On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5385-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011 -
Before Judges Sapp-Peterson and Ostrer.
Third-party plaintiffs, Tahjai and Faradrah A. Sykes-James (the Jameses),*fn5 former tenants of third-party defendants, Nasheed and Jacqueline Gifted (the Gifteds), appeal from the trial court order granting summary judgment to the Gifteds, dismissing the Jameses' complaint. We affirm.
The facts, when viewed in a light most favorable to the Jameses, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), reveal that the Jameses are the parents of a child who contracted lead paint poisoning while living at a former residence. In November 2006, they had to relocate and saw a rental sign displayed at property owned by the Gifteds in the City of Newark (the City). They expressed an interest in renting after the Gifteds showed them the apartment. They told the Gifteds their son "has lead poisoning" and inquired whether the apartment had ever been "tested for lead." The Gifteds told them the apartment had been tested, but Faradrah advised that "in order for us to move in, they [the City] still have to come and do their own test before I move in. . . . [I]f I move, any house has to be tested."
Charles Alsbrook, a lead inspector for the City, conducted the inspection, at which Nasheed was present. On November 28, 2006, Faradrah telephoned Shonda Bryant, the program coordinator for the Lead Poison Prevention Program within the City, in an effort "to see what was going on." Bryant checked the documents and then told Faradrah that "[she] can go ahead and move in." Based upon that representation, the Jameses "gave the Gifteds a call and told them that [Bryant] said we could move in[.]" Neither she nor her husband received any paperwork regarding the results of the inspection at that time or at any time before they moved into the apartment.
In March 2007, following the hospitalization of their son, the Jameses learned he was suffering from increased lead poisoning as a result of paint contamination in their apartment. Faradrah testified she obtained a copy of an inspection report from Bryant, who apologized and told her that she relied upon "[Alsbrook's] word that everything was clear." In her deposition testimony, Bryant denied having any conversation with Faradrah during which she said it was safe for the Jameses to move into the apartment. Rather, she believed that Faradrah communicated directly with Alsbrook regarding the results of the test. Bryant explained that she did not know "how and when and if the results of that inspection were communicated to Faradah James" because she was "not that intimately involved with the inspection[,]" and that Alsbrook "would have had that information[.]" At the time Bryant was deposed, Alsbrook was no longer employed by the City. Bryant believed that Alsbrook took advantage of a buyout offered by the City.
As part of discovery, the City turned over two inspection reports titled "Environmental Inspection Report," both dated November 14, 2006, but one report appears to have been altered. Both reports were signed by Alsbrook. In the "Result of Visit" section of the apparently altered report, there are four sections checked: (1) "No. of Lead Violations"; (2) "Dust wipes taken"; (3) "Investigation Pending"; and (4) "Condition of paint." Next to "No. of Lead Violations" is the number zero, and next to "Condition of paint" is the entry "Intact." In the "Comments" section of that report, Alsbrook wrote:
Initial inspection of possible relocation address for EBL child from 39-41 Stengel Ave. Property is newly renovated [and] repainted throughout. All surfaces intact. XRF testing on windows [and] doorframes, all of which test below threshold for lead in paint. Case will be closed as intact pending dust wipe results.
In the unaltered report on which there is no editing of the day, there are two entries checked in the "Result of Visit" section: (1) "No. of Lead Violations" and (2) "Dust wipes taken." Again, next to "No. of Lead Violations" is the number zero. The "Comments" section states: "Complete inspection of apartment which has been presently renovated. All surfaces found to be intact as entire apartment has obviously been repainted prior to my inspection. Took dust wipes. Apartment is suitable for relocation of EBL child as no lead violations were present at the time of inspection." Beyond these two inspection reports, there was no other evidence in the record regarding the property's history with respect to the presence of lead.
Nasheed, in his deposition, testified that he purchased the property in 2006 and that prior to the purchase, he had the property inspected. He could not recall whether a lead paint inspection had been conducted prior to the purchase but believed "something with lead was in [the report.]" He was, however, present when the lead inspection was conducted in November 2006.
The Gifteds commenced a tenancy action against the Jameses, who, in turn, filed a counterclaim alleging the Gifteds rented the apartment to them knowing it was contaminated with lead. As a result, they claimed their infant son became "severely ill with lead poisoning[,] thereby further aggravating and significantly contributing to a debilitating condition of lead poisoning." They sought double the amount of their "wrongfully withheld" security deposit, and compensation for pain and suffering, damages, attorney's fees, costs of suit, and punitive damages. The Jameses also named the City and various City employees in the complaint.
On September 28, 2010, the Gifteds moved for summary judgment, arguing they were entitled to summary judgment as a matter of law because there was no evidence they knew or should have known of the presence of lead paint in the apartment they rented to the Jameses. The motion judge agreed, specifically referencing "the document from the City saying that the inspection was completed, there are no lead violations, and dust [s]wipes taken." The judge added that he would be open to reconsideration if the Jameses could somehow prove the Gifteds received the other inspection report, ...