FRANK and TERRY COYNE v. JOSEPH AND CISSIE PRICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3291-05T53291-05T5

FRANK and TERRY COYNE,

Plaintiffs-Respondents,

v.

JOSEPH AND CISSIE PRICE,

Defendants-Appellants.

___________________________________

 

Submitted September 5, 2006 - Decided September 14, 2006

Before Judges Payne and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Cape May County, Docket No. SC-779-05.

Sander & Carson, attorneys for appellants (Michael E. Carson, on the brief).

Frank and Terry Coyne, respondents pro se.

PER CURIAM

Plaintiffs, Frank and Terry Coyne, instituted a property damage negligence action in the Small Claims section of the Special Civil Part seeking to recover the $1,000 deductible under their homeowners insurance policy after their condominium unit suffered water damage due to an overflow of a toilet located in the condominium unit of defendants, Joseph and Cissie Price. Defendants appeal the trial court's determination, finding them liable by failing to turn off the water supply to the toilet knowing the unit would be unoccupied for a period of time. We reverse.

These are the facts. Plaintiffs are the owners of a residential condominium unit in the Avalon Condominium, 700 First Avenue, Avalon. Plaintiffs' unit is located directly below a residential condominium unit owned by defendants. Plaintiffs occupy their unit year round. Defendants occupy their unit primarily during the summer months, May through September, but also occupy it periodically during the balance of the year. During the summer months, they occupy it sixty to ninety days with defendant wife occupying the unit one or two weeks at a time, and defendant husband staying at the unit with his wife on long weekends or occasionally for a week period.

Prior to commencement of trial, the parties stipulated the amount of plaintiffs' damages as the $1,000 deductible under plaintiffs' insurance policy. The only witnesses who testified at trial were Terry Coyne and Joseph Price. Mrs. Coyne testified that on July 19, 2004, after returning home from work at approximately 2:30 p.m., she observed water "gushing (sic) through [her] home." The ceiling tiles were collapsing, water coming out of the light fixtures, my electrical panel." After the property manager arrived, Mrs. Coyne was informed that the toilet in the unit above had overflowed and that the property manager had shut the water off in that unit. When asked by the court why she believed that the defendants "should be responsible for this damage of $1,000?," Mrs. Coyne responded, "I just don't feel that I should be accountable for somebody else's water that came into my unit, my home. It's just not - - we just don't feel that. It's their water. It was not my water."

Joseph Price testified that the problem with the toilet was "the stem holding the ball [float] in the tank -- not in the toilet -- in the tank snapped off, apparently corroded from water over a period of time and snapped off. There's no way I would have known, or I could have known or anybody could." He further stated: "According to the plumber, there's no way we could have known it beforehand that it was going to . . . ."

Defendants last occupied the unit on July 17, 2005. Before leaving the unit on that day, they checked everything and did not notice any sound or anything wrong, e.g., "nothing gurgling or no water at all." Although there is a main water shutoff valve located in the ceiling of the unit, defendants did not turn the water off to the unit or to the toilet, not having heard of a similar problem in any of the condominium units or in any other homes which the defendants had owned. However, because defendant wife had heard that water hoses to clothes washing machines occasionally leak, defendants turned off the water to their washing machine before they left the premises on July 17, 2005. Determining that defendants owed a duty to plaintiffs to shut off the water to the toilet before leaving the unit unoccupied, the trial judge stated:

I think I [am] going to disagree with you. Considering the circumstances, the fact of the number of units there, I think the foresight should be utilized that there would be a duty in light of the circumstances, that there are people below you that might suffer damage. It [is] a little bit of a stretch because it [is] summertime and who would think, as you [are] saying, that water is going to leak without a freezing element or a freezing component. Here [is] a defective or a defect that maybe could have been seen, had it been checked. Does everyone go around and check their tanks? I do [not] know. I [have] never taken a survey.

So I [am] finding that there was a duty[,] and I think that duty was breached by the failure to turn off the water. If you turn off the washing machine because of potential leaking with rubber hoses and what have you, then you should turn off the water to the toilet, as well. That [is] a mechanism where water will automatically flow if there [is] a defect in the toilet tank. So maybe you do [not] have to turn off the whole thing, but maybe where there [is] any water that could possibly automatically flow because of a defect, maybe the toilet itself should be turned off or the number of toilets. That [is] it.

I [am] finding liability. Damages, $1,000 plus costs. Judgment accordingly. Thank you.

On appeal, defendants argue: "The trial court erred in holding that [they] owed plaintiffs the duty to turn off the water supply to their toilet, or to their entire condominium unit, before leaving until the following weekend of the summer." Plaintiffs counter that: 1) under the condominium association by-laws, defendants were responsible to manage and maintain the interior of their unit, not the Association; 2) the reseating of a second toilet in defendants' unit eight years prior was because the "gasket . . . was shot, and the flange was corroded completely through" and the deteriorated condition of that toilet should have placed defendants on notice that all bathroom fixtures were aging, requiring defendants to inspect the toilet involved in this matter; and 3) had defendants inspected the toilet on a regular basis they would have observed that the stem that held the float was corroded prior to the accident; and 4) that various manufacturers of toilet replacement parts suggest periodic inspections and replacement of the toilet parts involved in this matter on a five-year basis. Because plaintiffs' arguments were not raised below, we decline to consider them on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973); Monek v. Borough of South River, 354 N.J. Super. 442, 456 (App. Div. 2002). Nor do we consider the exhibit submitted by plaintiffs, [P]a1, and by defendants, Da2, because they were not part of the record below, and the parties never sought leave to expand the record on appeal pursuant to Rules 2:5-4 and 2:5-5.

"Negligence as it is commonly understood is conduct that creates an undue risk of harm to others." Erny v. Est. of Merola, l 71 N.J. 86, 97 (2002). To prove a cause of action sounding in negligence, a plaintiff must establish: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div. 1997).

The issue in this matter is whether defendants owed plaintiffs a duty to shut off the source of water to the toilet when defendants left the premises on July 17, 2005. The existence of a duty of care is a legal issue to be determined by the court, not by the fact finder. Carvahlo v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). Also, the scope of any such duty is to be determined by the court as a matter of law. Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). Whether a duty exists is fact sensitive, and depends on an evaluation of various factors including:

[T]he nature of the underlying risk of harm, that is, the foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interest of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.

[Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439 (1993)].

"An important factor in applying an objective analysis is the foreseeability of the risk of harm based on a defendant's knowledge of the risk." Sacci v. Metaxas, 355 N.J. Super. 499, 508 (App. Div. 2002). However, "[e]ven if the risk is foreseeable, a legal duty does not necessarily arise." Ibid. "Reasonableness, public policy, fairness and common sense . . . must be taken into account when imposing new legal duties." Sanchez v. Independent Bus Co., Inc., 358 N.J. Super. 74, 81 (App. Div. 2003).

We are satisfied the circumstances presented in this matter, when applied against the aforementioned principles, did not give rise to a duty on the part of defendants to have shut off the source of water to the toilet in their condominium unit. Defendants made an inspection of the unit prior to leaving and did not observe or hear any problems with any of the bathroom fixtures. Because defendant wife had knowledge that water hoses connected to clothes washing machines may leak, defendants undertook the precautionary step of shutting off the water to their clothes washer. Also, because it was summer, not winter, when one might be concerned with water freezing inside the toilet tanks or pipes, they did not take any precautionary measures with respect to the toilets. Without prior knowledge of any defects in the toilet's operational system, nor knowledge of prior incidents concerning the breaking of stems that operate the float inside toilet water tanks, we find the absence of any further precautionary measures reasonable.

Under the trial judge's determination, if the defendants were going to be absent from the condominium unit for more than a day, they would have had to shut off the water to all the toilets in the unit. This is an unreasonable duty to impose upon owners or tenants of multiple dwelling units, whether condominium units or apartments. "Judicial notions of fairness disfavors creation of such an obligation, and we decline the invitation. We leave such a radical change in the law to the Legislature or the Supreme Court." Sacci v. Metaxas, supra, 355 N.J. Super. 499 at 507.

Reversed, and the judgment is vacated.

 

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A-3291-05T5

 

September 14, 2006