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Dowler v. Boczkowski

March 25, 1997


On appeal from the Superior Court, Appellate Division.

The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi and Stein join in the opinion of Justice Coleman.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Dowler v. Boczkowski (A-44-96)

Argued November 4, 1996 -- Decided March 25, 1997

Coleman, J., writing for a unanimous Court.

This appeal raises two issues: 1) whether the owner of a single-family rental property is under a duty to install one or more smoke detectors in the rented home when not required by law; and 2) whether an owner who installs one smoke detector in such a home can be held liable for injuries caused by a fire when the alleged breach of duty is based on the placement of the smoke detector.

Ronald and Catherine Boczkowski (the owners) purchased a two-story single-family home in Lawrenceville, New Jersey in 1978. The home had been built in 1960. The owners did not live in the home; instead, they used it as rental property. Before renting the house, the owners had installed a smoke detector on the second floor level where the bedrooms are located. If the smoke detector was removed by an outgoing tenant, the owners would install another smoke detector before the next tenant took possession of the home.

William and Susan Dowler became tenants under a lease on January 19, 1988. The lease did not contain any provision concerning a smoke detector. Prior to the Dowlers taking possession, the owners had relocated the smoke detector to a downstairs hallway. The smoke detector was battery operated and was designed to beep when the battery was weak. After the Dowlers took possession of the home, neither they nor the owners performed any maintenance on the smoke detector.

On June 23, 1988, one of Mr. Dowler's partially extinguished cigarettes was accidentally thrown into the a trash container by Mrs. Dowler. The cigarette ignited the trash container while Mr. Dowler was asleep. A fire spread and Mr. Dowler sustained serious burn injuries. Mrs. Dowler claims that the smoke detector did not activate.

On February 27, 1989, the Dowlers filed a personal injury action against the owners, alleging that the owners negligently failed to provide a fire protection system to warn the tenants of fire. On a motion for summary judgment filed by the owners, the trial court dismissed the complaint as a matter of law, concluding that there was no duty on the part of the owners to provide a fire protection system.

On appeal, a majority of the Appellate Division reversed the decision of the trial court, viewing the case as one involving the negligent repair of a smoke detector based on the owners' change of the location of the smoke detector to the downstairs. The court determined that, although a landlord is not liable for nonfeasance when there is no duty to repair, once the landlord voluntarily undertakes a repair, he or she may be liable for not doing enough. The majority found that a jury question existed as to whether the owners were negligent in placing a smoke detector in the first floor hallway rather than near the second floor bedrooms. One member of the appellate panel Dissented, finding that there was no authority to impose a duty on the landlord of a single-family home to install smoke detectors when the landlord has relinquished the entire premises to the tenant. The Dissent also concluded that the majority had misapplied Bauer v. 141-149 Cedar Lane Holding Co..

This matter comes before the Court as an appeal as of right based on the Dissent in the Appellate Division.


The covenant of habitability and livability did not require the installation of smoke detectors in single-family homes before the obligation was created by statute and implementing regulations. Because no law required a smoke detector in the home that the Dowlers were renting, the placement by the landlord of the smoke detector away from the bedroom area was not negligent as a matter of law.

1. In Bauer, this Court held that in the absence of an agreement providing otherwise, a landlord is under no obligation to make repairs or remedy defects that either existed at the beginning of the tenancy or developed thereafter. However, when the landlord voluntarily undertakes to perform a repair, the landlord is obligated to perform the work in a reasonably careful manner and is liable in damages for a failure to do so. Here, the Appellate Division was mistaken when it characterized the installation of the smoke detector as a repair for the purposes of applying Bauer. This is not a defective repair case; there is no evidence that the smoke detector malfunctioned because of the way in which it was installed. Furthermore, based on the definitions and usage of the term "repair," the addition of a smoke detector to a single-family home does not constitute a repair. Moreover, Bauer does not control because the smoke detector was installed prior to the Dowlers' tenancy. (pp. 4-10)

2. There was no representation or assurance by the owner/landlord that the premises contained an early alert smoke detector and fire alarm system. The location of the detector was obvious to the Dowlers and did not create either a latent or dangerous condition. Therefore, this is also not a latent defect case. (p. 10)

3. There is an implied covenant of habitability and livability for residential dwellings. This covenant gives the tenant an additional remedy of remaining in possession, making the repairs, and deducting the cost of the repairs from future rents. A breach of this covenant may expose the landlord to liability for personal injuries caused by the breach. Here, the alleged negligent installation of the smoke detector did not affect the habitability of the home as defined by relevant case law. The absence of the smoke detector on the second floor was readily apparent to the Dowlers. They chose not to make the change and deduct the cost from future rent. (pp. 10-13)

4. The provision of the BOCA Code requiring smoke detectors in all residential dwelling units constructed after January 1, 1977 does not apply here because this dwelling was built in 1960. Moreover, the amendment to the Hotel and Multiple Dwelling Law requiring the installation of smoke detectors is inapplicable because the home in question is not a multiple dwelling as defined in the statute. The Uniform Fire and Safety Act was amended in 1991 to extend the obligation for the installation of smoke detectors to existing one- and two-family dwellings built before January 1, 1997. However, this statute affords no basis of relief because at the time of the fire, the statute did not require smoke detectors in single-family rentals. Therefore, no law required a smoke detector or otherwise regulated the placement of smoke detectors in the Dowler residence in 1988. (pp. 13-14)

Judgment of the Appellate Division is REVERSED and the judgment of the trial court dismissing the complaint is REINSTATED.


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