On July 31, 2019, the Supreme Court of New Jersey, in granting defendant landlord's motion for summary judgment by a 5-2 vote (reversing a unanimous decision of the Appellate Division), held that, because a radiator is not within the control of the landlord, and is not part of an apartment's heating system, the landlord is not required to cover it. The case arose out of a March 30, 2010, accident in which a nine-month old infant fell out of a bed next to an uncovered radiator, was scalded and sustained permanent scars from third degree burns on his head, cheek, and arm. J.H.v. R & M Tagliareni,  ___ N.J.___ (2019); 2019 WL 3433062.

One of the issues forming the basis of the decision was who controlled the radiator's temperature. The boiler that supplied the heat to the steam-heated radiator was in a locked room in the basement that was in the exclusive control of the landlord. The apartment did not have a thermostat to allow a tenant to set a specific temperature; it only had an on-off valve.

The majority concluded that the landlord "did not maintain control over the heat emanating from the tenant's radiator; the tenant did, and therefore defendants owed (plaintiff) no duty to cover it with insulating material."

However, as Chief Justice Rabner's dissent properly pointed out, the landlord had control over the heating system because "the landlord controlled the temperature of the steam coursing through the radiators; the tenants did not. Tenants who can turn heat on or off are hardly in control. On cold days, the choice to heat an apartment or sit in the cold is hardly a choice at all because heat is a necessity, not an option."

Having such control, the Chief Justice concluded, requires the landlord to guard against foreseeable harm. Because "in the past decade, thousands of individuals, many of them children, were injured from contact with hot radiators," harm resulting from uncovered radiators was, according to the dissent, clearly foreseeable.

The other issue was whether the radiator was considered a part of the heating system.

The governing provision of the Hotel and Multiple Dwelling Law, N.J.A.C.5:10-14.3(d), requires a protective covering for "the heating system (which) includ(es) such parts as heating risers, ducts and hot water lines."

The majority opinion relied upon the absence of "radiator" from the aforesaid regulation, to conclude that a radiator is not a part of the heating system and therefore the landlord is not required to cover it. However, the majority conceded that "a regulation should be construed in accordance with the plain meaning of its language,"

To strictly construe this heating system so as not to include the radiator, in this author's opinion, is to ignore the plain meaning of the word. If the purpose of the heating system is to provide heat to an apartment, how can that be done without the radiator? Indeed, plaintiff's liability expert opined "without the radiator being part of the system the heat does not get to the habitable space …. Clearly, without question a radiator is part of the heating system."

Finally, the dissent noted that "a simple radiator cover, available at most home improvement stores for a modest cost, can prevent the foreseeable risk that countless apartment dwellers (especially children) face."

After all, as the dissent noted, New Jersey "has a strong interest in protecting children … (and) when the defendant's actions are relatively easily corrected and the harm sought to be prevented is serious, it is fair to impose a duty."

Having tried, both as a judge and as a trial lawyer, numerous child injury cases, I realize that courts are often asked to weigh the cost to be borne by a defendant, to prevent an injury, against the right of an injured child to recover damages for the injury. In this case, because the injury was foreseeable and could have been prevented by providing, at a modest cost, a radiator cover, in this author's opinion, the majority incorrectly denied this injured child his day in court.

After all, courts are in the business of doing what is right and fair to all parties. The majority missed this point; the dissent provides justice for all.

Indeed, plaintiff's counsel, John Molinari, commented that although, as it pertains to  his client, he is extremely disappointed with the majority decision, he is hopeful that the Legislature will rectify this erroneous decision and protect other children from being burned.

Fortunately, the Legislature has seemingly accepted Chief Justice Rabner's invitation to "require that protective covers be placed on hot radiators." See Senate bill No. 4098 (pending passage) which "requires residential landlords to equip steam radiators with protective covers."

Because the infant plaintiff (J.H.) in the case under discussion, must be considered the spearhead for this proposed bill, this author recommends that the bill be named the J.H. radiator bill.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.