Landlords don’t have to protect children from scorching radiators, N.J. court rules – NJ.com

A landlord cannot be held responsible for the third-degree burns an infant suffered rolling from a bed onto a scalding radiator, the New Jersey Supreme Court decided Wednesday, sparking an impassioned dissent from the Chief Justice who called for a change in the law.

The 5-2 ruling means a Jersey City landlord cannot be sued for not placing a protective cover over the steam-powered radiator in the apartment where a 9-month-old boy was burned in 2010.

State housing rules do not require radiators to be covered, so the landlords, Robert & Maria Tagliareni, did not owe a legal “duty of care to place a cover on the apartment’s radiator,” according to Justice Faustino J. Fernandez-Vina’s decision.

“To impose a duty on landlords to place covers on radiators — without prior notice and where the regulatory agency responsible for policy discussions on exactly this type of action and the consequences of such expansion has not imposed such a requirement — would be contrary to concepts of fairness,” Fernandez-Vina wrote.

Chief Justice Stuart Rabner in his dissent wrote that a jury should have been allowed to decide whether landlords are responsible for protecting tenants from “foreseeable dangers.”

He cited U.S. Consumer Product Safety Commission data showing hospital emergency rooms treated nearly 15,000 burns from radiators in the last decade.

”Landlords should have a duty to take reasonable steps to prevent the serious harm that scalding hot radiators can cause,” Rabner wrote in a dissent supported by Justice Barry Albin.

“A simple radiator cover, available at most home improvement stores for a modest cost, can prevent the foreseeable risk that countless apartment dwellers face. It can spare a child from being scalded and scarred.”

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The case involves a 9-month-old boy who suffered third-degree burns on his head, face and arm after rolling off a bed and into the uncovered steam radiator in March 2010. His step-sister, who was sharing the bed, found him the next morning “wedged between the radiator and the bed with his head pressed against the radiator,” according to the decision.

The boy’s father, who was not identified to protect the child’s identity, pleaded guilty to child abuse and neglect.

The child’s legal guardian sued the landlord but the trial court dismissed the case, finding that neither state regulations nor prior court decisions held landlords responsible for covering radiators. State regulations do not specifically name radiators as part of an apartment’s “heating system,” the trial court noted.

An appeals court overturned the ruling, saying the landlord controlled the heating system. “Nothing in the record…suggests it was unreasonably burdensome for defendants to cover the radiators,” which are widely recognized as a component of a heating system, the appeals court said.

The Supreme Court overturned the appeal, ruling that the tenants could have turned off the radiator.

But Rabner noted that because the apartments do not have thermostats, the tenants’ only option was to turn off the heat entirely.

“In the end, the Legislature has the final say in this case,” Rabner wrote.

“It is free to amend the Hotel and Multiple Dwelling Law and require that protective covers be placed on hot radiators — to protect tenants, their families, and guests from serious injuries they will undoubtedly continue to suffer year after year,” Rabner wrote.

Kevin M. Costello, president of the New Jersey Association for Justice, a trial lawyers’ organization which filed a “friend of the court” brief in support of the injured child’s lawsuit, said the decision was “disappointing.”

“We are disappointed in this decision, and agree with the reasoning outlined in Chief Justice Rabner’s dissent as it would hold landlords liable for failing to protect tenants from foreseeable risks,” Costello said. “The regrettable result of the majority’s holding will be to expose a great number of New Jerseyans to unnecessary risks of harm, and will reduce accountability for those responsible. It is our bedrock belief that if no one is responsible, no one is safe.”

Susan K. Livio may be reached at slivio@njadvancemedia.com. Follow her on Twitter @SusanKLivio. Find NJ.com Politics on Facebook.