For affirmance and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
In this tort case sounding only in negligence, the infant plaintiff, son of a tenant, sought damages against defendants-landlords for injuries suffered in the apartment rented to his parents. No per quod claim was interposed by the parents. Upon trial, at the close of plaintiff's proof, defendants' motion for involuntary dismissal was granted on the ground that no actionable negligence had been shown. On appeal the Appellate Division, with one judge dissenting, reversed and remanded for a new trial holding that a jury question was presented as to the landlords' liability. 103 N.J. Super. 271 (App. Div. 1968). Defendants then sought further review in this Court. R.R. 1:2-1(b).
Defendants are the owners of a two-family house, both floors of which were rented. In 1962, Mr. and Mrs. Michael Coleman became tenants of the first floor. They had two young children at that time. Thereafter the infant-plaintiff, Mark David Coleman, was born. He was just over a year old on April 6, 1964 when he was injured. Although he had not yet begun to walk, he had been crawling around the five-room apartment for some months.
The house had a central heating system. Hot water type of heat emanated from a single furnace located in the cellar. As part of the rental agreement defendants furnished heat to the tenants. There were radiators in each room and heat was sent into them through a system of pipes connected with the furnace. A thermostat regulating the temperature in both apartments was located in the Coleman apartment. In addition each radiator had a valve attachment by means of which heat flowing to a single radiator could be cut off. The radiators, described as about three feet high and three feet long, were fed by metal pipes which came up through the floor from the furnace. These up-pipes extended some distance above the floor level. The up-pipe in question, being described as extending 6 to 10 inches above the floor, joined another short pipe which was parallel with the floor and was connected with the radiator at a right angle. The cut-off valve mentioned above was located at the top of the up-pipe connection. Neither Mr. or Mrs. Coleman had ever used the valve. From the inception of the tenancy the up-pipe was not covered by any protective asbestos or insulating material, nor was there any shield or device to prevent contact with it. The same was apparently true of all the radiators, except that the one involved in this case had what appeared to be a removable flat metal cover resting on the top and extending down its sides for a few inches. The remainder of the radiator was unprotected.
On the afternoon of April 6, 1964 the infant Mark was sitting on his mother's lap in the living room She put him down on the floor and he began to crawl about. He crawled to the entrance of the next room, then down one step and apparently started to crawl to the right to go into a bedroom. Mrs. Coleman heard a cry, then a whimper. She walked over to pick him up and she saw that his left foot was caught somehow between the radiator and the up-pipe and that the lower part of his leg was caught against the pipe. She released his foot and on picking him up noticed that the flesh on the portion of the left leg which had been against the
pipe was burned away. She called the First Aid Squad immediately and took the baby to the hospital. Some idea of the temperature of the pipe can be gathered from the fact that medical examination at the hospital disclosed he had second and third degree burns of the lower left leg, although according to Mrs. Coleman he could not have been in contact with the pipe for more than one minute.
Mrs. Coleman testified she had never touched the pipe and had no idea it got hot enough to burn anyone the way it did her son. Mr. Coleman also said he had never consciously or accidentally come in contact with the pipe and likewise had no idea it would be hot enough to cause such burns. The day after the occurrence he deliberately touched it lightly and quickly with his fingers and in doing so burned them because he had not realized the extent of the heat.
The above factual outline represents the state of evidence at the close of plaintiff's case. In granting defendants' motion for dismissal, the trial court held the facts insufficient to show any violation of a legal duty owed by the landlords to the infant plaintiff. Although the articulation of the basis for the holding is not clear from the record, it seems to have been founded upon the view that mere proof that the up-pipe or the radiator or both were not shielded by a covering or a guard or some protective device was not sufficient to create an issue of defendants' negligence for determination by the jury. In reversing this ruling the Appellate Division majority, noting that as parts of the central heating system both the pipe in question and the radiator to which it was attached were under the landlords' control, held that they were under a duty to the tenants and members of the tenants' family to exercise due care to maintain the pipe in a reasonably safe condition. It then declared that the circumstances of the child's burn from the exposed pipe presented a jury question as to whether defendants had failed in the discharge of that duty and so were negligent.
Our consideration of defendants' appeal from the Appellate Division's ruling begins with an awareness of
the long-standing principle that on a rental of an apartment in a two-family dwelling, the tenant ordinarily takes the portion of the premises he rents as it is. The law assumes that he has made an inspection and is satisfied to accept the rented portion in its existing condition. In the absence of an agreement to make repairs, the landlord is under no obligation to do so. That burden falls upon the tenant. Reste Realty Co. v. Cooper, 53 N.J. 444 (1969); Michaels v. Brookchester, Inc., 26 N.J. 379 (1958); Bauer v. 141-149 Cedar Lane Holding Co., 24 N.J. 139 (1957). But where the dwelling contains two or more apartments which are rented to separate tenants, and the landlord reserves certain portions thereof or 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. In such situations the law imposes upon the landlord the duty of maintaining them in a reasonably safe condition for the use and enjoyment of the tenants. If he fails to do so and such failure ...