J.H. v. R&M Tagliereni, LLC, 239 N.J. 198 (2019). [There was the potential of a guest post regarding this case, but that did not pan out. That’s the reason for the delay in this post.] This was a tragic case, in which the Supreme Court split 5-2. Plaintiff, a nine-month old infant, was severely burned when he rolled from a bed into an uncovered radiator in his family’s apartment, which was leased from defendants. Plaintiff and his guardian ad litem sued for his injuries, claiming negligence by the landlord in failing to cover the radiator.
The Law Division granted summary judgment to the landlord, finding that neither a regulation of the Department of Community Affairs (“DCA”), N.J.A.C. 5:10-14.3(d), which required insulation of the “heating system,” nor the common law imposed any duty on the landlord to cover radiators. On appeal, the Appellate Division reversed. 454 N.J. Super. 174 (App. Div. 2018). That court ruled that under common law, the landlord retained enough control over the heat from the radiator that it was fair to impose a duty of care. The panel also said that plaintiff should be allowed to argue the effect of the regulation to a jury.
The Supreme Court granted certification and reversed by a 5-2 vote. Justice Fernandez-Vina wrote the majority opinion, in which Justices LaVecchia, Patterson, Solomon, and Timpone joined. Chief Justice Rabner wrote a dissent, to which Justice Albin subscribed.
The majority concluded that there was no intent to include radiators as part of the “heating system” that the DCA regulation required to be insulated. There was testimony from a DCA inspector that inspections of apartments for compliance with the regulation did not include checking to see if apartment radiators were covered, and the list of “heating system” components required to be covered, such as heating risers and hot water lines, were all in the landlord’s sole control, unlike radiators, which tenants had the ability to turn on or off. This apparent lack of DCA intent to require covering of radiators was entitled to deference.
The fact that tenants could control the radiator also doomed the common law claim, according to the majority. Tenants, not the landlord, determined whether the radiator was hot or cold. Since the landlord lacked control over the radiator, unlike in Coleman v. Steinberg, 54 N.J. 58 (1969), relied on by the Appellate Division, where the Court found a duty because the landlord had control over a heating component, there was no basis to impose a common law duty on the landlord.
The dissenters saw the issues differently. The regulation, Chief Justice Rabner said, was perhaps less than clear, but it did not preempt a common law duty. And the dissent took a different view of who really controlled the radiator. They argued that it was wrong to focus on the tenant’s control of the “on-off” function of the radiator. What mattered instead was that the landlord controlled the temperature of the heat flowing through the radiators. That excessive heat, not whether the radiator was on or off (and it generally must be on during the heating season in order to keep tenants warm) justified imposing a common law duty.
Finally, the Chief Justice said, it was not expensive, burdensome, or unfair to place a duty on the landlord. Landlords are in the best position to deal with uncovered radiators, and there are many cases of burns from uncovered radiators, justifying a duty.
Both opinions are well worth reading in full. But the dissent seems to have the better of the argument in this unfortunate case.