SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4283-95T3
JOSEPH RANALLI and
JEANETTE RANALLI,
Plaintiffs-Appellants,
v.
EDRO MOTEL CORPORATION
t/a LOLLIPOP MOTEL,
Defendant-Respondent.
__________________________________
Argued February 20, 1997 - Decided March 18, 1997
Before Judges Baime and P.G. Levy.
On appeal from Superior Court of New
Jersey, Law Division, Cumberland County.
Gerard J. Jackson argued the cause for
appellants.
Kimberly A. Jubanyik argued the cause for
respondent (Edelstein, Mintzer & Sarowitz,
attorneys; Lawrence S. Sarowitz, on the brief).
The opinion of the court was delivered by
BAIME, J.A.D.
The novel question presented in this appeal is whether a
motel owner is strictly liable in tort for injuries caused by a
defective cooking utensil supplied to a guest. We hold that
product liability principles are not applicable.
In June 1991, plaintiff and his wife were weekend guests at defendant's motel. The motel room was furnished with a
kitchenette and an electric range. Defendant also supplied
cooking utensils. While cooking dinner, plaintiff took a teflon
frying pan from under the sink. After washing the pan, plaintiff
poured cooking oil into the pan and activated one of the burners.
When the oil began to boil, plaintiff noticed that the bottom of
the pan had caught on fire. Plaintiff grabbed the pan, opened
the front door, and dropped the utensil on the concrete stoop.
While engaged in this process, some of the cooking oil splashed
onto plaintiff's hand causing severe burns.
Plaintiff and his wife sued defendant, the owner of the
motel, contending that defendant was strictly liable for the
defective frying pan.See footnote 1 They also asserted that defendant was
negligent in its maintenance and inspection of the cooking
utensils supplied and in failing to provide a fire extinguisher
for each room. At the commencement of the trial, the Law
Division dismissed plaintiff's strict liability claim on the
ground that defendant was neither a manufacturer nor a seller of
a defective product.
The trial proceeded on plaintiff's contention that defendant
was negligent. Plaintiff testified that he inspected the teflon
pan prior to its use and found nothing amiss. After the
accident, Mrs. Ranalli retrieved the pan and noticed a small
crack in its bottom. She subsequently discarded the pan.
The owners of the motel, Edward and Judy Roth, testified
that their practice is to inspect all cooking equipment when the
motel is opened in the spring. They again inspect each unit,
including cooking utensils, shortly after Labor Day when they
close the motel. The Roths testified that they engage in "random
checks" throughout the summer and replace items as needed. In
addition, housekeepers employed by the motel are instructed to
inspect all inventory after each "checkout" to insure that
nothing is taken and that items remain in good condition. Fire
extinguishers are located on each floor of the motel as required
by code.
Mr. Roth testified that on the day of the incident he heard
a smoke detector sound and observed plaintiff standing outside
his room with a smoldering pan resting on the concrete stoop.
Plaintiff allegedly told Roth that cooking oil had "splattered"
when he placed a meatball in the pan.
At the close of the case, the trial court dismissed
plaintiff's claim for negligent maintenance and inspection of the
pan. The sole question presented to the jury was whether
defendant acted unreasonably in failing to furnish each room with
a fire extinguisher. The jury returned a verdict of no cause.
We decline plaintiff's invitation to extend product liability principles to motel owners who supply their guests with
cooking utensils as incident to the primary use of the rented premises.See footnote 2 In reaching this conclusion, we recognize that our Supreme Court has imposed strict liability on persons and entities other than manufacturers and sellers of goods. In a lengthening line of decisions, our courts have extended liability to distributors and retailers, Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 510 (1989); Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 64 (1965); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 379 (1960), reconditioners and rebuilders, Michalko v. Cooke Color & Chemical Corp., 91 N.J. 386, 395 (1982); Gentile v. MacGregor Manufacturing Co., 201 N.J. Super. 612, 622 (Law Div. 1985), dealers in used items, Realmuto v. Straub Motors, Inc., 65 N.J. 336, 344 (1974); Turner v. International Harvester Co., 133 N.J. Super. 277, 289 (Law Div. 1975); but see Santiago v. E.W. Bliss Division, 201 N.J. Super. 205, 226 (App. Div. 1985), providers of services necessarily involving use or sale of a product, Newmark v. Gimbel's Inc., 54 N.J. 585, 595 (1969); Ramos v. Silent Hoist & Crane Co., 256 N.J. Super. 467, 478 (App. Div. 1992), successor corporations, Nieves v. Bruno Sherman Corp., 86 N.J. 361, 373 (1981); Ramirez v.
Amsted Industries, Inc.,
86 N.J. 332, 358 (1981), and lessors of
certain consumer goods, Cintrone v. Hertz Truck Leasing & Rental
Service,
45 N.J. 434, 452 (1965). See generally, William A.
Dreier, et al., New Jersey Products Liability & Toxic Torts Law §
12.1 to .5 (1996).
We take particular note of the reported decisions imposing
strict liability on lessors. In Cintrone v. Hertz Truck Leasing
& Rental Service,
45 N.J. 434, the Court applied the doctrine of
strict liability in tort to a non-sales situation, i.e., the
lease of a truck whose defect caused personal injury to an
employee of the lessee. Noting the "growth of the business of
renting motor vehicles, trucks and pleasure cars," id. at 448,
the Court found "no good reason for restricting . . . warranties
[of fitness] to sales." Id. at 446. The Court observed that
while "[a] sale transfers ownership and possession of the article
in exchange for the price[,] a bailment for hire transfers
possession in exchange for the rental and contemplates eventual
return of the article to the owner." Id. at 447. The Court
reasoned that "[b]y means of a bailment parties can often reach
the same business ends that can be achieved by selling and
buying." Ibid. Where a sale or rental is essentially an
equivalent transaction, the buyer or lessee was said to "rel[y]
on the express or implied representation of the person in the
business of supplying vehicles . . . that they are fit for . . .
use." Id. at 450. The Court thus held that "[a] bailer for hire
. . . [who] puts motor vehicles in the stream of commerce in a
fashion not unlike a manufacturer or retailer" should be subject
to strict liability. Ibid.
The principles cited in Cintrone have not been applied to
impose strict liability to providers of premises on which
products are used. In Dixon v. Four Seasons Bowling Alley, Inc.,
176 N.J. Super. 540 (App. Div. 1980), we declined to extend
strict liability to the owner of a bowling alley which supplied a
defective bowling ball to a patron. Id. at 546. We said that
not "every use of personal property by an invitee on business
premises will render the owner of the defective property strictly
liable for injuries caused by the defect." Ibid. Among the
critical factors weighing against strict liability, we pointed to
the fact that furnishing the ball was a part of a larger service
supplied by the owner, that there was no separate fee charged for
use of the ball, and that the patron's possession of the ball was
intended to be short term. Ibid. We concluded that "use of the
ball was incidental to the use of [the] defendant's premises and
the supplying of such equipment should not result in imposition"
of strict liability. Id. at 547.
We reached a similar conclusion in Dwyer v. Skyline
Apartments, Inc.,
123 N.J. Super. 48 (App. Div.), aff'd,
63 N.J. 577 (1973). There, plaintiff, a tenant in a multiple-family
garden apartment owned by the defendant, was injured when a hot
water faucet fixture separated from the tile surface, causing
scalding water to gush from the pipe. Id. at 51. The trial
court found the defendant strictly liable in tort. Ibid. We
reversed, holding that "the nexus between [a landlord's] duty and
liability [was] proof of negligence," which required a showing of
actual or constructive knowledge of the defective condition
causing injury. Id. at 52. In reaching this conclusion, we
noted that a landlord is not engaged in mass production by
placing a product in the stream of commerce exposing it to a
large number of consumers. Id. at 55. Nor does a landlord
generally "create[] [a] product with a defect which is
preventable by greater care at the time of manufacture or
assembly." Ibid. We concluded that an apartment was "a
commodity wholly unlike a product which is expected to leave the
manufacturer's hands in a safe condition with an implied
representation upon which the consumer justifiably relies." Id.
at 56.
The principles and policy concerns noted in Dixon and Dwyer
apply with equal force here. We are of the view that to apply
the broad brush of strict liability to motel owners would impose
an unusual and unjust burden. A motel owner would be faced with
absolute liability for every injury claim resulting from an
untoward condition in every cranny of the building, whether it is
reasonably foreseeable or not. Traditionally, the duty of a
motel owner is not to insure the safety of guests but only to
exercise reasonable care to discover and correct dangerous
conditions. Cf. Dwyer v. Skyline Apts., Inc., 123 N.J. Super. at
53. A motel guest reasonably can expect that the owner
diligently will inspect the premises for defects and cure any
deficiency discovered. But the guest cannot reasonably expect
that the owner will correct defects of which he is unaware and
that cannot be discerned by a reasonable inspection. This basic
element of actual or constructive notice in the area of motel
owner liability "arising out of the duty to maintain and repair
[the] rented premises is ingrained in our law as a necessary
prerequisite to a finding of negligence - the failure to exercise
reasonable care." Ibid. We see no compelling need to abrogate
these well-settled principles and, as urged by plaintiff, make
the owner an insurer for defects in any wire, screw, latch,
cabinet door, pipe or other article on and in the premises at the
time it is let, despite the fact that the owner neither installed
the item nor had any knowledge or reason to know of the defect.
Most of the underpinnings of product liability law do not
apply in this situation. Strict liability in other contexts
affords maximum protection to the injured plaintiff and works no
injustice to the defendants because the manufacturers and
retailers can adjust the cost of such protection between them in
the course of their continuing business relationship. See
Henningsen v. Bloomfield Motors, Inc., 32 N.J. at 384.
Ordinarily, a motel owner has no continuing business relationship
with the manufacturer or retailer of the defective product and
cannot exert pressure to make the product safe. The cost of
insuring risk will not be distributed along the chain of commerce
but will probably be absorbed by the motel owner or perhaps his
guests. Because the motel owner will generally not be able to
receive indemnity or contribution from others, imposing strict
liability makes him the last outpost of liability, even though he
may be innocent of any wrongdoing. We reject this approach.
The result we reach is in accord with that recently adopted
by the California Supreme Court in Peterson v. Superior Court,
899 P.2d 905 (Cal. 1995). There, the Court overruled its prior
decision in Becker v. IRM Corp.,
698 P.2d 116 (Cal. 1985) in
which it had held that a residential landlord was strictly liable
in tort for an injury to its tenant caused by a defect in a
leased dwelling. Noting that its decision in Becker had received
a "chilly reception," see Jeanne L. Early, Note, Let the Landlord
Beware: California Imposes Strict Liability on Lessors of Rental
Housing,
51 Mo. L. Rev. 899 (1986); Emily M. Haliday, Comment,
California's Approach to Landlord Liability for Tenant Injuries:
Strict Liability Reexamined,
26 U.C. Davis L. Rev. 367 (1993);
Matthew E. Karanian, Note, Becker v. IRM Corporation: The Final
Chapter in the Destruction of Landlord Tort Immunity,
17 Pac.
L.J. 995 (1986), the Court abrogated its prior holding and
concluded that strict liability principles should not be applied
to hotel owners for injuries caused by a defect in the premises.
Id. at 909. Other jurisdictions have similarly refused to extend
product liability principles in this and analogous settings.
See, e.g., Wagner v. Coronet Hotel,
458 P.2d 390 (Ariz. Ct. App.
1969); Singleton v. Collins,
574 P.2d 882 (Colo. Ct. App. 1978);
Meyer v. Parkin,
350 N.W.2d 435 (Minn. Ct. App. 1984); Alharb v.
Sayegh,
604 N.Y.S.2d 243 (App. Div. 1993); Winston Properties v.
Sanders,
565 N.E.2d 1280 (Ohio Ct. App. 1989); Young v. Morrisey,
329 S.E.2d 426 (S.C. 1985); Bolin Dev. Corp. v. Indant,
803 S.W.2d 817 (Tex. Ct. App. 1991); Williams v. Melby,
699 P.2d 723
(Utah 1985); Lincoln v. Farnkoff,
613 P.2d 1212 (Wash. Ct. App.
1980).
We thus conclude that the trial court did not commit error
by dismissing plaintiff's claim based upon strict liability in
tort.
Plaintiff also argues that the trial court erred by refusing to submit to the jury the question of whether defendant was negligent in its inspection of the cooking utensils. This point does not require extended discussion. R. 2:11-3(e)(1)(E). Plaintiff presented no evidence that the alleged defect in the pan could have been discovered by the exercise of reasonable care. Plaintiff testified that he carefully inspected the pan prior to the accident and found no defect. The trial court correctly dismissed plaintiff's claim under R. 4:40-1.
Affirmed.
Footnote: 1The trial court determined that an expert was not necessary to establish a defect under strict liability principles. In light of our decision, we need not address this issue. See generally Crawn v. Campo, 136 N.J. 494, 508-09 (1994) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982)); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993); Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996); Kajetzke v. New Jersey Bell, 241 N.J. Super. 193, 195-97 (App. Div. 1990). Footnote: 2Prior to trial, defendant moved for partial summary judgment to dismiss plaintiff's strict liability claim. The Law Division denied defendant's motion. Plaintiff contends that the trial court should have followed that decision under the law of the case doctrine. We reject this argument. See Daniel v. Department of Transp., 239 N.J. Super. 563, 581 (App. Div.), certif. denied, 122 N.J. 325 (1990). The law of the case doctrine is "a non-binding discretionary rule." Pressler, Current N.J. Court Rules, comment on R. 1:36 (1997). See also Lanzet v. Greenberg, 126 N.J. 168, 192 (1991); State v. Reldan, 100 N.J. 187, 205 (1985).