The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on defendants' motions for summary judgment*fn1 on all claims in plaintiffs' complaint.
For the reasons expressed below, defendants' motions will be granted in part and denied in part.
This matter concerns plaintiffs' alleged injuries resulting from mold in the townhouse plaintiffs rented from defendants. On August 4, 1998, plaintiff Robin Sanders entered into a lease with defendants, Michael and Marie Rosenberg, to rent their townhouse in Mays Landing, New Jersey. Ms. Sanders lived there with her three children, Roland, who is a minor, and Roslyn and Rachelle, who are both adults. Roslyn moved out in November 2003, and the other three moved out on January 27, 2004.
During their tenancy, plaintiffs claim that the townhouse suffered from multiple leaks, which caused mold to develop. Plaintiffs claim that they saw water stains when they moved into the townhouse, and first saw active leaks in March 1999. Plaintiffs asked defendants to repair the leaks, but even though defendants sometimes attempted to repair the leaks, the leaks persisted and mold developed. Plaintiffs allege that this mold caused them repeated and continuous respiratory illnesses, sleep disorders, and other illnesses. Plaintiffs began to see physicians about their illnesses in approximately October 2003.
In December 2003, Ms. Sanders hired Coastal Environmental Compliance, LLC to conduct an indoor air quality and mold investigation. A follow-up visit and testing on the property was conducted on January 26, 2004. Plaintiffs left the property at the end of January 2004 because the defendants were going to sell it.
On December 29, 2005, plaintiffs filed a three-count complaint against defendants in New Jersey state court, alleging negligence, breach of contract, and violation of New Jersey's Consumer Fraud Act. Defendants removed the case to this Court on March 24, 2006, and are now moving for summary judgment in their favor on the three claims against them. Plaintiffs have opposed defendants' motions.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.
B. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Defendants have moved for summary judgment on each of plaintiffs' three claims against them. They will be addressed in turn.
1. Plaintiffs' Negligence Claim
Plaintiffs allege that defendants were negligent in their repairs of the water leaks on the property, and that defendants' negligence in repairing the leaks caused mold, which then caused plaintiffs' health problems. Defendants have moved for summary judgment on this claim because plaintiffs have not provided the required expert witness or evidence to prove the causation element of their claims.
A landlord is under a common-law duty to exercise reasonable care to guard against foreseeable dangers arising from the use of the landlord's premises. Ellis v. Caprice, 233 A.2d 654, 658 (N.J. Super. Ct. App. Div. 1967), cert. denied, 235 A.2d 901 (N.J. 1967). Where the landlord fails to do so and "such failure results in injury to the tenant or persons on the premises as members of his family . . ., ordinarily the landlord is liable for the injury." Coleman v. Steinberg, 253 A.2d 167, 170 (N.J. 1969). This duty, however, does not make the landlord an insurer for all injuries that occur to a resident or visitor of the premises. "Negligence in this context requires not only proof of the condition which caused the injury but that the condition was known or should have been known by the landlord prior to the occurrence, so that he had an opportunity to correct it." Dwyer v. Skyline Apartments, Inc., 301 A.2d 463, 465 (N.J. Super. Ct. App. Div. 1973), aff'd, 311 A.2d 1 (N.J. 1973). Further, even though the landlord has a particular duty to his tenants, in order to state a claim for negligence based on mold exposure, plaintiffs must prove (1) ...