Sullivan, Foley and Lewis. The opinion of the court was delivered by Sullivan, S.j.a.d. Foley, J.A.D. (dissenting).
This is an appeal from the action of the trial court granting a judgment of involuntary dismissal at the close of the plaintiff's case. The basis for the court's ruling was its determination that plaintiff had not established a jury issue as to defendants' liability. For reasons hereinafter stated we reverse.
The following facts appear from the record. Plaintiff is the infant son of Mr. and Mrs. Michael Coleman who were tenants occupying the first floor in a two-family house owned by defendants. The premises contained a single heating system for the entire building, the furnace being located in the
cellar. Defendants, as part of the leasing agreement, furnished the heat to plaintiff's apartment. There was a thermostat in plaintiff's apartment to control room temperature.
The Colemans had lived in the apartment for about two years prior to the accident which occurred in April 1964. Plaintiff was approximately one year of age at the time and was playing on the living room floor in the apartment. He had crawled into another room when his mother heard him let out a cry and then he began to whimper. She went over to pick him up and found that his foot was caught between the wall and an uncovered pipe which was connected with the radiator. His leg was up against the pipe. When she freed his leg, she noticed that the side of his leg was "completely gone." The first aid squad was called and plaintiff was taken to the hospital where he was treated for burns.
In dismissing the case, the trial court indicated that no evidence of negligence had been presented and that the landlord could not be held responsible for plaintiff's injury.
This State adheres to the common law rule that a landlord owes to his tenant the duty of exercising reasonable care to guard against foreseeable danger arising from the use of the premises in connection with such portions thereof as remain within the landlord's control. Ellis v. Caprice, 96 N.J. Super. 539, 547 (App. Div. 1967). This duty extends to a heating system over which the landlord has retained control. Monohan v. Baime, 125 N.J.L. 280 (E. & A. 1940); Prosser, Law of Torts, § 63, p. 421 (1964); 2 Harper and James, The Law of Torts, § 27.17, p. 1518. Cf. Daniels v. Brunton, 7 N.J. 102, 108-109 (1951).
Plaintiff's injuries were caused by an uncovered pipe running to a radiator. The pipe was part of the central heating system over which the landlord retained control.
There is a split in authority as to whether a landlord may be held responsible for burns suffered by a tenant who comes in contact with exposed pipes in a leased apartment which are part of the central heating system maintained by the landlord. Typical of the cases holding that the landlord does
not retain control over those portions of the heating system within the leased apartment and therefore no liability exists is Yuppa v. Whittaker, 88 R.I. 214, 145 A. 2 d 255, 86 A.L.R. 2 d 788 (Sup. Ct. 1958).
Other decisions hold that an exposed pipe in an apartment extending from the central heating system is under the retained control of the landlord. These cases impose a duty on the landlord under the common law rule (supra) to exercise reasonable care to maintain the pipes in a reasonably safe condition. Thompson v. Paseo Manor South Inc., 331 S.W. 2 d 1 (Mo. App. 1959). See Annotation, "Landlord's liability for personal injury or death of tenant or his ...