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

• Court: Supreme Court of New Jersey
• Decided: July 31, 2019
• Docket: A-6-18
• Status: Published

Opinion

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.

Defendants/Third-Party Plaintiffs,

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.

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.”

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.

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).

“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).

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

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,

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.

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.

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. at

63 (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.

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.

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.

20 496, 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.

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.

26 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-

27 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

28 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

29 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.

30 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.

31 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

32 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

33 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).

34 Therefore, neither the statute nor its implementing regulations preempt the

common law duty of care that should apply.

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.