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Tuesday, November 19, 2019

Landlords have duty to protect infants from radiator burns, some New Jersey Supreme Court justices feel

State Court

By Karen Kidd | Aug 23, 2019

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TRENTON, N.J. (Legal Newsline) – New Jersey landlords had a duty to protect an infant who was severely burned by a hot radiator in 2010, two dissenting justices said in a state Supreme Court decision issued last month in which the majority of justices ruled that the landlords did not.

"Landlords have a duty to use reasonable care to guard against foreseeable hazards to tenants that arise from areas within the landlord’s control," New Jersey Supreme Court Chief Justice Stuart Rabner wrote in his dissent from the majority opinion in J.H. v. R&M Tagliareni, issued July 31.  

The duty arises from common law, notions of fairness and common sense, Rabner ruled.

"Based on those principles, landlords should have a duty to take reasonable steps to prevent the serious harm that scalding hot radiators can cause," Rabner wrote. "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."

Rabner was joined in his dissent by Justice Barry T. Albin.

Rabner and Albin's dissent was counter to the majority Supreme Court opinion that the state's regulations don't include an express or implied intent to include radiators as part of the heating system that requires insulation.

"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," Justice Faustino Fernandez-Vina wrote.

Justices Jaynee LaVecchia, Anne M. Patterson, Lee A. Solomon and Walter Francis Timpone concurred with Fernandez-Vina.

The case stems from injuries suffered in March 2010 by a then 9-month-old infant, identified in court documents as "J.H." and "Jimmy." The infant was staying in a Jersey City apartment, owned by R&M Tagliareni LLC and Robert & Maria Tagliareni LLC, where he slept in a bed next to an uncovered, free-standing cast iron loop radiator, according to background portions of the Supreme Court's opinion.

J.H.'s stepsister later found the infant "on the floor, wedged between the radiator and the bed, with his head pressed against the radiator," the next morning, Rabner's dissent said.  

J.H. suffered third-degree burns on about 3 percent of his body, including his head and left arm, from which he suffers permanent scarring.

As part of the Hudson County Prosecutor’s Office subsequent child abuse investigation, detectives interviewed the building’s superintendent. The superintendent "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," the opinion said.

The case's record shows otherwise, according to Rabner's dissent.

"The record reveals that the landlord controlled the temperature of the steam coursing through the radiators, the tenants did not," Rabner's dissent said. "Tenants who can turn heat on or off are hardly in control."

Whether to warm an apartment during a New Jersey winter is not really a choice tenants have, Raber's dissent said.

"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," the dissent said. "And when tenants turn the heat on, radiator burns are an entirely foreseeable risk that can be protected against."

After his injuries, J.H. and his guardian ad litem filed suit against the defendants alleging their negligence had caused J.H.’s injuries.

The trial court granted summary judgment in the defendants’ favor, ruling that they did not owe a common law duty of care to place a cover on the radiator and were not required by state regulations.

In March of last year, the appellate division of New Jersey Superior Court took up the plaintiff's appeal and reversed the trial court's ruling. The state appellate court found that New Jersey law, specifically N.J.A.C. 5:10-14.3(d), does impose a duty of care upon defendants and that they had breached that duty.

The appellate court also granted defendants’ petition for certification and the Supreme Court in October agreed to review the case.

The majority of the Supreme Court did not agree with the appellate court.

"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," a summary of the Supreme Court majority decision said. "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."

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