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Francis Thorpe and Mary Ellen Thorpe v. General Electric Company D/B/A Ge Appliances

November 22, 2011

FRANCIS THORPE AND MARY ELLEN THORPE, PLAINTIFFS-APPELLANTS,
v.
GENERAL ELECTRIC COMPANY D/B/A GE APPLIANCES, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1674-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2011

Before Judges A. A. Rodriguez and Ashrafi.

Plaintiffs Francis and Mary Ellen Thorpe appeal from summary judgment dismissing their complaint for water damage caused to their vacation home by a ruptured waterline of their refrigerator. We affirm.

Viewed most favorably to plaintiffs, R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record established the following relevant facts and procedural history.

The Thorpes purchased a General Electric refrigerator in 2001 and, at some later time, installed it in their vacation home in Stone Harbor, New Jersey. The owner's manual warned that only copper tubing should be used to connect the ice-maker to house plumbing. The manual cautioned that plastic tubing posed a risk of water leakage over time. On the rear of the refrigerator near the waterline connection a label further warned in conspicuous language against using plastic tubing and disclaimed liability for improper installation. Despite these warnings, whoever installed the refrigerator used plastic tubing. Defendant General Electric Company (GE) did not install the refrigerator in the Stone Harbor home.

In August 2006, the Thorpes entered into a twelve-month service contract with GE. In the contract, GE disclaimed liability for damages arising out of installation of the refrigerator, for damages caused by plumbing, or for replacement of hoses. It also disclaimed liability for any consequential damages related to the performance of the service contract.

On May 15, 2007, a GE technician was granted access to the Thorpes' Stone Harbor home by their rental agent to repair the ice-maker. In his deposition, the technician did not remember the service call. He acknowledged that, to work on the ice-maker, he would have to move the refrigerator and the plastic tubing would be exposed. As a general practice, when the technician found a refrigerator had plastic tubing in "bad shape," he would recommend that the owner replace it with copper tubing or at least newer plastic tubing. Because he had no recollection of the service call, the technician could not say whether he saw that the tubing on the Thorpes' refrigerator was plastic or whether it was in bad condition.

About sixteen months after the service call, in September 2008, the plastic tubing ruptured and water leaked into the Thorpes' house, causing substantial damage. The homeowner's insurance carrier for the Thorpes paid them approximately $35,000 to repair the damages and then brought this action in subrogation of the Thorpes' claimed right to recover the money from defendant GE.

After discovery was conducted, the parties filed cross-motions for summary judgment on the alleged liability of GE for damage to the house. Judge Margaret Goodzeit granted summary judgment, concluding that GE did not have a duty under the service contract or under tort law for the service technician to warn the Thorpes again that copper tubing should have been used. On appeal, the Thorpes contend the court erred because, in the circumstances shown by these facts, the law imposes a duty upon a contract service provider to warn its customer of the unsafe condition of the product it is servicing.

"A duty is an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another." Acuna v. Turkish, 192 N.J. 399, 413 (2007) (internal quotation marks omitted), cert. denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008). Whether a duty exists is a matter of law decided by the court. Ibid. We give no "special deference" to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Our standard of review, therefore, is plenary.

The imposition of duty requires an analysis that is "both very fact-specific and principled; it must lead to . . . sensible rules to govern future conduct." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). The court weighs and balances several factors: "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Ibid. The court must ask whether imposing a duty satisfies "an abiding sense of basic fairness under all of the circumstances." Ibid.

As an initial matter in this case, the service contract did not impose a duty upon GE to inspect the refrigerator for defects in connection of the ice-maker or to warn about risks of damage as a result of faulty installation. In fact, the contract did just the opposite; it expressly notified the Thorpes that GE undertook no such duty.*fn1 Any duty imposed ...


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