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Rozeena Ashraf and Khemwatee Sandham By Their Subrogee, the Cumberland v. Frederick Haleluk

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 31, 2012

ROZEENA ASHRAF AND KHEMWATEE SANDHAM BY THEIR SUBROGEE, THE CUMBERLAND INSURANCE GROUP, PLAINTIFFS,
v.
FREDERICK HALELUK, INDIVIDUALLY, FREDERICK HALELUK, D/B/A MR. ICE BUCKET AND STEVEN GOMEZ, DEFENDANTS, AND FREDERICK HALELUK, INDIVIDUALLY, FREDERICK HALELUK, D/B/A MR. ICE BUCKET, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
STEVEN GOMEZ, THIRD-PARTY DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7065-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2011

Before Judges Grall and Alvarez.

The civil action that led to this appeal was commenced by plaintiffs who settled prior to trial. On a third-party complaint alleging negligence proximately causing a fire in a commercial building, the jury awarded $790,861 to the tenant, defendants/third-party plaintiffs, Frederick Haleluk and his business, Mr. Ice Bucket (collectively Haleluk). The landlord, third-party defendant Steven Gomez, appeals from that judgment and the denial of his motions for involuntary dismissal, judgment notwithstanding the verdict and a new trial on liability. We affirm.

Gomez purchased the property, 87-89 Jersey Avenue in New Brunswick, from Haleluk in 2005. After the sale, Haleluk continued to operate his business in a portion of the building leased from Gomez.

Gomez also operated his business in the premises, a bar and a billiards room. Although the rooms were separated by a wall, there was a three-to-four-foot-wide "pass-through" in that wall that allowed bartenders to serve patrons in both rooms. Four or five times prior to the fire, the television, jukebox and lights in the billiards room lost electrical power at the same time. According to Mrs. Gomez, this generally happened during the day; she acknowledged that patrons had complained about it.

The building caught fire between 3:00 and 4:00 a.m. on August 18, 2006, and the three-alarm fire was not brought under control until 8:00 a.m., after the roof had collapsed. The fire was sufficiently extensive to require demolition of the building, and it destroyed Haleluk's supplies and equipment, which had a value equivalent to the judgment.

William Petry, New Brunswick's fire official, concluded that the fire originated in the billiards room. First, the deepest char-patterns left by the fire were in the billiards room. Second, A DVD recording made by a surveillance camera located in the billiards room captured the eruption of the fire high on the wall of that room, and the slow progress it made as it spread into the ceiling and its "bow string truss."*fn1

The recording showed a flame jump out from the wall in the billiards room near the spot where Petry found a metal electrical panel box, or the breaker box, on the floor. The breaker box was warped and charred inside. From its condition and proximity to the spot where the fire started, Petry concluded the fire was caused by "an unspecified short circuit" or "electrical malfunction" inside it. Although he could not identify the malfunction, he noted that a "short" in an appliance powered from the panel should have tripped the breaker and that there was "something internal to that box." Moreover, there were no signs of any other cause for the fire, such as accelerants, which would have caused a fast fire, or a fire originating in furnishings, which would have left different charring patterns.

Haleluk's expert also viewed the DVD. He was unable to inspect the building because it had been demolished before he was retained. In his view, the DVD provided "good data" about the cause of the fire and helped him eliminate potential causes such as accelerants. He concluded that the "probable" cause of the fire was "some type of electrical malfunction," but he could not identify a particular component of the electrical system that malfunctioned.

There was conflicting testimony about the breaker box in the billiards room - when it was installed, whether it was on the bar or billiards room side of the same wall and whether that electrical panel or one in the portion of the building occupied by Haleluk controlled the wires powering the lights, television and jukebox. According to Haleluk, there was no electrical box on the wall where Petry said it was when Haleluk sold the building to Gomez, but according to Gomez, it was always there.

On this record, the significance of the discrepancy in the testimony about the location of the electrical panel and its proximity to the wall on which the fire erupted is difficult to discern. The witnesses marked locations of various features and furnishings on diagrams and photographs during their testimony but were not asked to describe their relative positions. Although plaintiffs have provided us with only two of the numerous photographs in evidence, they both depict the same area - the "pass-through."

Eight days before the fire, fire officials inspected the premises and identified several violations. The experts acknowledged that none of those violations caused the fire.

The same standard governs our review of the trial court's denial of Gomez's motion for a directed verdict, R. 4:37-2(b), and his motion for judgment notwithstanding the verdict, R. 4:40-2. Like the trial court, we must give Haleluk, the party opposing the motion, the benefit of all favorable inferences, and we must then consider "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 370 (2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Gomez argues that the evidence was inadequate to permit the jury to conclude that his negligence was the proximate cause of the fire that damaged Haleluk's property. Haleluk's position was that Gomez's failure to investigate the losses of power in the billiards room was a proximate cause of the electrical fire that moved along the wall and into the ceiling and roof. Giving Haleluk the benefit of all favorable inferences, the evidence was adequate to permit that determination.

"A landlord has a duty to exercise reasonable care to guard against foreseeable dangers arising from use of those portions of the rental property over which the landlord retains control. That duty requires the landlord to maintain that property in a reasonably safe condition." Scully v. Fitzgerald, 179 N.J. 114, 121-22 (2004) (citations omitted). "Generally, [the Supreme Court has] held that a landowner may be liable for a fire started . . . on his property if that property was kept in an unsafe and dangerous condition and the landowner did not take reasonable precautions to prevent the start or spread of the fire." Id. at 123.

In Scully, the Court considered the liability of a landlord who allegedly "maintained an open storage area with construction debris and refuse and . . . should have been aware that tenants discarded cigarette butts in direct proximity to those flammable materials, creating a substantial fire hazard." 179 N.J. at 118. Although the primary issue in Scully was whether the landlord had a duty to protect tenants from a fire ignited by a cigarette tossed on or near the landlord's flammable materials, the Court also addressed the adequacy of evidence establishing the cause of the fire. There, as here, the fire inspector and the experts were unable to pinpoint the cause of the fire. Id. at 120. Instead, like the witnesses in this case, they considered the evidence remaining after the fire, ruled out alternative causes, and identified a cause that was "probable." Ibid. Although the inspector indicated that "his best guess" as to the cause was that "a lit cigarette or match ignited loose debris in the storage area," ibid., the Court concluded that the concurring opinion of plaintiff's expert, who had identified the fire's point of origin and its "probable" cause was sufficient for the jury to make a causation determination, id. at 128-29.

We see no basis for reaching a different conclusion in this case. Accordingly, we reject Gomez's claim that the trial court erred in denying his motions for relief pursuant to Rules 4:37-2(b) and 4:40-2. For the sake of completeness, we add that the evidence of simultaneous loss of power to lights, jukebox and television, together with the absence of any evidence that Gomez took action to inspect the cause of this condition in the portion of the building adjacent to Haleluk's business, was sufficient to present a jury question as to whether Gomez exercised "reasonable care to guard against foreseeable dangers arising from" his operation of the bar and billiards room, or whether he breached his duty "to maintain that property in a reasonably safe condition." Id. at 121-22.

We turn to consider Gomez's claims of error in the denial of a motion for a new trial pursuant to Rule 4:49-1. This court applies the same standard as the trial court - "whether there was a miscarriage of justice under the law," Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011), except that we must give "'due deference' to the trial court's 'feel of the case,'" ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). That deference recognizes that some matters "are not transmitted by the written record." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Here, that deference is particularly appropriate because the trial court had the benefit of viewing the DVD that Gomez has not filed on appeal.

In denying this motion, the trial court relied on the evidence of the power failures and the absence of any evidence that Gomez took steps to address them. In addition, the court found:

There is absolutely clear evidence that the fire was an electrical fire. There is a movie of it that shows it clearly was a slow moving smoldering electrical fire that started. The expert is the fire inspector. Everybody testified to that and therefore the jury had more than sufficient evidence upon which to base their judgment in this matter and the motion is denied.

Having failed to provide the DVD, Gomez has not shown any error in the determination that would allow us to find a miscarriage of justice. See Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002).

Gomez also challenges two evidentiary rulings - the admission of the violations found by the fire inspector prior to the fire, and the exclusion of evidence that Haleluk did not secure insurance as required by his lease. These arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Any error in the admission of testimony about the violations was clearly incapable of producing an unjust result because the testimony made it clear that those violations were not related to and played no role in causing the fire. R. 2:10-2. The trial court did not err in excluding evidence that Haleluk failed to secure insurance because such evidence has no bearing on mitigation of damages. Fanfarillo v. E. End Motor Co., 172 N.J. Super. 309, 313 (App. Div. 1980).

Affirmed.

A-1664-10T4


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