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Scully v. Fitzgerald

March 24, 2004

DANIEL SCULLY, PLAINTIFF-RESPONDENT,
v.
WILLIAM FITZGERALD, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(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).

ALBIN, J., writing for a Majority of the Court.

In this appeal, the Court considers whether the trial court properly granted summary judgment in favor of a landlord whose commercial tenant alleged that he sustained damages as a result of a fire that originated on an adjoining property, also owned by the landlord.

Since 1988, plaintiff Daniel Scully operated a travel agency from a storefront that he leased in a one-story commercial building on Union Boulevard in Totowa. Attached to the back portion of that commercial structure was a two-story building that housed two apartments, one on each floor. In the rear of the first-floor apartment was a storage area over which hung a deck that extended from the second-floor apartment. Defendant William Fitzgerald owned both the commercial building from which Scully operated his travel agency and the two-story apartment building.

On July 18, 1999, a fire that started in the storage area of the two-story apartment building spread and destroyed most of that building. The attached commercial building from which Scully operated his business also was significantly damaged by smoke and water. Scully suffered a total loss of the office property in the leased premises, including furniture, computers, records, and copy machines, and was forced to relocate his business.

In the area where the fire started, defendant Fitzgerald had stored a gas engine lawn mower, a gas engine snow blower, gasoline, mulch, old papers, and other refuse that had accumulated over time, construction debris, and garbage that was both in and out of trash cans. The storage area was not enclosed and was freely accessible to others. The second-floor tenants regularly smoked cigarettes on the deck above the storage area and discarded the butts in such a way that they landed in and near the storage area.

The Chief of the Totowa Fire Department determined that the fire originated in the storage area. He testified at depositions that although he could not pinpoint the exact cause of the fire, he was able to eliminate several potential sources and that his best guess was that the fire started accidentally when a lit cigarette or match ignited loose debris in the storage area. Similarly, plaintiff's fire expert concluded that the storage of construction materials and equipment containing gasoline, etc., in an open and unsecured area posed an unreasonable risk of risk of fire that could have been avoided by properly securing the area or by prohibiting smoking in the area. The landlord's failure to do so, in his opinion, was the proximate cause of the fire. Finally, a defense investigator also concluded based on the physical evidence, that the fire originated in the storage area and that the most probable cause of the fire was related to a human act.

Scully filed a compliant, alleging that he suffered loss of property and income as a result of Fitzgerald's negligent maintenance of the Union Boulevard property. Fitzgerald moved for summary judgment on the ground that Scully had failed to offer any proof that Fitzgerald negligently maintained the storage area. The trial court granted Fitzgerald's motion for summary judgment on the basis that Scully failed to produce evidence to show that Fitzgerald violated a duty that was the proximate cause of the damages. Specifically, the court found that plaintiff's expert had not identified a standard of care by reference to a building or fire code and, as a consequence, the court classified his conclusions as a net opinion. The court further suggested that plaintiff could not prove his claim without identifying a code or engineering standard that was violated by the landlord, reasoning that everyone was vulnerable to people flipping cigarettes onto their property and that such circumstances did not necessarily establish liability on the part of the landowner. Thus, the court concluded that plaintiff had not established that defendant owed him a duty.

In an unpublished opinion, the Appellate Division reversed the trial court's grant of summary judgment, stating that plaintiff was entitled to show that defendant had acted unreasonably in maintaining the storage area in light of defendant's knowledge that his tenants discarded cigarettes that threatened to ignite flammable materials. The trial court's holding that an expert's opinion was required to establish defendant's negligence was rejected by the panel, which found that the issues in dispute fell within the common knowledge of jurors. Thus, the panel held that plaintiff did not have to show that defendant violated a code or other regulatory standard provided he could prove the breach of a duty of care owed to plaintiff that was the proximate cause of the loss.

The Supreme Court granted Fitzgerald's petition for certification.

HELD: Defendant landlord owed a common law duty to his tenant to maintain his storage area in a reasonably safe condition, and to exercise reasonable care to guard against the risks associated with the start or spread of a fire by the negligent or intentional act of a third party, such as a tenant; the trial court erred when it dismissed plaintiff tenant's complaint based on his failure to produce evidence that the landlord violated a statutory standard to establish the existence of a duty.

1. A landlord has a duty to exercise reasonable care to guard against foreseeable dangers arising from use of those portions of the rental property over which the landlord retains control. That duty requires the landlord to maintain the property in a reasonably safe condition and to take steps to curtail the dangerous activities of tenants of which he should be aware that pose a hazard to the life and property of other tenants. (pp. 6-8)

2. A landowner will be liable if he maintains his property in the condition of a tinderbox and takes inadequate precautions to guard against the risk of fire when it is reasonably foreseeable that an errant spark from a stranger's discarded match or cigarette will ignite a blaze that will spread and engulf neighboring properties. In those cases, the unsafe and dangerous condition of the property gives rise to the foreseeable threat of fire. (pp. 8-12)

3. Fitzgerald's exposed collection of papers and refuse were flammable and potentially dangerous. Moreover, there was a heightened risk that a fire might be ignited accidentally because tenants routinely discarded cigarettes within the immediate vicinity of the flammable materials. (p. 15)

4. In the circumstances of this case, the landlord defendant owed his tenant a common law duty to maintain his storage area in a reasonably safe condition, and to exercise reasonable care to guard against the risks associated with the start or spread of fire by the negligent or intentional act of a third party, such as a tenant. (pp. 13-14)

5. Plaintiff tenant is not required to identify a fire or building code or other statutory standard to establish a duty that defendant landlord owed to plaintiff. A jury does not need a fire expert to explain to it the dangers that might follow when a lit cigarette is thrown into a pile of papers or other flammable material. The duty involved in this case was not of an esoteric nature as to require the assistance of an expert. (pp. 14-15)

6. A competent opinion addressing the cause of a fire must be framed in terms of probability or reasonable degree of certainty. The fire chief's opinion in this case is inadmissible because it was founded on a mere possibility that a discarded cigarette or match started the fire accidentally. (pp. 15-16)

7. Even without the fire chief's testimony, plaintiff submitted sufficient evidence to establish a prima facie case of defendant's negligence, based on plaintiff's expert's report. That report, which concluded that the probable cause of the fire was the combustible combination of a lit cigarette coming into contact with flammable material in the storage area, did not express a net opinion because it was supported by facts contained in the reports of other fire investigators, the answers to interrogatories, and the deposition testimony of the fire chief. (pp. 16-18)

Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED for further proceedings consistent with this opinion.

JUSTICE VERNIERO has filed a separate concurring opinion in which JUSTICE LaVECCHIA joins. Justice Verniero joins in the Court's opinion based on its precise statement of facts. As a general proposition, he believes there is nothing especially hazardous about mulch and other debris being stored underneath an outdoor deck, and considers these everyday conditions that should not expose property owners to liability. Rather, Justice Verniero believes that it is the condition of the landlord's property, coupled with plaintiff's claim concerning the hazards posed by the continual discarding of cigarette butts on the property itself, that makes this case appropriate for jury review. He would have concluded differently if only a few errant butts had been found in the area or if the landlord had no reasonable means of being aware that the butts were present at all.

CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE VERNIERO has filed a separate concurring ...


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