J.H., an infant by his Guardian Ad Litem, A.R., and A.R., individually,  Plaintiffs-Appellants,
R&M TAGLIARENI, LLC, ROBERT and MARIA TAGLIARENI, II, LLC, Defendants-Respondents. R&M TAGLIARENI, LLC, ROBERT & MARIA TAGLIARENI, II, LLC, Defendants/Third-Party Plaintiffs,
J.H., SR., V.H. and L.C., Third-Party Defendants.
December 12, 2017
appeal from Superior Court of New Jersey, Law Division,
Hudson County, Docket No. L-4237-14.
E. Molinari argued the cause for appellants (Blume, Forte,
Fried, Zerres & Molinari, PC, attorneys; John E.
Molinari, on the brief).
Danielle M. Hughes argued the cause for respondents (Koster,
Brady & Nagler, LLP, attorneys; Danielle M. Hughes, on
Judges Fisher, Sumners and Moynihan.
trial court granted summary judgment to defendants R & M
Tagliareni, LLC and Robert & Maria Tagliareni, II, LLC,
landlord and property manager, respectively, of a
multi-family apartment building, determining that they did
not owe a duty of care to plaintiff J.H. (Jimmy), who at the
time was an infant staying in one of defendants'
apartments with the tenant's consent, to protect him from
the apartment's excessively-hot-uncovered radiator. We
conclude that, under the circumstances of this case, the
radiator was part of the building's heating system that
defendants have control of under common law and N.J.A.C.
5:10-14.3(d), and should have been covered. We therefore
an infant by his guardian ad litem, A.R., and A.R.,
individually, appeal the summary judgment dismissal of their
personal injury complaint. The action arose from the
permanent scarring Jimmy received as an infant when he was
tragically burned from an uncovered iron radiator in an
apartment of a multi-dwelling building owned and managed by
defendants. The motion judge determined defendants could not
be held liable because they did not control the radiator and
therefore owed no duty of care to Jimmy. Because we conclude
that, under common law and N.J.A.C. 5:10-14.3(d), the
radiator was part of the apartment's heating system
subject to defendants' control, we reverse to allow a
jury to determine whether defendants breached their duty owed
to Jimmy, and if so, whether plaintiffs are entitled to
reviewing a ruling on a summary judgment motion, we do so de
novo under the same Brill standard applied by the motion judge.
Townsend v. Pierre, 221 N.J. 36, 59 (2015). Thus, we
consider, "whether the competent evidential materials
presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of
the non-moving party." Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citation
omitted). "If there is no genuine issue of material
fact, we must then 'decide whether the trial court
correctly interpreted the law.'" DepoLink Court
Reporting & Litig. Servs. v. Rochman, 430 N.J.Super.
325, 333 (App. Div. 2013) (citation omitted). We review
issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster,
213 N.J. 463, 478 (2013) (citing Zabilowicz v.
Kelsey, 200 N.J. 507, 512-13 (2009)).
the accident occurred, Jimmy was about nine months old, under
the care of his father J.H., Sr. (James) and his step-mother
V.H. (Vera), staying in an apartment rented by L.C. (Linda),
Vera's sister. At some point in the early morning hours,
Jimmy had awakened while sleeping in a car seat, so his
father took him to the bedroom and placed him in a bed to
sleep with his ten-year-old step-sister, after swaddling him
in blankets to prevent him from falling off the bed. The bed
was adjacent to a steam-heated iron radiator. The next
morning, Jimmy's step-sister discovered Jimmy lying on
the floor with his head pressed against the hot radiator.
After being freed, Jimmy was rushed to the hospital where it
was determined he had third-degree burns over three percent
of his body surface - head, right cheek and left
At the time of the motion, over five years later, the burns
had resulted in permanent scarring.
the seriousness of Jimmy's injury, the Hudson County
Prosecutor's Office's (HCPO) investigated. Their
investigation revealed that the steam heat flowing into the
radiator was turned on and off from a shut-off valve at its
base, and that within approximately two minutes of opening
the valve, the cool radiator became so hot that it was
unbearable to touch. The heat flowing to the radiator could
only be manually turned on or off at the shut-off valve;
there was no thermostat control in the apartment or bedroom
to stop or regulate the heat into the radiator when the room
reached a set temperature.
mother, A.R., filed suit against defendants alleging their
negligence was responsible for his injuries. In turn, a
third-party complaint was filed against James, Vera and Linda
contending they were in control of the apartment's
heating system and failed to protect Jimmy. During the
ensuing discovery, the apartment building's
superintendent testified at deposition that the boiler, which
supplies heat to the apartments' radiators, was located
in a locked room in the building's basement under
defendants' exclusive control and was not accessible by
the tenants. He noted that some tenants had covers on their
radiators when he started working in the building fifteen
years ago. Robert Tagliareni, a stakeholder in both R & M
Tagliareni, LLC and Robert & Maria Tagliareni, II, LLC,
stated in his deposition that defendants did not provide
covers for the apartments' radiators nor were they ever
asked to do so. An inspector with the Department of Community
Affairs (DCA) testified the apartment building's
radiators were not in violation of any state law; he was
never trained that N.J.A.C. 5:10-14.3(d), which governs
heating systems in multi-family dwellings, required radiators
be protected with covers.
discovery, defendants were granted summary judgment
dismissing all claims against them based upon their argument
that they could not be held liable for Jimmy's injuries
because they owed him no duty under common law or state
regulation governing multi-family dwellings to cover the
apartment's radiator that caused his burns. The judge
denied plaintiffs' motion for reconsideration finding
there was no demonstration that the grant of summary judgment
was based upon a palpably incorrect or irrational ...