Meier v. D’Ambose, A-2555-09T1; Appellate Division; opinion by Ashrafi, J.A.D.; decided and approved for publication April 28, 2011. Before Judges Fuentes, Gilroy and Ashrafi. On appeal from the Law Division, Monmouth County, L-2799-08. DDS No. 27-2-1914 [16 pp.]

Plaintiff Theresa Meier, individually and as the representative of the estate of her brother, Ralph Ciccone, appeals from an order dismissing by summary judgment her negligence and wrongful-death complaint. Ralph Ciccone died of smoke inhalation from a fire at the house he was renting from defendant Pasquale D’Ambose. At the time of the fire, the house had the same furnace that was in place when defendant purchased the property. During the intervening eight years, defendant never had the furnace inspected and only arranged for its repair on one occasion.

Defendant and Ciccone executed a written lease for use and occupancy of the entire premises. Defendant had the property inspected by the municipality and received a certificate of occupancy. The lease required Ciccone to “take good care of the House and all equipment and fixtures in it” and specifically, to “keep the furnace clean.” The furnace was located in a crawl space under the floor and could be seen through an open grate. Defendant testified at deposition that there was no need to go down into the crawl space to clean the furnace. The lease required defendant landlord to “make any necessary repairs and replacements to the vital facilities serving the House within a reasonable time after notice by the Tenant.” Furthermore, the lease granted defendant “access to the House on reasonable notice to the Tenant” to “inspect the House” and to “make necessary repairs, alterations, or improvements.” Defendant conceded at deposition that, under the terms of the lease, it was his responsibility rather than Ciccone’s to repair the furnace.

The Monmouth County Fire Marshall’s Office indicated in its report that “the fire origin was located in the crawl space, center of the hallway” and that “[a] malfunction of the natural gas fired furnace could not be ruled out as to the possible cause of this fire.” Plaintiff engaged an independent company to investigate and analyze the fire. In his report, professional engineer Robert Malanga concluded that “[t]he Fire was caused by improper operation of the Floor Furnace; specifically, as due to the continued existence of a severely deteriorated Flue Connector.”

In granting summary judgment to defendant, the Law Division concluded that defendant had not breached any duty owed to Ciccone. The issue presented on appeal is whether the owner-landlord of a single-family residence had a duty to the tenant to maintain, and thus periodically inspect, the furnace to prevent a hazardous condition.

Held: In the absence of a lease provision to the contrary, defendant landlord had a duty to the decedent to maintain the furnace and, thus, to inspect it periodically to ensure that it was in safe operating condition and not creating a fire hazard. Fulfillment of that duty did not require notice of a defect. In the language of Restatement (Second) of Torts § 358, that duty gave the landlord reason to know of a dangerous condition of the furnace in his property.

The trial court reasoned that defendant satisfied any duty of care owed to Ciccone by having the municipality inspect the property at the beginning of the tenancy, and by hiring a repairman to fix the furnace in response to the only complaint by Ciccone involving the furnace. The court characterized the deteriorated flue pipe as a “latent defect” for which defendant was not responsible because he had no notice of the defect. Relying on Patton v. Texas Co. and Szeles v. Vena , cases which involved injuries caused by allegedly defective stairs in leased premises, the trial court held as a matter of law that defendant did not have a duty to make periodic inspections of the furnace to discover any such defects because Ciccone was in sole possession of the premises.

However, in Reyes v. Egner , the Appellate Division later held that the landowner’s duties in such circumstances “should be defined consistent with the precepts of Section 358″ of the Restatement (Second) of Torts (1965). The decision in Reyes focused on whether the lessor and the lessee had “reason to know” of a condition that “involves unreasonable risk of physical harm.” Also considered in the analysis was that the dangerous condition was a violation of construction codes. Here plaintiff alleges, with the support of an expert report, that fire code violations were a cause of the fire and resulting death. As reflected in the fire code, preventing a hazardous condition of a furnace goes beyond a duty to make repairs when the landowner is put on notice of a defective condition. Unlike steps, a furnace is operating equipment that can be a fire hazard, and it requires periodic inspection and maintenance to ensure that it is in safe operating condition. The question here is who as between the landlord or the tenant had “reason to know of the [defective] condition” of the furnace because he had a duty to conduct periodic inspections.

The appellate panel concludes that defendant lessor had a duty to maintain the furnace so that it was not dangerous to persons or property, and that such duty required periodic inspections to discover dangerous defects. The language of the lease did not shift responsibility for inspection and maintenance of the furnace to the tenant. Furthermore, the lessor has a nondelegable duty of care to third parties to avoid a hazardous condition of his property.

Having failed to inspect the furnace, defendant was not entitled to summary judgment dismissing plaintiff’s claim of negligence. The matter is reversed and remanded for trial.

— By Debra McLoughlin

For appellant — David P. Affinito (Dell’Italia Affinito & Santola). For respondent — Edward L. Thorton (Methfessel & Werbel; Thorton and Amanda J. Schmesser on the brief).