On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, ATLL-2360-03.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2005
Before Judges Conley, Winkelstein and Sabatino.
Plaintiff Sandra Siddons owns a unit in the Country Place Condominium that was flooded by water from a broken dishwasher hose in the unit owned by the Cook defendants. The Country Place Condominium Association (the Condominium Association) was aware that similar hoses had previously broken in other condominium units. Plaintiff sued the Cooks and the Condominium Association for damages. The Law Division dismissed her complaint on summary judgment. The judge found the Cooks were neither strictly liable nor negligent, and that the Condominium Association owed no duty to warn plaintiff about the potential flooding hazard.
We agree with the motion judge that the Cooks were neither strictly liable nor liable in negligence for the damages to plaintiff's unit. We disagree, however, with the judge's conclusion that the Condominium Association had no duty to warn plaintiff of the potential flooding hazard given its knowledge of the potential problem. Consequently, we affirm the dismissal of the complaint as to the Cooks and reverse the dismissal as to the Condominium Association.
The material facts are not in dispute. Plaintiff owned a condominium unit located directly below the Cooks' unit. On October 14, 2002, plaintiff discovered that her unit was being flooded from the unit above. The source of the water was determined to be a worn or broken dishwasher hose in the Cooks' unit. Plaintiff claims property damages in excess of $25,000.
Wendy Cook purchased her unit from the developer in 1982 with the dishwasher already installed. After she and David Cook married in 1992, they moved from the unit, leasing it to various tenants through the date the dishwasher hose broke. While they lived in the unit, the Cooks never experienced problems with the dishwasher. David Cook testified that he occasionally inspected hoses located under the sink for "cracks, dry rot, [and] bubbles." The damaged portion of the dishwasher hose, however, was located under the dishwasher and was not accessible.
The Cooks' tenant at the time of the incident was Leonard Siedlarz.*fn1 When deposed, Siedlarz testified that when he first moved into the unit, the dishwasher was not draining properly. He reported the problem to the Cooks who had it repaired the following day. There was no evidence of a leak at that time.
On the day of the incident, the dishwasher was not in use nor had it been used for several months. After being notified of the leak by plaintiff, Siedlarz saw water on his kitchen floor coming from underneath the sink. A plumber determined that the leak was coming from a plastic hose. The plumber certified that the visible portion of the feed line (the hose) was in good condition; it was the portion that was not visible without pulling out the dishwasher that had split.
Three units in the condominium development experienced similar problems with their dishwasher hoses prior to the incident at issue here. Each affected unit owner or occupier had notified the administrator of the Condominium Association as to what had occurred. The administrator responded that the broken hoses were not the Condominium Association's responsibility.
Given this background, we first address plaintiff's claim that the Condominium Association had a duty to warn the unit owners of the potential problem with the dishwasher hoses. The trial judge concluded that the Condominium Association had no such duty. We respectfully disagree.
A condominium association is composed of unit owners. N.J.S.A. 46:8B-9, -12, -12.1. It is responsible for the administration and management of the condominium. N.J.S.A. 46:8B-8, -12. Its operations are informed by the Condominium Act, N.J.S.A. 46:8B-1 to -38 (the Act), as well as the contents of the master deed and the condominium by-laws. N.J.S.A. 46:8B-13, -14, -15. Among the powers afforded to a condominium association is the right to "have access to each unit from time to time . . . as may be necessary for the maintenance, repair or replacement of any common elements therein or accessible therefrom or for making emergency repairs necessary to prevent damage to common elements or to any other unit or units." N.J.S.A. 46:8B-15(b). A unit owner ...