On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication May 30, 1996.
Before Judges Muir, Jr. and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the court was delivered by
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 there at issue, which it found to have been enacted in the exercise of the taxing power to benefit the government by imposing duties on individuals that would otherwise have to be performed by the government itself, and ordinances enacted in the exercise of the police power to impose duties on some class of persons for the benefit of the public or some category of its members. Fielders holds that only the government, not an injured individual, can sue for violation of an ordinance enacted for the government's benefit. But the opinion expressly recognizes, and discusses at length, the principle that if a municipal ordinance has been enacted in the exercise of the police power for the benefit of some class of persons, an individual within the protected class who proves that he has suffered injury as the result of its violation can recover an award of damages in a civil suit against the violator.
Fielder and cases that followed it were cited by our Supreme Court in Yanhko v. Fane, 70 N.J. 528, 536, 362 A.2d 1 (1976), as stating "settled law" which has "consistently refused to find that ordinances requiring landowners to repair or maintain abutting sidewalks create a duty running from the property owner to the injured plaintiff, unless a statute explicitly establishes civil liability." Liptak and Sewall held that civil liability for personal injury could not be based on a violation of a snow cleaning ordinance because, pursuant to this "settled law," such ordinances are enacted for the benefit of the municipality and not of the public. Those cases do not stand for the proposition that an ordinance can never evidence or establish a duty which may be the basis for a tort action.
Carrino v. Novotny, 78 N.J. 355, 396 A.2d 561 (1979), demonstrates that the violation of a municipal ordinance can be evidence of a breach of duty which makes the violator liable for damages. The plaintiff in that case was a passenger who was injured in a collision that occurred because a truck was parked so as to partially block the traveled lanes of a narrow street, forcing passing cars onto an icy patch. A local ordinance prohibited trucks from parking on that street at night. The trial court charged the jury that violation of the ordinance was evidence of negligence. Id. at 359. This court's opinion, quoted in the opinion of the Supreme Court, declared:
It is settled that where a statute or ordinance establishes a certain standard of conduct, one of the class for whose benefit it was enacted obtains the benefit thereof in an action for negligence if the breach of the enactment was the efficient cause of the injury of which he complains. But the provisions of the ordinance must be "germane to the type of hazard involved in the defendant's asserted duty." [Citations omitted.] The test to be applied therefrom is whether the parking prohibition of the ordinance is ...