scheme imposes, which would
result in an upending of settled expectations. Moreover, it is a duty that would
be imposed regardless of control. That combination militates against taking
this step in the common law’s development. 5
“This Court has carefully refrained from treating questions of duty in a
conclusory fashion, recognizing that, ‘[w]hether a duty exists is ultimately a
5
Our discussion reflects our view that the state of regulatory requirements
informs our decision and is a factor in judging whether to expand the co mmon
law.
31
question of fairness.’” Weinberg v. Dinger, 106 N.J. 469, 485 (1987)
(alteration in original) (quoting Kelly v. Gwinnell, 96 N.J. 538, 544 (1984)).
As this Court stated in Estate of Desir v. Vertus, “[i]n deciding whether to
recognize the existence of a duty of care, . . . [we] must bear in mind the
broader implications that will flow from the imposition of a duty.” 214 N.J.
303, 325-26 (2013).
In this case, defendants did not retain control over the subject radiator .
The tenants had a control valve on the radiator. But that was not sufficient
under the Appellate Division’s analysis -- the Appellate Division determined
that a thermostat or other device controlling the level of heat coming out of the
radiator is required to demonstrate that the tenant controlled the heat
emanating from the radiator. We do not impose this duty under the common
law. As was the case in Rivera, the facts of this case reveal that defendants did
not maintain control over the heat emanating from the tenants’ radiator; the
tenant did, and therefore defendants owed J.H. no duty to cover it with
insulating material.
Moreover, and as noted, defendants had no notice -- actual or
constructive -- that they were responsible for such devices. The previously
cited comments that were made in connection with the adoption of subsection
(e) of N.J.A.C. 5:10-14.3, at the time of the readoption of the rules pertaining
32
to the Hotel and Multiple Dwelling Law, offer insight into the typical
consultation that takes place when landlords are burdened with new
responsibilities. 25 N.J.R. 4483 (Sept. 20, 1993). At the hearing, a concern
was raised that the new requirement -- requiring landlords to connect pressure
relief valves to a discharging pipe -- was in conflict with existing requirements
of the statewide plumbing subcode of the UCC. Ibid. After considering this
problem, the DCA revised the new regulation. Ibid.The rules hearing contained ample discussion regarding the burdens
being imposed on landlords as to discharge pipes; there is no corresponding
discussion, anywhere in the history of the rule, evidencing a similar debate
about retrofitting radiators. A logical conclusion is that there was a consensus
that the regulation did not impose the duty regarding radiators that the
Appellate Division imposed here.
To be sure, it is not necessary for a regulatory body to impose a duty
before the common law can be expanded. But, in this instance, to expand the
common law to impose a duty on landlords to place covers on radiators --
without prior notice and where the regulatory agency responsible for policy
discussions on exactly this type of action and the consequences of such
expansion has not imposed such a requirement -- would be contrary to
concepts of fairness. In sum, we decline to expand the common law so as to
33
require landlords to cover radiators with insulating material. We therefore also
reverse the holding of the Appellate Division judgment that found the
existence of a new common law duty.
VI.
For the reasons stated herein, we reverse the judgment of the Appellate
Division and reinstate the trial court’s grant of summary judgment to
defendants.
JUSTICES LaVECCHIA, PATTERSON, SOLOMON, and TIMPONE join
in JUSTICE FERNANDEZ-VINA’S opinion. CHIEF JUSTICE RABNER filed a
dissent, in which JUSTICE ALBIN joins.
34
J.H., an infant by his
Guardian Ad Litem, A.R.,
and A.R., individually,
Plaintiffs-Respondents,
v.
R&M Tagliareni, LLC, Robert &
Maria Tagliareni, II, LLC,
Defendants-Appellants.
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.
CHIEF JUSTICE RABNER, dissenting.
In the past decade, thousands of individuals, many of them children,
were injured from contact with hot radiators. Of that large group, it is
estimated that more than ten thousand people were injured so seriously that
1
they sought treatment at emergency rooms. The burns are sometimes fatal.
And experience teaches us that unless precautionary steps are taken, people
will continue to suffer the same types of injuries year after year.
Landlords have a duty to use reasonable care to guard against
foreseeable hazards to tenants that arise from areas within the landlord’s
control. Coleman v. Steinberg, 54 N.J. 58, 63 (1969); Ellis v. Caprice, 96 N.J.
Super. 539, 547 (App. Div. 1967). More broadly, to assess whether a duty
exists under the common law, courts consider “the relationship of the parties,”
the foreseeability and nature of the risk of harm, “the opportunity and ability to
exercise care, and the public interest.” Hopkins v. Fox & Lazo Realtors, 132
N.J. 426, 439, 442-43 (1993). Courts “draw on notions of fairness [and]
common sense” when they conduct that fact-specific analysis. Id. at 443.
Based on those principles, landlords should have a duty to take
reasonable steps to prevent the serious harm that scalding hot radiators can
cause. A simple radiator cover, available at most home improvement stores
for a modest cost, can prevent the foreseeable risk that countless apartment
dwellers face. It can spare a child from being scalded and scarred.
Jimmy, 1 the nine-month-old child at the heart of this appeal, suffered
severe burns from a radiator on March 30, 2010. Jimmy’s father had placed
1
“Jimmy” is a fictitious name used to protect the child’s identity.
2
him in a twin bed to sleep beside his stepsister. The bed did not have rails and
was near a steam-heated cast-iron radiator. Hours later, the stepsister found
Jimmy on the floor, wedged between the radiator and the bed, with his head
pressed against the radiator.
Jimmy was rushed to the hospital. He had third-degree burns on his
head and left arm. The burns covered three percent of his body. Based on the
severity of the burns, a physician opined that Jimmy was probably in direct
contact with the radiator for an extended period of time. Detectives from the
Hudson County Prosecutor’s Office later found dried skin and hair attached to
the radiator. Jimmy, now a young boy, has permanent scarring.
Jimmy was injured in a rental apartment in Jersey City. The record
reveals that the landlord controlled the temperature of the steam coursing
through the radiators; the tenants did not. Tenants who can turn heat on or off
are hardly in control. On cold days, the choice to heat an apartment or sit in
the cold is hardly a choice at all, because heat is a necessity, not an option.
And when tenants turn the heat on, radiator burns are an entirely foreseeable
risk that can be protected against.
The Department of Consumer Affairs’ regulations on this point are not
entirely clear. At the very least, the regulations do not preempt a common law
3
duty of care that requires landlords to exercise reasonable care and prot ect
against foreseeable dangers.
In my view, a jury should decide if the common law duty was breached
here. I therefore respectfully dissent.
I.
The risk of danger tenants face in this area is readily understood: injury
from touching a radiator with scalding hot steam coursing through it.
Common sense alone tells us that type of risk is reasonably foreseeable and is
often severe enough to require emergency medical treatment. Adults and
children alike can be injured from contact with a hot cast-iron radiator. And
multiple studies conducted by well-respected government and private entities
confirm that day-to-day reality.2
2
Courts can take judicial notice of studies and statistics from suitable sources
under N.J.R.E. 201(b)(3) (“Facts which may be judicially noticed include . . .
specific facts and propositions of generalized knowledge which are capable of
immediate determination by resort to sources whose accuracy cannot
reasonably be questioned.”). This Court has done so many times. See, e.g.,
Lindquist v. City of Jersey City Fire Dep’t, 175 N.J. 244, 273 (2003); Planned
Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 640 (2000); State v. Terry,
430 N.J. Super. 587, 594 n.5 (App. Div. 2013), aff’d, 218 N.J. 224 (2014); see
also J.S. v. R.T.H., 155 N.J. 330, 341 (1998) (relying on U.S. Department of
Justice statistics as “empirical support for the conclusion that sexual abuse of a
child . . . is a risk that can be foreseen by a spouse”). On appeal, a “reviewing
court in its discretion may take judicial notice of any matter specified in Rule
201, whether or not judicially noticed by the judge.” N.J.R.E. 202(b).
4
The Centers for Disease Control and Prevention (CDC), the leading
national public health agency and a component of the U.S. Department of
Health and Human Services, reported on a study in 1996 that noted “an
estimated 1881 children visited emergency departments for treatment of burns”
from radiators in the United States in 1993. CDC, Home Radiator Burns
Among Inner-City Children -- Chicago, September 1991-April 1994, 45
Morbidity & Mortality Wkly. Rep. 814, 814 (1996).
The study also investigated home radiator burns suffered by ten children
treated in a single Chicago pediatric clinic in the early 1990s. Ibid. As in
Jimmy’s case, steam radiator systems were involved in at least eight of the
cases, and investigators determined that “the burns . . . were associated with
contact with uncovered radiators.” Ibid. The CDC noted that “[c]ontact with
temperatures in the range of steam radiators can cause an instantaneous full-
thickness burn of adult human skin” and that “[c]hildren’s skin is probably
more susceptible . . . to thermal injury.” Id. at 815. The CDC observed that
“[r]isks for burns from home radiators can be reduced by keeping the unit
covered and the pipes insulated.” Ibid.
Another study from the New York Hospital-Cornell Burn Center
revealed that, in the first five months of 1997, “[r]adiator burns accounted for
59% of pediatric contact burns seen at [the] institution.” A.M. O’Neill et al. ,
5
Radiator Burns: A Pediatric Dilemma, 19 J. of Burn Care & Rehabilitation
S156 (Jan. 1998), https://doi.org/10.1097/00004630-199801001-00044. The
study concluded that “[h]eating systems that use radiators pose a great hazard
to children under the age of 5” and, more generally, are “a major cause of
contact burn injuries.” Ibid. Based on a review of admissions to the Burn
Center, the study noted “a need for implementation of a prevention program on
the dangers of radiators.” Ibid.
Globally, “[i]n high-income countries, children under the age of five
years old are at the highest risk of hospitalization from burns,” and “[t]he
burns [infants] suffer are most commonly the result of scalds from cups
containing hot drinks or contact burns from radiators or hot-water pipes.”
World Health Organization, World Report on Child Injury Prevention 81
(Margie Peden et al. eds., 2008) (emphasis added); see also id. at 85 (“Infants
under the age of one year are in a particular category, as their mobility starts to
develop and they reach out to touch objects. Consequently, burns to the palms
of the hands are particularly common, as a result of touching heaters or hot -
water pipes.” (endnote omitted)); Kyran P. Quinlan, Injury Control in
Practice: Home Radiator Burns in Inner-City Children, 150 Arch. Pediatr.
Adolesc. Med. 954, 956-57 (1996) (“The exposure of a curious but unsteady
6
toddler to an uncovered steam radiator or uninsulated radiator pipe represents
an obvious hazard.”).
The U.S. Consumer Product Safety Commission -- a federal agency
“charged with protecting the public from unreasonable risks of injury or death
associated with the use of . . . consumer products,” About CPSC, U.S.
Consumer Prod. Safety Comm’n, https://www.cpsc.gov/About-CPSC -- has
also gathered data on injuries from radiators. The agency operates a system
known as the National Electronic Injury Surveillance System (NEISS), which
collects and publishes “data on consumer-product-related injuries.” NEISS
Frequently Asked Questions, U.S. Consumer Prod. Safety Comm’n,
https://www.cpsc.gov/Research--Statistics/NEISS-Injury-Data/Neiss-
Frequently-Asked-Questions. NEISS gathers data from a representative
sample of about 100 hospitals across the nation, from which it extrapolates the
number of injuries treated at the more than 5000 emergency departments at
hospitals in the United States. Ibid. The following statistics were generated
from the NEISS Online Database, https://www.cpsc.gov/cgibin/NEISSQuery/
home.aspx.3
3
Each query used the product code “Radiators (excluding Vehicle Radiators)
(379)” and included “Burns” for the diagnosis group.
7
In 2001, hospital emergency departments in the United States treated an
estimated 3000 burn injuries from building radiators.4 In the ten years from
2009 through 2018, emergency rooms treated an estimated 14,688 radiator
burns.5 In 2010, the year Jimmy was injured, an estimated 1312 individuals
sought treatment for radiator burns in hospital emergency rooms; the estimate
rose to 1738 for 2011.6
Although high, the data likely understates the problem because it does
not include radiator burns treated outside of a hospital emergency department
-- for example, at an urgent care facility, a doctor’s office, or at home.
4
U.S. Consumer Prod. Safety Comm’n, NEISS 1999-2018 Online Database,
https://www.cpsc.gov/cgibin/NEISSQuery/CaseDetail.aspx?JobId=4zRR2G7TyYy
WZKQDMTMUmA%3d%3d&Title=9OYR9kUytIsLilKZieD5xg%3d%3d&Outp
utFormat=9OYR9kUytIsLilKZieD5xg%3d%3d&Type=v0Dpcp2JcG93HTGffrG
MT6V6GBbmxC9Tf%2fM5FmggZ1M%3d&UserAff=CvbkBwSYvXoJ%2blc0Tf
zwdg%3d%3d&UserAffOther=9OYR9kUytIsLilKZieD5xg%3d%3d.
5
Id. at https://www.cpsc.gov/cgibin/NEISSQuery/CaseDetail.aspx?JobId=
mBHzH6bZd8OUhEvMxeI9TQ%3d%3d&Title=9OYR9kUytIsLilKZieD5xg%3d
%3d&OutputFormat=9OYR9kUytIsLilKZieD5xg%3d%3d&Type=v0Dpcp2JcG93
HTGffrGMT6V6GBbmxC9Tf%2fM5FmggZ1M%3d&UserAff=CvbkBwSYvXoJ
%2blc0Tfzwdg%3d%3d&UserAffOther=9OYR9kUytIsLilKZieD5xg%3d%3d.
6
Id. at https://www.cpsc.gov/cgibin/NEISSQuery/CaseDetail.aspx?JobId=
FwBKQDx5NwrakZi4nfda%2fA%3d%3d&Title=9OYR9kUytIsLilKZieD5xg
%3d%3d&OutputFormat=9OYR9kUytIsLilKZieD5xg%3d%3d&Type=v0Dpc
p2JcG93HTGffrGMT6V6GBbmxC9Tf%2fM5FmggZ1M%3d&UserAff=Cvbk
BwSYvXoJ%2blc0Tfzwdg%3d%3d&UserAffOther=9OYR9kUytIsLilKZieD5
xg%3d%3d.
8
Burns can also be fatal. In 1975, six-month-old twins rolled off a bed
and were burned by a hot radiator in a Trenton apartment; one of the twins
died and the other suffered burns over thirteen percent of her body. Hot
Radiator Kills Infant in Trenton, N.Y. Times, Nov. 29, 1975, at 57.
The risk of harm from scalding hot radiators is real and well
documented. The harm itself is serious and sometimes fatal. And those
harmed are often the most vulnerable among us.
II.
Summary judgment is appropriate when “there is no genuine issue as to
any material fact challenged and . . . the moving party is entitled to a judgment
or order as a matter of law.” R. 4:46-2(c). The record is viewed in the light
most favorable to the non-moving party -- in this case, the tenants.7 See
Caraballo v. City of Jersey City Police Dep’t, 237 N.J. 255, 264 (2019) (citing
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
One aspect of the record, in particular, requires close examination: the
nature of the heating system. For the most part, the facts are not in dispute.
The apartment building had a centralized steam heating system. A gas-fired
7
For ease of reference, plaintiffs and third-party defendants -- the apartment’s
tenant, her family members, and guests -- are referred to as “tenants.”
Defendants are R&M Tagliareni, LLC, and Robert & Maria Tagliareni, II,
LLC. They owned and managed the property and are referred to as the
“landlord.”
9
steam boiler in the basement -- in a locked room that the landlord exclusively
controlled -- supplied heated steam to radiators in each apartment. Tenants
had no access to the room; only the building superintendent and the owner’s
son could enter it. A timer in a locked box in the boiler room controlled the
boiler.
Steam travelled through pipes from the boiler to radiators in the
apartments; an uninsulated pipe extended vertically from the apartment floor
and connected to the radiator that burned Jimmy. The free-standing, cast-iron
loop radiator was in the corner of a small bedroom; it was 2’2” tall, 6” wide,
and 1’5” long.
A shut-off valve at the base of the radiator allowed steam heat into the
unit. The superintendent explained at his deposition that “[m]any tenants open
and close it there.” When asked if the valve “just allows you to open it and
close it. It doesn’t allow [tenants] to set a specific temperature?” the
superintendent replied, “[y]es.”
After Jimmy was burned, detectives from the Prosecutor’s Office
investigated the site. They heard the heating system activate and observed
that, within about two minutes, the radiator “went from cool . . . to extremely
hot and unbearable to the touch.” The tenants’ expert engineer noted that
steam is generated at 212 degrees Fahrenheit under ordinary atmospheric
10
pressure. However, “[a]s the pressure in a low-pressure boiler system
increases[,] so does the temperature for the creation of steam.” “Clearly,” the
expert opined, “with temperatures above 200° in a radiator[,] contact with its
cast iron surface would be unbearably hot.”
At oral argument and in written submissions during the appellate
process, counsel for the landlord argued that tenants can “turn the radiator on
and off and adjust the temperature in between.” For support, the landlord
relied on the following exchange at Mr. Tagliareni’s deposition:
Question: Do you have any knowledge of -- are
you aware of what the temperature of those radiators
can get to?
Answer: Depending on the tenant operating the
valve on the side of the radiator, it can be regulated
from off to full capacity.
Beyond that, the record is sparse. At most, it supports an inference that the
valve controlled the amount or flow of steam into the radiator,8 but no one
testified that tenants could adjust the temperature. The parties also do not
dispute that there were no thermostats in the apartments.
8
At oral argument, defense counsel referred to deposition testimony that
could support such an inference but is not in the record. The additional
testimony would not alter the analysis that follows.
11
The radiator that burned Jimmy was not covered. Some radiators in the
building had covers that varied in size. All of them had been installed before
the superintendent began working in the building -- roughly ten years before
the accident. He never installed a cover.
Mr. Tagliareni testified that no tenant ever complained or insisted they
wanted a radiator cover, and none of the building’s tenants ever sustained a
burn from contact with a radiator. He added that he probably would have
supplied a radiator cover had a tenant asked for one. At oral argument,
defense counsel conceded that cost is “not a huge expense.”
The parties also deposed Myles Pryor, an inspector for the Bureau of
Housing Inspection, which is part of the Department of Community Affairs
(DCA). Mr. Pryor had inspected the apartment building in Jersey City. He
testified that, as far as he understood, the applicable DCA regulation --
N.J.A.C. 5:10-14.3(d) -- did not require landlords to cover radiators. Although
he conceded on cross-examination that it was “possible” the regulation
included radiators, he stated that, based on his training, he would not issue a
violation to a building for not having a cover on a radiator. The landlord
likewise testified that, despite multiple inspections, he had never received a
violation or citation from a government agency for an uncovered radiator.
12
III.
The trial court found that the landlord did not owe a duty of care under
either the common law or the DCA regulation. The court therefore granted the
landlord’s motion for summary judgment.
The Appellate Division reversed. J.H. v. R&M Tagliareni, LLC, 454
N.J. Super. 174 (App. Div. 2018). It relied heavily on Coleman to conclude
that the landlord had a common law duty of reasonable care to protect tenants
and their guests from the hot radiator. Id. at 181-86.
The court reasoned, as in Coleman, that the landlord controlled the
heating system, of which the radiator was a part. Id. at 178, 184. The
Appellate Division observed that the shut-off valve and absence of a
thermostat amounted to “an ineffective or illusory transfer of the temperature
control of the heating system.” Id. at 184. Under the circumstances, the court
found that the landlord retained “sufficient control” to extend a duty of care to
Jimmy under the common law. Id. at 185-86. The court also noted that “a
cover on the radiator would have guarded against burns” and that “nothing in
the record . . . suggest[s] it was unreasonably burdensome for defendants to
cover the radiators.” Id. at 184-85.
The Appellate Division also concluded that the landlord owed a duty of
care under N.J.A.C. 5:10-14.3(d). Id. at 186-88. The court looked to the
13
regulation’s plain language and purpose to find that it encompassed radiators:
namely, that landlords must insulate or guard an apartment building’s “heating
system” to protect people from accidental burns. Ibid.
IV.
To sustain a cause of action for negligence, the tenants must establish
that the landlord breached a duty of care owed to Jimmy that proximately
caused his injury. See Townsend v. Pierre, 221 N.J. 36, 51 (2015) (noting that
the elements of a negligence action are “(1) a duty of care, (2) a breach of that
duty, (3) proximate cause, and (4) actual damages” (quoting Polzo v. County
of Essex, 196 N.J. 569, 584 (2008))). Whether a duty exists lies at the heart of
this appeal.
In certain areas of negligence law, such as the duties that landlords owe
tenants, settled common law principles provide guidance. In particular, “[a]
landlord has a duty to exercise reasonable care to guard against foreseeable
dangers” that arise from the use of “portions of the rental property over which
the landlord retains control.” Scully v. Fitzgerald, 179 N.J. 114, 121-22
(2004) (citing Braitman v. Overlook Terrace Corp., 68 N.J. 368, 381 (1975);
Coleman, 54 N.J. at 63-64; Anderson v. Sammy Redd & Assocs., 278 N.J.
Super. 50, 54 (App. Div. 1994); Ellis, 96 N.J. Super. at 547); see also
Restatement (Second) of Torts §§ 360, 361 (Am. Law. Inst. 1965); 23A N.J.
14
Practice, Landlord and Tenant Law § 47.1 (Raymond I. Korona) (rev. 5th ed.
2019); cf. Restatement (Third) of Torts § 53(a). Control and foreseeability are
thus central to the existence and scope of a landlord’s duty of care.
The common law duty requires landlords to maintain property they
control “in a reasonably safe condition.” Scully, 179 N.J. at 122; see also
Coleman, 54 N.J. at 63; Linebaugh v. Hyndman, 213 N.J. Super. 117, 120-21
(App. Div. 1986), aff’d o.b., 106 N.J. 556 (1987). That duty ordinarily
extends to tenants, members of their families, and guests. Coleman, 54 N.J. at63 (citing Ellis, 96 N.J. Super. at 547; Restatement (Second) of Torts §§ 360,
361); Anderson, 278 N.J. Super. at 53.
Courts have applied those principles to various areas over which
landlords retain control. See, e.g., Scully, 179 N.J. at 126-27 (landlord owed
tenant a common law duty to maintain the storage area in a reasonably safe
condition, and to exercise reasonable care to guard against the risk of fire);
Coleman, 54 N.J. at 62-64 (landlord owed a duty of reasonable care to
maintain the heating system in a reasonably safe condition); Linebaugh, 213
N.J. Super. at 119-20 (landlord owed a duty of reasonable care “to his tenant’s
invitees to prevent injury from a vicious animal kept” in the common area with
the landlord’s knowledge); Dwyer v. Skyline Apartments, Inc., 123 N.J. Super.
48, 52 (App. Div.) (given the landlord’s “control of the water supply system
15
and all its parts,” the landlord “unquestionably had the basic duty to maintain
and repair the piping and faucets in and leading to plaintiff’s bathtub”), aff’d
o.b., 63 N.J. 577 (1973).
Whether a duty to exercise reasonable care exists is a question of law for
a court to decide. Jerkins v. Anderson, 191 N.J. 285, 294 (2007); Carvalho v.
Toll Bros. & Developers, 143 N.J. 565, 572 (1996). That calls for an
examination of two critical issues: the landlord’s control of the radiator’s
heating mechanism and whether the unit posed a foreseeable risk of harm.
A.
The Court considered the issue of control in a related context in
Coleman. In that case, an infant accidentally caught his foot between a
radiator and an “up-pipe” while crawling in his parents’ rented apartment. 54
N.J. at 60-61. The two-family “house had a central heating system,” and the
pipe carried hot water from the basement furnace to the radiator. Id. at 61.
The hot pipe burned away the infant’s skin, and he was treated in a hospital for
second- and third-degree burns. Id. at 61-62. The father, on behalf of his
child, sued the landlords. See id. at 60.
At the close of the infant’s case, the trial court granted the landlords’
motion for involuntary dismissal. Id. at 60, 62. In the court’s view, “mere
proof that the up-pipe or the radiator or both were not shielded by a covering
16
or a guard or some protective device was not sufficient to create an issue of
defendants’ negligence for determination by the jury.” Id. at 62.
In a split decision, the Appellate Division reversed and remanded for a
new trial. Id. at 60; accord Coleman v. Steinberg, 103 N.J. Super. 271 (App.
Div. 1968). The Appellate Division majority found that, because both the pipe
and attached radiator were part of the house’s central heating system and were
under the landlords’ control, the landlords owed tenants a duty “to exercise
due care to maintain the pipe in a reasonably safe condition.” Coleman, 54
N.J. at 62. The majority determined that, under the circumstances, the jury
should decide whether the landlords negligently failed to discharge that duty.
Ibid.This Court unanimously agreed. It observed that because “the landlords
supplied heat to both tenants . . . through a single-control heating unit,” the
landlords “must be deemed to have retained control of the entire system” --
including pipes that connected the furnace to the radiators. Id. at 63.
Hearkening to common law principles, the Court found that, “[h]aving
retained . . . control, the landlords were under a duty to use reasonable care to
guard against hazards to members of the tenants’ family . . . arising out of the
maintenance and operation of the system.” Ibid. (citing Monohan v. Baime,
125 N.J.L. 280 (E. & A. 1940); Ellis, 96 N.J. Super. at 547; Prosser on Torts
17
§ 63 at 421 (3d ed. 1964); 2 Harper & James, The Law of Torts, § 27.17 at
1518 (1956)).
In this appeal, as in Coleman, the landlord retained control over the
centralized heating system. The landlord supplied heat to all of the building’s
tenants from a single boiler in a locked basement boiler room. The landlord
alone controlled the temperature of the steam in the system. In Coleman, a
thermostat in the plaintiff’s apartment regulated the units; here, the apartment
had no thermostat. Because there is no material difference between the
landlords’ control of the heating system in Coleman and in this case, there
should be no difference about whether a duty of reasonable care exists.
To be sure, the infant in this case was burned from contact with the
radiator, not the up-pipe. The tenants in Coleman had no control over the up-
pipe. Here, the landlord contends that the shut-off valve allowed tenants not
only to turn the radiator on and off but also to adjust the temperature in
between. As discussed earlier, the record does not substantiate that claim; it
supports a finding that the landlord retained control over the system and, in
particular, over the temperature of the radiator’s surface.
Tenants could decide whether to turn the heat on or off -- which is little
more than an illusion of control on cold wintry days. Based on the record
before the Court, they could not regulate the temperature. Even looking at the
18
evidence in the light most favorable to the landlord -- the opposite of what the
standard for summary judgment calls for in this motion, see Brill, 142 N.J. at
523, 540 -- the record suggests that tenants could use the shut-off valve to
adjust the flow of steam entering the radiator. Even if that were the case, it
could take longer to heat a radiator, but the radiator’s ultimate temperature --
and its capacity to burn skin on contact -- would be the same. In other words,
the flow of boiling hot steam could be modified but not its temperature, which
the landlord alone controlled. And no one disputes that at a temperature able
to heat a room, a radiator can burn a person on prolonged contact.
B.
Under settled case law, once again, a landlord has a duty to guard
against foreseeable harm that arises from areas “over which the landlord
retains control.” Scully, 179 N.J. at 121-23.9 Foreseeability also supports
finding that a duty existed here.
The sources outlined in the opening section reveal that the risk of injury
from radiators is indeed foreseeable. But neither experts nor nationwide
studies nor media reports are needed to disclose the obvious: that many suffer
9
Some commentators observe that foreseeability should be considered b y the
jury when it decides if a breach occurred, not by the court in deciding whether
a duty exists. See Dan B. Dobbs et al., The Law of Torts § 256 (2d ed. 2018).
In either case, summary judgment would not be appropriate in this matter.
19
serious injuries from hot radiators year after year. See Scully, 179 N.J. at 127(“Certain dangerous conditions that create the foreseeable risk of fire are well
known to ordinary people and are a matter of common knowledge.”); Hopkins,
132 N.J. at 450 (“[S]ome hazards are relatively commonplace and ordinary and
do not require the explanation of experts in order for their danger to be
understood by average persons.”).
The point is so well ingrained that parents teach their children to avoid
touching radiators. The risk of harm is particularly foreseeable for young
children who do not intuitively understand not to touch a scalding hot radiator
or to recoil from it if they do. Risk of injury is reasonably foreseeable for
seniors as well. Memory loss, reduced agility, thinning skin, and other age-
related conditions can “increase the risk of burn injuries.” N.Y.-Presbyterian,
Weill Cornell Med. Ctr., Burn Safety and Prevention for Older Adults 3
(2010), https://www.nyp.org/pdf/burn_center/Burn_Safety_
Prevention_Older_Adults_englishWEB.pdf.
Under the circumstances, the absence of prior complaints to a landlord is
hardly dispositive. See Clohesy v. Food Circus Supermarkets, Inc., 149 N.J.
20496, 508, 514 (1997); see also J.S., 155 N.J. at 338 (noting that knowledge of
the risk of injury may be constructive).10
Mr. Tagliareni’s testimony -- that it “never crossed [his] mind” that
radiators like the one that burned Jimmy “have the potential to cause contact
burns if someone touched them” -- is also beside the point. See J.S., 155 N.J.
at 338 (“Foreseeability as a component of a duty to exercise due care is based
on the defendant’s knowledge of the risk of injury and is susceptible to
objective analysis.” (emphasis added)). In his petition for certification, the
landlord in fact acknowledged that, “in order to provide heat, a radiator must
reach a temperature that is capable of burning a person upon prolonged
contact.” (The Hudson County Prosecutor’s investigation found that it
actually took about two minutes for the radiator that burned Jimmy to go from
“cool to . . . extremely hot and unbearable to the touch.”) Even from the
landlord’s standpoint, then, the risk of danger posed by a functioning radiator
is eminently foreseeable.
10
Relatedly, as in Coleman, if a “dangerous condition existed at the time of
the letting, to the landlords’ knowledge, actual or constructive, the duty to
remedy came into being at the inception of the tenancy.” 54 N.J. at 64. A
jury’s finding of liability would “not depend upon” whether the landlord
received “notice of the hazard” later on, in time “to rectify it” before the
child’s injury. Ibid.21
Because the landlord retained control of the radiator’s temperature and
the radiator presented a foreseeable risk of danger, the landlord owed Jimmy --
under well-settled common law principles -- a duty to exercise reasonable care
to guard against the risk of harm.
C.
The two factors considered above -- the landlord’s retention of control
and foreseeability of harm -- serve as a shorthand for the duty analysis in the
landlord-tenant context. Those factors are drawn from a broader array of
considerations that courts identify, weigh, and balance to determine whether a
common law duty exists: “the relationship of the parties, the nature of the
attendant risk, the opportunity and ability to exercise care, and the public
interest.” Hopkins, 132 N.J. at 439; cf. Rowe v. Mazel Thirty, LLC, 209 N.J.
35, 44-45 (2012) (noting that the common law categories of trespasser,
licensee, and invitee, and the corresponding duty for each, are a shorthand for
a full duty analysis under Hopkins). Although it is not necessary to consider
them separately in this appeal, the additional Hopkins factors inform the
analysis.
Whether a person owes a legal “duty of care to avoid harm to another is
ultimately governed by fairness and public policy.” Robinson v. Vivirito, 217
N.J. 199, 208 (2014); see also Hopkins, 132 N.J. at 439.
22
The above analysis -- keyed to the common law rule for landlords --
largely addressed two of the Hopkins factors: the relationship of the parties;
and the nature of the risk, including its foreseeability and severity, see J.S.,
155 N.J. at 337. The remaining Hopkins factors -- the opportunity and ability
to exercise care, the public interest, and related concerns -- likewise point to
the existence of a duty of reasonable care here.
1.
Without question, landlords have the ability and opportunity to exercise
care when it comes to radiators in apartment buildings. Landlords control the
centralized heating system in a building and are responsible to maintain it in a
safe condition. They have unfettered access to apartments before new tenants
move in and can seek consent from tenants afterward, if needed, to make
repairs and improvements. In this case, a building superintendent was
responsible for ongoing maintenance. The landlord, thus, was plainly in a
position to take reasonable steps to guard against risk of harm.
The opportunity to avoid risk in this situation is likewise
straightforward. As this Court observed in Coleman, “[w]e cannot close our
eyes to the commonplace fact that pipes like those involved here can be
protected by a covering or shield, and that a protective covering or shield is
23
readily available for the unit of pipe and radiator at modest cost.” 54 N.J. at
64 (emphasis added).
Fifty years later, that remains true. A leading burn center recently
cautioned that contact burns “are the second most common burns among young
children.” N.Y.-Presbyterian, Weill Cornell Med. Ctr., Burn Safety for Infants
and Children 3 (2010), https://www.nyp.org/pdf/burn_center/
BurnSafetyforInfantsandChildren_englishWEB.pdf. To prevent them, the
center offered a number of “simple steps,” including “[c]over all radiators and
heating pipes.” Ibid.; see also Burn Safety and Prevention for Older Adults at
6 (offering same advice for seniors).
Radiator covers are not complex pieces of equipment. They come in
different shapes, and some have grates to allow warm air to flow through while
protecting against direct contact with hot cast-iron radiators. Experts are not
needed to weigh in on their ordinary, everyday use.
In its brief, the landlord submits that “radiator covers reduce the
efficiency of the radiators” and that landlords will “have to bear increased
energy costs.” No support for the proposition is offered. The issue, though --
like steam radiators themselves -- is hardly new. See Home Radiator Burns
Among Inner-City Children, 45 Morbidity & Mortality Wkly. Rep. at 815
(“Steam radiator systems are found primarily in older buildings.”) .
24
Nearly a century ago, engineering experts at the University of Illinois
studied the effect of radiator covers on heating efficiency. Arthur C. Willard
et al., Investigation of Heating Rooms with Direct Steam Radiators Equipped
with Enclosures and Shields, 192 U. of Ill. Eng’g Experiment Station 1 (June
1929), http://hdl.handle.net/2142/4165. The 69-page study, led by the head of
the Department of Mechanical Engineering, concluded that “[t]he use of a
properly designed radiator enclosure, or shield, results in a gain in steam
economy, and equally or more satisfactory air temperature conditions in the
room as compared with those obtained by the use of an unenclosed radiator.”
Id. at 68.
The record, in fact, reveals that some apartments in the building had
covers when the superintendent started working there in around 2001. They
are sold at most home improvement stores for what the landlord concedes is
“not a huge expense.” To his credit, the landlord testified that he probably
would have provided radiator covers had a tenant asked.
2.
The public interest also favors the imposition of a duty of care. As this
Court has explained, “one of the main functions of tort law is to prevent
accidents,” and “[o]ne of the central rationales for imposing liability in tort
law is to deter tortious behavior.” Hopkins, 132 N.J. at 448 (citing Richard
25
Posner, Economic Analysis of Law 78 (1972)). The imposition of a duty of
care on landlords would serve that aim. It would help protect tenants against
foreseeable and preventable dangers that arise from the ordinary and
reasonable use of radiators. That protection would naturally extend to the
most vulnerable -- like the nine-month-old who suffered severe burns and
permanent scarring in this case.
Our State, of course, “has a strong interest in protecting children.”
Jerkins, 191 N.J. at 297 (imposing a duty on schools to supervise school
children during dismissal); see also DYFS v. M.W., 398 N.J. Super. 266, 295
(App. Div. 2008) (“The clear public policy of this State is to protect and
preserve the welfare of its children . . . .”).
To that end, many regulations explicitly require that, in places where
children are certain to be present, hot water and steam radiators must be
shielded. See N.J.A.C. 3A:52-5.3(d)(2) (“Steam and hot water pipes and
radiators” in child care centers “shall be protected by screens, guards,
insulation, or any other suitable, non-combustible protective device.”)
(adopted by the Department of Children and Families); N.J.A.C. 3A:53-5.4(e)
(“[H]ot radiators” in “[s]helter facilities and shelter homes caring for children
six years of age and under . . . shall be adequately protected by screens or
guards.”) (adopted by the Department of Children and Families); N.J.A.C.
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8:25-4.3(d) (A youth “camp director shall ensure that all . . . hot water and
steam radiators . . . are shielded to prevent burns.”) (adopted by the
Department of Health). Although not applicable here, the regulations reflect
both an awareness of the danger unprotected radiators present -- on the part of
multiple public agencies -- and the strong public interest to prevent burns that
unshielded radiators foreseeably inflict on young children. See Coleman, 54
N.J. at 65.
Protecting tenants is also a matter of keen public interest. See N.J.S.A.
55:13A-2 (declaring that the Hotel and Multiple Dwelling Law is designed to
protect “the health and welfare” of tenants and “assure the provision . . . of
decent, standard and safe units of dwelling space”).
3.
Tort law also considers how the imposition of a duty would work in
practice. See Hopkins, 132 N.J. at 443 (citing Weinberg v. Dinger, 106 N.J.
469 (1987)). The landlord contends that “a duty on landlords to cover
radiators . . . would impose too heavy a burden on all property owners.”
Landlords that install covers, though, could likely pass on the cost to tenants
over a period of time. Cf. Trentacost v. Brussel, 82 N.J. 214, 226 (1980)
(noting that landlords “can spread the cost of maintenance over an extended
period of time among all residents enjoying its benefits”). Tenants with short-
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term leases, on the other hand, do “not have the same incentive” to maintain an
apartment. See Restatement (Second) of Torts § 356 cmt. a; see also
Restatement (Third) of Torts, § 53 cmt. f(6). Some tenants are also unable to
pay the full cost of a protective device up front. Restatement (Second) of
Torts § 356 cmt. a.
In addition, nothing in the record suggests that the consequences from a
duty of care would be unreasonably burdensome. See Coleman, 54 N.J. at 64(noting that “a protective covering or shield is readily available for the unit of
pipe and radiator at modest cost”); see also Hopkins, 132 N.J. at 446 (finding
the imposition of a duty on real estate brokers to inspect a home and give
warnings would not “be an unreasonable economic strain”). Once again, the
landlord conceded that the cost is “not a huge expense.”
4.
Finally, it is not unfair to impose a duty on landlords -- who have control
of a heating system and, in particular, of the temperature coursing through hot
radiators -- to exercise reasonable care to prevent radiator burns. Hopkins, 132
N.J. at 439 (“[W]hether a duty exists is ultimately a question of fairness.”
(quoting Weinberg, 106 N.J. at 485)).
Landlords are required by regulation to provide heat to residential
tenants. See N.J.A.C. 5:10-14.4(a) (requiring that from October 1 through
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May 1, landlords must maintain “every habitable room . . . at a temperature of
at least” 65 or 68 degrees Fahrenheit depending on the time of day, unless the
tenant agrees to supply heat). Landlords are also well-positioned to guard
against the foreseeable dangers that radiators present. And “[w]hen the
defendant’s actions are ‘relatively easily corrected’ and the harm sought to be
prevented is ‘serious,’ it is fair to impose a duty.” See J.S., 155 N.J. at 339-40(quoting Kelly v. Gwinnell, 96 N.J. 538, 549-50 (1984)).
Consideration of the additional Hopkins factors, then, further supports
the existence of a duty of care that would require landlords to take reasonable
steps to protect tenants from radiator burns.
D.
Rivera v. Nelson Realty, LLC, 858 N.E.2d 1127 (N.Y. 2006), does not
call for a different outcome. In that case, the New York Court of Appeals
dispensed with an apartment dweller’s claim that landlords have a common
law duty to provide radiator covers. Id. at 1127, 1129. In its analysis, the
court did not consider the key factors relevant here: who controlled the
heating mechanism, and whether the radiator posed a foreseeable risk of harm,
among other relevant considerations. Consistent with New York law, the
ruling instead addressed whether the landlord “breached any duty to keep
plaintiffs’ apartment in good repair.” Id. at 1129 (citing New York’s Multiple
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Dwelling Law § 78). And the Rivera Court reasoned that because the
uncovered radiator needed no repairs, the landlord had no duty to remedy the
alleged hazard. Id. at 1130. That principle, however, conflicts with this
Court’s decision in Coleman, which imposed a duty of reasonable care to
address any hazard posed by an exposed steam pipe -- that was in good
working order.
In addition, the majority correctly notes that “it is not necessary for a
regulatory body to impose a duty before the common law can be expanded.”
See ante at ___ (slip op. at 33). Nor should agency inaction determine whether
a common law duty exists. If great weight were given to whether a regulatory
body had acted first, there would be little place for the common law. Also, a
broad range of cases in which this Court has found a common law duty -- even
though agencies had not acted -- could be undermined.
E.
Finding that a duty of care exists does not mean that landlords must
provide covers for all radiators or face sole liability for all injuries caused by
radiators. They instead would have a duty to exercise reasonable care under
the circumstances to guard against the risk of harm radiators pose. That may
include the use of covers or shields, or some other reasonable step to protect
against foreseeable dangers. See Clohesy, 149 N.J. at 520.
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Whether the uncovered radiator in this case in fact posed a dangerous
condition, and whether the landlord violated its duty to exercise reasonable
care to guard against foreseeable injury, are questions that should have been
submitted to the jury. See Coleman, 54 N.J. at 64; Hopkins, 132 N.J. at 449;
J.H., 454 N.J. Super. at 182. As in Coleman, and for the reasons discussed
above, a reasonable jury could have answered both questions affirmatively. 54
N.J. at 64.
A finding of a breach of duty does not mean that proximate cause will be
found, or that liability will not be apportioned among the landlord and others
determined to be liable for Jimmy’s injury. Proximate cause and comparative
fault, like breach, are ordinarily questions for the jury. Perez v. Wyeth Labs.
Inc., 161 N.J. 1, 27 (1999) (regarding proximate cause); N.J.S.A. 2A:15-5.3
(regarding percentage of responsibility for damages for each responsible party,
and right of contribution from joint tortfeasors).
Because it was for the jury to decide whether the landlord breached a
duty of care in this case, I believe it was error to grant summary judgment
against Jimmy.
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V.
The appeal raises separate, related questions: whether N.J.A.C.
5:10-14.3 imposes a duty on landlords relating to radiators, and whether the
regulation affects the above common law analysis.
Multi-unit dwellings with three or more apartments are subject to the
Hotel and Multiple Dwelling Law. N.J.S.A. 55:13A-1 to -28. The law is
designed to protect “the health and welfare” of tenants and assure “decent,
standard and safe units of dwelling space.” N.J.S.A. 55:13A-2. As the
Legislature declared, the statute is remedial legislation that “shall be liberally
construed to effectuate [its] purposes.” Ibid.The law “confers broad authority” on the Commissioner of the
Department of Community Affairs, Rothman v. Dep’t of Cmty. Affairs, 226
N.J. Super. 229, 231 (App. Div. 1988), and delegates power to the
Commissioner to issue regulations, Trentacost, 82 N.J. at 230. Among other
things, the statute directs that any regulations shall provide standards for
“protective equipment . . . reasonably necessary to the health, safety and
welfare” of tenants, including “central heating units.” N.J.S.A. 55:13A-7.
DCA has promulgated various regulations under the Act. N.J.A.C. 5:10-
1.10(b), for example, requires the Bureau of Housing Inspection to inspect
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dwellings with three or more units every five years. N.J.A.C. 5:10-14.7(a)
requires that “[t]he heating system . . . be inspected annually.”
Of particular importance, N.J.A.C. 5:10-14.3(d) states that “[t]he heating
system, including such parts as heating risers, ducts and hot water lines, shall
be covered with an insulating material or guard to protect occupants and other
persons on the premises from receiving burns due to chance contact.”
Like the law it seeks to implement, that regulation should be construed
liberally. See N.J.S.A. 55:13A-2; N.J.A.C. 5:10-1.5(a) (the regulations on
maintenance of hotels and multiple dwellings “shall be liberally interpreted to
secure the beneficial purposes thereof”).
The regulation does not define “heating system.” It instead has a non-
exhaustive list that includes risers, ducts, and hot water lines. Although the
regulation neither includes nor excludes “radiators,” its stated purpose
logically extends to them: to protect against burns from chance contact. As
the Appellate Division aptly noted, “no part of an apartment’s heating system
. . . [is] more likely to be in contact with [people] than the radiator.” J.H., 454
N.J. Super. at 187.
DCA has not offered its view of the meaning of the regulation or how it
is enforced. After the Appellate Division published its decision, DCA did not
seek to enter the case as amicus and file a brief. Neither the inspector’s
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comments at his deposition, nor the two certificates of inspection in the record
that certify the building’s compliance with the statute, represent DCA’s
official views on the meaning of N.J.S.A. 5:10-14.3(d). As a result, those
items are not entitled to the deference ordinarily accorded an agency about the
meaning of a law or regulation within the agency’s area of expertise. See In re
Election Law Enf’t Comm’n Advisory Opinion No. 01-2008, 201 N.J. 254,
262 (2010).
That said, the regulation could easily have included the term “radiator,”
but it does not. Again, the statute and regulations do not expressly say that
radiators are -- or are not -- a part of the heating system. That simple fact
matters. To the extent the statute and regulations do not address whether a
radiator, as part of a heating system, should be insulated or otherwise shielded
to prevent accidental burns, the statute has not supplanted the common law.
Courts construe statutes narrowly if they are in derogation of the
common law, especially when a statute grants immunity from tort liability.
Marshall v. Klebanov, 188 N.J. 23, 37 (2006). Plus here, although the law
does not mention radiators, its purpose is clear: to protect “the health, safety
and welfare” of tenants, N.J.S.A. 55:13A-7, and, in particular, to protect them
“from receiving burns due to chance contact,” N.J.A.C. 5:10-14.3(d).
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Therefore, neither the statute nor its implementing regulations preempt the
common law duty of care that should apply.
VI.
In the end, the Legislature has the final say in this case. If a court
imposes a duty of care and the Legislature disapproves of it, the Legislature
can step in and override the ruling. See, e.g., Angland v. Mountain Creek
Resort, Inc., 213 N.J. 573, 582-83 (2013) (citing Hubner v. Spring Valley
Equestrian Ctr., 203 N.J. 184, 198-202 (2010)) (noting the enactment of the
New Jersey Ski Act in response to a Vermont Supreme Court decision that
relied, in part, on a decision of this Court); Sciarrotta v. Glob. Spectrum, 194
N.J. 345, 359 (2008) (noting the enactment of the New Jersey Baseball
Spectator Safety Act of 2006 in response to Maisonave v. Newark Bears Prof’l
Baseball Club, Inc., 185 N.J. 70 (2005)).
Here, the majority finds no duty under the statute or the common law.
The Legislature can override that conclusion as well. It is free to amend the
Hotel and Multiple Dwelling Law and require that protective covers be placed
on hot radiators -- to protect tenants, their families, and guests from serious
injuries they will undoubtedly continue to suffer year after year.
For all of those reasons, I respectfully dissent.
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