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Cherry v. Whispering Waters Apartments

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 28, 2008

GLEN CHERRY, ADMINISTRATOR AD PROSEQUENDUM FOR THE ESTATE OF EMMA CHERRY, PLAINTIFF-APPELLANT,
v.
WHISPERING WATERS APARTMENTS, LTD., A LIMITED PARTNERSHIP, AND PIVNICK REALTY GROUP, INC., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-115-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 8, 2008

Before Judges Skillman and Yannotti.

This is an appeal from a summary judgment dismissing a wrongful death and survivorship action.

The decedent, Emma Cherry, was a tenant in an apartment complex owned by defendant Whispering Waters Apartments and managed by defendant Pivnick Realty Group. Mrs. Cherry lived by herself. In late 2003 and 2004, the decedent's sons, Glenn and James Cherry, noticed that their mother, who was then seventy- five, was showing signs of the early stages of dementia. Sometime in early February 2004, the sons decided that, for their mother's safety, they would disconnect the gas supply to her stove without telling her. After James Cherry turned off the valve that controlled the gas supply, Glenn Cherry orally informed an employee in defendants' management office that they had disconnected their mother's stove for safety reasons and that they did not want it to be reconnected until they had her medically evaluated. This oral notification was not confirmed in writing and was never acknowledged by defendants.

On February 19, 2004, Mrs. Cherry complained to defendants that her stove was not working. Consequently, an employee in defendants' building maintenance department was dispatched to Mrs. Cherry's apartment to fix the stove. The employee found that the valve that controlled the gas supply to the stove had been turned off, so he turned it back on.

Nearly two months later, on April 8, 2004, Mrs. Cherry suffered serious burns when her clothing caught fire as she was operating the stove. These burns eventually resulted in her death.

Her estate brought this action alleging that defendants had been negligent in turning the gas to Mrs. Cherry's stove apartment back on without first speaking to members of her family. The complaint alleged that defendants knew or should have known that members of Mrs. Cherry's family had disconnected the gas to her stove and that they were negligent in reconnecting it in response to Mrs. Cherry's complaint without first speaking with family members.

After the completion of discovery, defendants moved for summary judgment. The trial court granted the motion, stating in an oral opinion:

[T]he tenant was the only person who was authorized to have any contractual relationship to the landlord. And no one else had any authority to speak for the tenant.

And in this case, the request and the allegation of failure to heed the request, was from someone . . . who asserted that they had authority for, without demonstrating that there was any legal basis for any authority, or that they were looking after the interests of the tenant in making the request not to remove . . . a hazard that existed by virtue of a defect in the premises, but instead, to remove an essential service.

Unfortunately, the family member, or some members of the family, had absolutely no authority to request a withdrawal of essential services, or a continuation of withdrawal of essential services, of gas stove services, to the tenant.

In fact, if we consider some contrary factual situation, suppose the landlord had responded to that third party and not to the tenant. And suppose then the tenant installed her own alternative cooking facility, such as an electric hot pan situation, and burned and injured herself in that manner by herself substituting for the continued turned off gas service, or the stove, the landlord would find themselves jeopardized in that situation. And the only way to avoid that is to reinstate the gas service, which is exactly what they did.

It is, of course, critical, that there was no one with the authority, the legal authority, to speak for the tenant and request something different in the way of essential services than those . . . to which she was entitled and requested.

On appeal, plaintiff presents the following arguments:

I. THE TRIAL COURT ERRED IN RULING AN ADULT CHILD DOES NOT HAVE THE LEGAL AUTHORITY TO INITIATE SAFETY MEASURES FOR AN ELDERLY PARENT WITH DIMINISHED MENTAL CAPACITY.

II. THE LEGAL AUTHORITY OF THE CHILDREN TO TURN OFF THE GAS WAS NOT DISPOSITIVE OF THE LANDLORD'S DUTY OF CARE TO EMMA CHERRY.

III. THE TRIAL COURT ERRED IN DETERMINING A LANDLORD HAS NO AUTHORITY TO WITHDRAW AN ESSENTIAL SERVICE.

IV. UNDER THE FACTS AS PRESENTED, THE DEFENDANT HAD A DUTY TO HEED THE EXPRESS INSTRUCTIONS GIVEN AND NOT TURN ON THE GAS TO THE DECEDENT'S STOVE.

V. THE DEFENDANT, UPON FINDING THE GAS VALVE BEHIND DECEDENT'S STOVE INEXPLICABLY TURNED OFF, HAD A DUTY TO REASONABLY INVESTIGATE THE REASON WHY THE VALVE WAS OFF BEFORE TURNING THE GAS BACK ON.

We reject these arguments and affirm the grant of summary judgment in defendants' favor substantially for the reasons expressed by the trial court. We add the following brief supplemental comments. The decedent's family failed to apply for guardianship or other authorization to control the services to the decedent's apartment. Indeed, it appears that her mental condition at the time, which one doctor characterized as "mild dementia," would not have warranted such relief. Moreover, the decedent's family failed to provide defendants with any medical documentation that the decedent was no longer capable of managing her own affairs. Under these circumstances, defendants had no reasonable basis for refusing the decedent's request to reconnect the gas supply to her stove. Therefore, there is no factual foundation for finding that defendants breached a duty of care to the decedent.

Affirmed.

20080128

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