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Scully v. Fitzgerald

179 N.J. 114, 843 A.2d 1110 (2004)

LANDLORD- TENANT; LIABILITY—A landlord has a duty to exercise reasonable care to guard against the risks of fire caused by the negligent or intentional act of a third party, such as a tenant.

A commercial tenant brought suit against his landlord. A fire had started in an adjoining building and spread to the building where the tenant’s business was located, causing significant damage to the building and the business. In the storage area where the fire started, the landlord had a gas engine lawn mower, a gas engine snow blower, gasoline, mulch, old papers, construction debris, and garbage. The storage area was unenclosed and freely accessible to others. Furthermore, the tenants who resided on the floor above regularly smoked cigarettes and threw the butts in and near the storage area.

At trial, the local fire chief testified that the fire began in the storage area, most likely from a lit cigarette or match. The tenant’s fire expert opined that the storage of construction materials, equipment containing gasoline, and other flammable items in the storage area posed an avoidable, unreasonable fire risk. He also testified that the landlord’s failure to properly secure the storage area or to prohibit smoking was the proximate cause of the fire.

The landlord successfully convinced the lower court that the tenant had failed to offer any proof that the landlord had negligently maintained the storage area. The lower court concluded that the tenant had failed to produce evidence to show that the landlord violated a duty and that was the proximate cause of damages. It found that the tenant’s expert had not testified to a standard of care required by the building or fire code.

The Appellate Division reversed the lower court’s grant of summary judgment. It found that the tenant was entitled to show that the landlord had acted unreasonably in the way it maintained the storage area, especially because the landlord knew that some tenants discarded cigarettes in a way that could ignite flammable materials. It also rejected the lower court’s holding that an expert was needed to establish the landlord’s negligence, holding that the hazard fell within common knowledge. Therefore, the tenant did not have to show that its landlord violated a code or standard.

The Supreme Court affirmed, holding that the landlord owed a common law duty to his tenant to maintain the storage area in a reasonably safe condition. It also held that the landlord had a duty to exercise reasonable care to guard against the risks of a fire caused by the negligent or intentional act of a third party, such as a tenant. This is because a landlord has a duty to exercise reasonable care to guard against foreseeable dangers arising from use of those portions of rental property over which the landlord retains control.

A jury does not need a fire expert to explain the dangers that might follow when a lit cigarette is thrown into a pile of papers or other flammable material. On the other hand, the fire chief’s opinion in this case was held to be inadmissible because it was founded on a mere possibility that a discarded cigarette or match started the fire accidentally. A competent opinion addressing the cause of a fire must be framed in terms of probability or reasonable degree of certainty, not in terms of a probability.


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