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Hoagland v. Gomez5/30/1996
The opinion of the court was delivered by
BROCHIN, J.A.D.
While plaintiff Michelle Hoagland was a social invitee in a one-family house in East Brunswick which her hosts were renting from defendant William Gomez, she was badly burned as the result of a fire that was started by food cooking on a burner of an electric stove in the kitchen and that quickly spread throughout the house. She sued Mr. Gomez, the landlord, alleging that she had been injured as the result of his negligence.
Before the completion of discovery, Mr. Gomez moved for summary judgment. The record which has been furnished to us is sparse, but the arguments presented to the summary judgment court imply that at that stage of the law suit, Ms. Hoagland predicated the landlord's liability primarily on his failure to install a smoke detector in the house. Mr. Gomez argued that he had no statutory or common law duty to install a smoke detector. In opposition to the motion, Ms. Hoagland relied on a New Brunswick ordinance which incorporated the BOCA code (model code of the Building Officials and Code Administrators' International, Inc.) which required the installation of a smoke detector in the house in which she had been burned. Ms. Hoagland also argued that summary judgment should not be granted because discovery had not yet been concluded and, therefore, she had not yet retained an expert.
The motion Judge entered summary judgment in favor of Mr. Gomez. She held that there was neither decisional law nor a State statute which made a landlord who had rented a one-family house to a tenant liable for failing to install a smoke detector. She ruled that the East Brunswick ordinance which incorporated the BOCA code provision was immaterial because civil liability in tort could not be predicated on the violation of a municipal ordinance. The motion Judge also held that the incomplete state of discovery was no bar to summary judgment because the question of the landlord's duty was entirely a question of law.
Mr. Gomez cites Foley v. Ulrich, 50 N.J. 426, 236 A.2d 137 (1967), rev'g, 94 N.J. Super. 410, 419 (App. Div. 1967); Liptak v. Frank,206 N.J. Super. 336, 502 A.2d 1147 (App. Div. 1985), certif. denied, 103 N.J.471 (1986); and Sewall v. Fox,98 N.J.L. 819, 121 A. 669 (Sup. Ct. 1923), in defense of the holding that civil liability in tort cannot be predicated on the violation of a municipal ordinance. However, these cases do not support that proposition. Foley is totally irrelevant. It holds only that a landowner who increases the hazard of a slippery sidewalk adjacent to his property by negligently attempting to clear it of ice and snow is not liable in damages to someone who falls and is injured as a result. There is no mention of an ordinance. Liptak and Sewall do refer to the breach of a municipal ordinance. They hold that an ordinance which requires a landowner to keep the sidewalk adjacent to his property free from ice and snow does not make the landowner liable in damages to someone who falls on the sidewalk because of his failure to remove the ice and snow. These and other similar cases stem from Fielders v. North Jersey St. Ry. Co., 68 N.J.L. 343, 53 A. 404 (E. & A. 1902). An analysis of Fielders demonstrates that Liptak and Sewall are also inapplicable to the present case.
Fielders holds that the ordinance at issue in that case, one which required street railways to fill potholes between their tracks, was enacted "to impose upon the street railway company a share of the public burdens of the municipal government," id. at 355, and therefore that it did not create a duty whose breach would result in tort liability. The opinion distinguishes between ordinances like the one
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