NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0953-17T1
KIMBERLY KARALIA,
Plaintiff-Appellant,
v.
STEVEN SMITH,
Defendant-Respondent. _____________________________
Argued January 10, 2019 – Decided April 9, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0039-17.
Lawrence B. Diener argued the cause for appellant.
Gina M. Stanziale argued the cause for respondent (Methfessel & Werbel, attorneys; Gina M. Stanziale, of counsel; Alicia C. Langone, on the brief).
PER CURIAM Plaintiff Kimberly Karalia appeals from an order granting defendant
Steven Smith summary judgment dismissal, as well as from an order denying
her motion for reconsideration of the order for dismissal. We affirm.
I
Plaintiff rented an apartment from defendant, her landlord, in 2011. She
was forced to leave the premises on November 12, 2016, when a fire erupted in
the apartment, making it uninhabitable. The fire damaged or destroyed the
personal property she owned that was in the apartment at the time of the fire.
Plaintiff filed a verified and amended verified complaint alleging the fire
originated in the broiler or oven (the broiler was attached to the oven ). The
broiler and oven, collectively referred to as a "range," were fueled by gas.
Plaintiff sought damages for the loss of her personal property, as well as
for the cost of finding and moving into a new apartment. She claimed that,
months before the fire, she informed defendant the oven and broiler in the
apartment did not heat up after she turned either to the "on" position, but
defendant failed to repair or replace either. She maintained defendant was both
negligent and in violation of his obligations under the lease because he did not
repair or replace the oven and broiler.
A-0953-17T1 2 During discovery, plaintiff did not serve defendant with an expert's report,
but defendant served plaintiff with two experts' reports. One was authored by
Larry A. Wharton, P.E. and the other by Chris Ricciardi, CFEI. Both of
defendant's experts concluded defendant did not cause the fire. Because relevant
to the issues on appeal, we address these experts' opinions.
In his report, Wharton noted the burn patterns on the range indicated the
fire originated in the broiler drawer. He determined that the
oven/broiler of the involved gas range was manually turned on and left unattended. The broiler pan insert was covered with aluminum foil, in violation of the warning presented in the "Use & Care Manual" that doing so could result in a fire. Had the operation of the appliance been conducted in accordance with the provided "Use and Care Manual" instructions and had the operation of the appliance been appropriately attended/monitored the subject fire would have been prevented. . . .
[I] conclude[] that the manual nature of the appliance controls precludes the possibility that the gas oven/broiler burner turned "on" without physical intervention. The burner was deliberately and manually operated to the "on" position by a human act. The unattended operation of the appliance resulted in the captioned November 12, 2016 fire loss.
Ricciardi agreed the fire started in the broiler and that the evidence
indicated the broiler had been turned on before the fire. He further noted the
exterior wall of the range "exhibited a heavy accumulation of grease," and that
A-0953-17T1 3 the inside face of the broiler door was coated in burnt grease residue. He
determined the accumulated grease within the oven and broiler ignited, causing
the fire to spread to other areas in the kitchen.
At the conclusion of discovery, defendant filed a motion for summary
judgment, arguing plaintiff needed an expert witness to set forth at trial how his
alleged breach of the lease or negligence proximately caused the fire. In
response, plaintiff certified she lived in the premises for seven years before the
fire, used the broiler only one time long ago, and that both the oven and broiler
stopped working four months before the fire. She claimed she notified defendant
the oven and broiler did not work, but defendant did not repair or replace either.
She further certified she did not use the oven or broiler on the day of the
fire, as neither had been working for months. She disputed defendant 's
contentions she turned on the broiler just before the fire and that there was a
buildup of grease. She asserted the fire erupted as a result of a malfunction in
the oven, an opinion she obtained from the local fire department, which issued
a written report stating the fire was caused by a "mechanical malfunction."
The trial court granted summary judgment, finding plaintiff's failure to
serve defendant with an expert's report on the issue of his liability was fatal to
A-0953-17T1 4 her claim for damages. Plaintiff's motion for reconsideration was denied on the
ground she failed to meet the standard in Rule 4:49-2 to warrant relief.
II
On appeal, plaintiff's principal contentions are that (1) an oven and broiler
are inherently dangerous and, as a matter of law, a landlord is responsible for
any damages a tenant sustains as a result of an oven or broiler about which the
landlord had notice; (2) defendant's experts' reports and the local fire
department's report provide a basis for finding defendant was negligent; and (3)
she does not require expert testimony to prove her causes of action against
defendant.
We begin with our standard of review relevant to summary judgment.
Rule 4:46-2(c) directs that summary judgment be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." Essentially, the court must determine "whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law." Liberty Surplus
A-0953-17T1 5 Ins. Corp. v. Nowell Amoroso, PA, 189 N.J. 436, 445-46 (2007) (quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
We review a trial court's decision on summary judgment "de novo,
employing the same standard used by the trial court." Tarabokia v. Structure
Tone, 429 N.J. Super. 103, 106 (App. Div. 2012) (citing Prudential Prop. & Cas.
Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). We give "no
deference to the trial judge's conclusions on issues of law." Depolink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (quoting Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). Thus,
we must also "view the evidence in the light most favorable to the non-moving
party and analyze whether the moving party was entitled to judgment as a matter
of law." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0953-17T1
KIMBERLY KARALIA,
Plaintiff-Appellant,
v.
STEVEN SMITH,
Defendant-Respondent. _____________________________
Argued January 10, 2019 – Decided April 9, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0039-17.
Lawrence B. Diener argued the cause for appellant.
Gina M. Stanziale argued the cause for respondent (Methfessel & Werbel, attorneys; Gina M. Stanziale, of counsel; Alicia C. Langone, on the brief).
PER CURIAM Plaintiff Kimberly Karalia appeals from an order granting defendant
Steven Smith summary judgment dismissal, as well as from an order denying
her motion for reconsideration of the order for dismissal. We affirm.
I
Plaintiff rented an apartment from defendant, her landlord, in 2011. She
was forced to leave the premises on November 12, 2016, when a fire erupted in
the apartment, making it uninhabitable. The fire damaged or destroyed the
personal property she owned that was in the apartment at the time of the fire.
Plaintiff filed a verified and amended verified complaint alleging the fire
originated in the broiler or oven (the broiler was attached to the oven ). The
broiler and oven, collectively referred to as a "range," were fueled by gas.
Plaintiff sought damages for the loss of her personal property, as well as
for the cost of finding and moving into a new apartment. She claimed that,
months before the fire, she informed defendant the oven and broiler in the
apartment did not heat up after she turned either to the "on" position, but
defendant failed to repair or replace either. She maintained defendant was both
negligent and in violation of his obligations under the lease because he did not
repair or replace the oven and broiler.
A-0953-17T1 2 During discovery, plaintiff did not serve defendant with an expert's report,
but defendant served plaintiff with two experts' reports. One was authored by
Larry A. Wharton, P.E. and the other by Chris Ricciardi, CFEI. Both of
defendant's experts concluded defendant did not cause the fire. Because relevant
to the issues on appeal, we address these experts' opinions.
In his report, Wharton noted the burn patterns on the range indicated the
fire originated in the broiler drawer. He determined that the
oven/broiler of the involved gas range was manually turned on and left unattended. The broiler pan insert was covered with aluminum foil, in violation of the warning presented in the "Use & Care Manual" that doing so could result in a fire. Had the operation of the appliance been conducted in accordance with the provided "Use and Care Manual" instructions and had the operation of the appliance been appropriately attended/monitored the subject fire would have been prevented. . . .
[I] conclude[] that the manual nature of the appliance controls precludes the possibility that the gas oven/broiler burner turned "on" without physical intervention. The burner was deliberately and manually operated to the "on" position by a human act. The unattended operation of the appliance resulted in the captioned November 12, 2016 fire loss.
Ricciardi agreed the fire started in the broiler and that the evidence
indicated the broiler had been turned on before the fire. He further noted the
exterior wall of the range "exhibited a heavy accumulation of grease," and that
A-0953-17T1 3 the inside face of the broiler door was coated in burnt grease residue. He
determined the accumulated grease within the oven and broiler ignited, causing
the fire to spread to other areas in the kitchen.
At the conclusion of discovery, defendant filed a motion for summary
judgment, arguing plaintiff needed an expert witness to set forth at trial how his
alleged breach of the lease or negligence proximately caused the fire. In
response, plaintiff certified she lived in the premises for seven years before the
fire, used the broiler only one time long ago, and that both the oven and broiler
stopped working four months before the fire. She claimed she notified defendant
the oven and broiler did not work, but defendant did not repair or replace either.
She further certified she did not use the oven or broiler on the day of the
fire, as neither had been working for months. She disputed defendant 's
contentions she turned on the broiler just before the fire and that there was a
buildup of grease. She asserted the fire erupted as a result of a malfunction in
the oven, an opinion she obtained from the local fire department, which issued
a written report stating the fire was caused by a "mechanical malfunction."
The trial court granted summary judgment, finding plaintiff's failure to
serve defendant with an expert's report on the issue of his liability was fatal to
A-0953-17T1 4 her claim for damages. Plaintiff's motion for reconsideration was denied on the
ground she failed to meet the standard in Rule 4:49-2 to warrant relief.
II
On appeal, plaintiff's principal contentions are that (1) an oven and broiler
are inherently dangerous and, as a matter of law, a landlord is responsible for
any damages a tenant sustains as a result of an oven or broiler about which the
landlord had notice; (2) defendant's experts' reports and the local fire
department's report provide a basis for finding defendant was negligent; and (3)
she does not require expert testimony to prove her causes of action against
defendant.
We begin with our standard of review relevant to summary judgment.
Rule 4:46-2(c) directs that summary judgment be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." Essentially, the court must determine "whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law." Liberty Surplus
A-0953-17T1 5 Ins. Corp. v. Nowell Amoroso, PA, 189 N.J. 436, 445-46 (2007) (quoting Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
We review a trial court's decision on summary judgment "de novo,
employing the same standard used by the trial court." Tarabokia v. Structure
Tone, 429 N.J. Super. 103, 106 (App. Div. 2012) (citing Prudential Prop. & Cas.
Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). We give "no
deference to the trial judge's conclusions on issues of law." Depolink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (quoting Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). Thus,
we must also "view the evidence in the light most favorable to the non-moving
party and analyze whether the moving party was entitled to judgment as a matter
of law." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)
(citing Brill, 142 N.J. at 523).
Plaintiff first contends defendant is liable to her because a broiler and an
oven are inherently dangerous. Plaintiff does not cite and we were unable to
find any authority to support the premise that either a broiler or oven is
inherently dangerous. Although inconsistent with the notion an oven or broiler
is inherently dangerous, plaintiff also contends defendant is liable to her if he
were aware of the condition that made the broiler and oven dangerous.
A-0953-17T1 6 In support of this latter contention, plaintiff cites the following from the
Second Restatement of Torts:
Undisclosed Dangerous Conditions Known to Lessor:
(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others . . . for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.
[Restatement (Second) of Torts § 358 (Am. Law Inst 1965) (emphasis supplied).]
We note that, to establish premises liability, the plaintiff bears the burden
of proving the premises owner breached a duty of care owed to him or her.
Jerista v. Murray, 185 N.J. 175, 191 (2005). Under New Jersey law, "landlords
and business owners should be liable for foreseeable injuries that occur on their
premises." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997).
This duty arises out of the fact landlords and business owners "are in the best
A-0953-17T1 7 position to control the risk of harm. Ownership or control of the premises, for
example, enables a party to prevent the harm." Ibid. (citation omitted).
However, the owner of premises generally is not liable for injuries caused
by defects for which he had no actual or constructive notice and no reasonable
opportunity to discover. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563
(2003). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an
element of the cause of action, that the defendant had actual or constructive
knowledge of the dangerous condition that caused the accident." Ibid.
Here, the flaw in plaintiff's argument is that she did not identify the
condition that made the broiler or oven dangerous, let alone that defendant was
aware of it. In fact, she did not proffer any competent evidence about what
caused the fire. Without evidence of the defect or the condition that allegedly
made the broiler or oven dangerous, plaintiff's argument must fail.
Plaintiff suggests that the fact the oven and broiler did not work before
the fire placed defendant on notice a dangerous condition existed within the oven
or broiler. We reject this argument, because there is no evidence that what
precluded the oven and broiler from heating up caused the fire or, for that matter,
was a dangerous condition. For the same reason, we must also reject plaintiff 's
theory that defendant's failure to promptly repair the range was a breach of the
A-0953-17T1 8 lease and that such breach caused her damages. As there is no evidence the
inability of the broiler or oven to heat up is related to the fire, there is no basis
to find defendant's breach of the lease caused plaintiff's damages.
Plaintiff notes that the local fire department's written report states the fire
was caused by a "mechanical failure, malfunction" in the range. She argues this
report provides sufficient evidence to establish defendant breached a duty of
care to her and that such breach was a proximate cause of the fire.
Our review of this report reveals it is merely a form that includes certain
conclusory information. There is a statement in the report that the fire was
ignited due to a mechanical failure or malfunction, but the report does not
expound upon what the mechanical failure or malfunction was and how such
failure or malfunction caused the fire. The opinion in the fire department report
is clearly net and therefore inadmissible. See Townsend v. Pierre, 221 N.J. 36,
53-54 (2015). Further, there is nothing in the report that reveals the purported
mechanical failure or malfunction was one about which defendant knew or
should have known.
Plaintiff also argues defendant's experts' reports support a conclusion
defendant was liable to her for the damages she sustained as a result of the fire.
Although defendant named Wharton and Ricciardi as experts he intended to call
A-0953-17T1 9 at trial, "a party may call to the witness stand the other party's identified expert
witness." In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167, 182 (App.
Div. 2012) (citing Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 302 (2006)).
However, as previously noted, the reports of defendants' experts clearly do not
support but are damaging to plaintiff.
Finally, plaintiff contends she does not need expert testimony to prove her
causes of action against defendant. We conclude this argument is without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0953-17T1 10