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Nasheed Gifted v. Tahjai James and Faradrah*Fn1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 7, 2012

NASHEED GIFTED, PLAINTIFF,
v.
TAHJAI JAMES AND FARADRAH*FN1 A. SYKES-JAMES,*FN2 DEFENDANTS.*FN3
TAHJAI JAMES AND FARADRAH A. SYKES-JAMES, INDIVIDUALLY AND AS GUARDIANS AD LITEM FOR TAHJAI T. JAMES, AN INFANT, AND TAHJAMIR JAMES, A NEWBORN INFANT, THIRD-PARTY PLAINTIFFS/ APPELLANTS,
v.
CITY OF NEWARK, SHONDA BRYANT, INDIVIDUALLY AND AS EMPLOYEE OF THE CITY OF NEWARK, PETER DILLON, INDIVIDUALLY AND AS EMPLOYEE OF THE CITY OF NEWARK,
DENISE SCANTLING, INDIVIDUALLY AND AS EMPLOYEE OF THE CITY OF NEWARK, MARISOL HORTON, INDIVIDUALLY AND AS EMPLOYEE OF THE CITY OF NEWARK, LARRY HAZARD, JR., INDIVIDUALLY AND AS EMPLOYEE OF THE CITY OF NEWARK, BO KEMP, INDIVIDUALLY AND AS ACTING DIRECTOR OF THE NEWARK BUILDINGS DEPARTMENT, HENRY HAMILTON, AND JOYCE HAMILTON,*FN4 THIRD-PARTY DEFENDANTS, AND NASEED GIFTED AND JACQUELINE GIFTED, THIRD-PARTY DEFENDANTS/ RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5385-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 re[]painted 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, which "include[d] a couple of words at the very end[,] pending dust swipe results[,] which might create a fact question." The present appeal followed.

On appeal, the Jameses raise the following points for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN GRANTING RESPONDENT-DEFENDANTS['] MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF FACT WERE STILL IN DISPUTE AND NO FINDING OF LAW WAS MADE.

A. THERE WERE MATERIAL FACTS STILL IN DISPUTE INCLUDING THE RESPONDENT-DEFENDANT[S'] NON-DELEGABLE DUTY TO CONDUCT HIS OWN LEAD INSPECTION.

B. THERE WERE NO SPECIFIC FINDINGS OF LAW ON WHICH THE TRIAL JUDGE PROPERLY RULED . . . TO GRANT RESPONDENT-DEFENDANT[S'] SUMMARY JUDGMENT MOTION.

C. RESPONDENT-DEFENDANT[S] OWED A DUTY OF CARE TO THE APPELLANT-PLAINTIFF[S] AND KNEW OR SHOULD HAVE KNOWN ABOUT THE PRESENCE OF LEAD PAINT.

POINT II

THE COURT SHOULD HAVE DENIED THE MOTION FOR SUMMARY JUDGMENT BECAUSE DISCOVERY WAS INCOMPLETE.

We initially dispense with the Gifteds' contention the appeal should be dismissed as untimely, since the order granting summary judgment in favor of the Gifteds was a final order on the specific issue and party for a specific date and time. At the time summary judgment was entered, the claims against the remaining third-party defendants remained pending. The motion judge did not enter an order pursuant to Rule 4:42-2, "Judgment Upon Multiple Claims." Therefore, the order was interlocutory. However, the present appeal was filed after the court entered an order granting summary judgment dismissing the third-party complaint against the remaining defendants. The Gifteds do not contend that the filing of the appeal after the claims against all remaining third-party defendants were dismissed was otherwise untimely.

When reviewing a grant of summary judgment, we employ the same standards used by the trial court, which grants summary judgment if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. We review issues of law, however, de novo and accord no deference to the motion judge's conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

The Jameses' counsel represented to the motion judge during oral argument that "[a]t some point [the Gifteds] knew. At the time that my clients moved in[,] they [the Gifteds] did not know" of the existence of lead paint in the premises. Counsel qualified that representation by noting that the Gifteds were unable to produce the real estate closing file, and counsel had not yet received the closing documents from their real estate attorney. Nonetheless, for purposes of the motion, counsel accepted that the Gifteds had no knowledge of the condition of the premises. Thus, the sole inquiry was whether they should have known of the existence of the lead paint. The Jameses maintained that if the Gifteds had undertaken their non-delegable duty to have the apartment tested, they would have learned of the presence of lead paint in the apartment.

To support this contention, the Jameses argued that the Gifteds failed to comply with the following municipal ordinance:

It shall be the responsibility of the owner of any rental dwelling unit(s) within the City to cause an inspection of said unit(s) by a State certified lead inspector declaring said rental unit to be lead safe prior to being rented to the general public. Upon each occasion that the dwelling unit becomes vacant, the owner shall be required to recertify said unit as being lead safe prior to it being re-occupied. For each succeeding tenant who leases the dwelling unit, the owner must disclose the lead inspection report and provide the tenant with a copy of a Lead Safe Certificate. [Newark Ordinance, Article 7.16:3-20.]

We first note that we agree, as the Gifteds urge, "'municipal ordinances do not create a tort duty, as a matter of law.'" Smith v. Young, 300 N.J. Super. 82, 95 (App. Div. 1997) (quoting Brown v. St. Venantius Sch., 111 N.J. 325, 335 (1988)). An ordinance may, however, establish a standard of conduct if the person attempting to bring a claim is "'of the class for whose benefit it was enacted' and if the breach of the ordinance 'was the efficient cause of the injury of which [the person] complains.'" Luchejko v. City of Hoboken, 414 N.J. Super. 302, 319-20 (App. Div. 2010) (quoting Carrino v. Novotny, 78 N.J. 355, 359, (1979)), aff'd, 207 N.J. 191 (2011). Moreover, "[t]he ordinance must further be germane to the type of hazard involved." Ibid.

Here, the objective of the ordinance is to ensure that a lead inspection is conducted by the appropriate individual prior to the landlord renting the property and that the apartment will not be rented if the presence of lead paint exceeds acceptable levels. The issuance of the Certificate memorializes an inspection that finds no presence of lead or levels that do not exceed tolerable levels. There is no dispute the inspection took place and that it was performed by a licensed inspector; and, irrespective of which inspection report is considered, there was either no lead paint present or its presence was within acceptable levels.

What the Gifteds failed to do was disclose the inspection report and to provide the Jameses with a Lead Safe Certificate.

This failure, however, was not the "efficient cause" of the injury to their minor son. The Gifteds made no representations that caused the Jameses to move into the apartment before the results of the inspection report were received. Rather, the Jameses moved into the apartment based upon their reliance on representations made to them by a City employee that it was safe for them to do so. Consequently, the Gifteds' failure to disclose the results of the lead inspection and to provide them with a Lead Safe Certificate was not the efficient cause of their son's injury.

Our analysis does not end here. The court stated that if the Jameses can prove that somehow this other document got to [the Gifteds,] I would certainly hear a [m]otion for [r]econsideration. I want to have an open mind because I think the other document does at least include a couple of words at the very end[,] pending dust swipe results[,] . . . which might create a fact question.

Based upon this statement from the court, it is apparent the court believed the Gifteds received the inspection report on which the following language appeared: "Took dust wipes. Apartment is suitable for relocation of EBL child as no lead violations were present at time of inspection." Gifted, however, when deposed, was presented with an exhibit marked P-1, the November 14, 2006 "Environmental Inspection Report," which contains the following language in the Comment Section: "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." Nasheed testified that he saw the report marked P-1 "[a]fter the inspector inspected my property." The court, therefore, apparently granted summary judgment in part based upon its mistaken belief that the Gifteds had been presented with the inspection report on which there were no pending result entries.

Notwithstanding this error, we conclude the grant of summary judgment does not warrant reversal because the Jameses moved into the apartment based solely upon the information they obtained from the City, namely, that it was safe to move into the apartment. Once the Jameses received this information from the City, they notified the Gifteds that it was safe to move into the apartment. The report the Gifteds received that the lead detected was below threshold levels was therefore consistent with the representations they received from the Jameses that the City had approved the move.

In Ruiz v. Kaprilian, 322 N.J. Super. 460, 463-64 (App. Div. 1999), the plaintiff, a minor exposed to unacceptable levels of lead paint in his parents' home, argued that the landlord was strictly liable under breach of warranty. The trial court disagreed, and on appeal, we affirmed. Id. at 464-65. We reasoned liability, for breach of the warranty of habitability, is "governed by negligence principles, and to be found negligent, the landlord must be shown to have actual or constructive knowledge of the dangerous condition." Id. at 468. Likewise, we rejected the imposition of liability based upon a nuisance theory. Id. at 473. We concluded, in the absence of "intentional or hazardous activity requiring a higher standard of care," no liability could be imposed, notwithstanding that the removal of hazardous lead paint is a "compelling policy" consideration. Ibid.

Here, both inspection reports indicate there were no lead paint violations. It is true the report that Nasheed testified he received is the report that notes the presence of lead paint was "below threshold for lead in paint" and that the "[c]ase will be closed as intact pending dust wipe results." It was not, however, the Gifteds' representation that it was safe to move into the apartment upon which plaintiffs relied. Rather, approximately two weeks after the inspection, Faradrah contacted City officials and, based upon their representations, it was she who contacted the Gifteds to advise that she and her family could move into the apartment. Consequently, it remains undisputed the Jameses failed to present any evidence the Gifteds knew or should have known of the presence of lead paint in the premises.

Nor are we persuaded that the existence of numerous violations at the time the Gifteds purchased the property creates a genuinely disputed issue of fact sufficient to warrant denial of their summary judgment motion. The record reveals that those violations were abated, and there is no reference to lead paint violations at the time of purchase. Moreover, assuming there were lead paint violations, the subsequent inspection performed by the City in November 2006 reported no lead paint violations.

Affirmed.


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