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Theresa Meier, As Administratrix Ad Prosequendum of the Estate of v. Pasquale D'ambose

April 28, 2011

THERESA MEIER, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF RALPH CICCONE, AND THERESA MEIER, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
PASQUALE D'AMBOSE,*FN1 DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2799-08.

The opinion of the court was delivered by: Ashrafi, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 10, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

The opinion of the court was delivered by ASHRAFI, J.A.D.

Plaintiff Theresa Meier, individually and as the representative of the estate of her brother, Ralph Ciccone, appeals from an order of the Law Division dismissing by summary judgment her negligence and wrongful death complaint. The issue presented is whether the owner-landlord of a single-family residence had a duty to the tenant to maintain, and thus periodically inspect, the furnace to prevent a hazardous condition. We hold that he did and therefore reverse the Law Division's order and remand the matter for trial.

Ralph Ciccone died of smoke inhalation from a fire on December 10, 2006, at the house he was renting from defendant Pasquale D'Ambose. Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the evidence presented in defendant's summary judgment motion revealed the following facts.

Defendant was the owner of a single-family house in Neptune City, which he purchased in 1998 for investment purposes. At the time of the fire, the house had the same furnace that was in place when defendant purchased the property. During the intervening eight years, defendant never had the furnace inspected and only arranged for its repair on one occasion.

Two different tenants occupied the property before Ciccone. In December 2003, defendant and Ciccone executed a written lease for use and occupancy of the entire premises. At the time that Ciccone first began his tenancy, defendant had the property inspected by the municipality and received a certificate of occupancy.

The lease required Ciccone to "take good care of the House and all equipment and fixtures in it" and specifically, to "keep the furnace clean." The furnace was located in a crawl space under the floor in front of the bathroom entrance and could be seen through an open grate. Defendant testified at deposition that one could keep the furnace clean by "removing the grate and vacuuming, maybe"; there was no need to go down into the crawl space. A hatch cover in the kitchen and steps leading down provided access to the crawl space and the furnace. Defendant had only been in the crawl space one time.

The lease required defendant, as the landlord, to "make any necessary repairs and replacements to the vital facilities serving the House within a reasonable time after notice by the Tenant." Furthermore, the lease granted defendant "access to the House on reasonable notice to the Tenant" to "inspect the House" and to "make necessary repairs, alterations, or improvements." Defendant conceded at deposition that, under the terms of the lease, it was his responsibility rather than Ciccone's to repair the furnace.

On one occasion during the tenancy, approximately one year before the fire, Ciccone complained that the home did not have heat. In response, defendant hired a person by the name of Charlie to check the furnace. Defendant recalled Charlie coming to the house one time, and replacing a thermal coupling on the furnace, which was located "on the bottom of the furnace in the crawl space" and could not be accessed by taking off the grate cover. Defendant could not recall Charlie coming to the home on any other occasion to inspect or repair the furnace. In addition, he did not have a service contract with any company for routine maintenance or inspection of the furnace.

On the morning of December 10, 2006, a neighbor called 911 and emergency responders were dispatched to the house. Ciccone was removed from the house and transported to a hospital, where he was pronounced dead in the emergency room. Following an autopsy, the Monmouth County Medical Examiner listed the cause of death as "smoke inhalation due to a house fire."

The Monmouth County Fire Marshall's Office indicated in a written report that the fire was "considered accidental in nature." The report concluded that "the fire origin was located in the crawl space, center of the hallway" and that "[a] malfunction of the natural gas fired ...


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