                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0953-17T1

KIMBERLY KARALIA,

         Plaintiff-Appellant,

v.

STEVEN SMITH,

     Defendant-Respondent.
_____________________________

                   Argued January 10, 2019 – Decided April 9, 2019

                   Before Judges O'Connor and DeAlmeida.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-0039-17.

                   Lawrence B. Diener argued the cause for appellant.

                   Gina M. Stanziale argued the cause for respondent
                   (Methfessel & Werbel, attorneys; Gina M. Stanziale,
                   of counsel; Alicia C. Langone, on the brief).

PER CURIAM
      Plaintiff Kimberly Karalia appeals from an order granting defendant

Steven Smith summary judgment dismissal, as well as from an order denying

her motion for reconsideration of the order for dismissal. We affirm.

                                          I

      Plaintiff rented an apartment from defendant, her landlord, in 2011. She

was forced to leave the premises on November 12, 2016, when a fire erupted in

the apartment, making it uninhabitable. The fire damaged or destroyed the

personal property she owned that was in the apartment at the time of the fire.

Plaintiff filed a verified and amended verified complaint alleging the fire

originated in the broiler or oven (the broiler was attached to the oven ). The

broiler and oven, collectively referred to as a "range," were fueled by gas.

      Plaintiff sought damages for the loss of her personal property, as well as

for the cost of finding and moving into a new apartment. She claimed that,

months before the fire, she informed defendant the oven and broiler in the

apartment did not heat up after she turned either to the "on" position, but

defendant failed to repair or replace either. She maintained defendant was both

negligent and in violation of his obligations under the lease because he did not

repair or replace the oven and broiler.




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      During discovery, plaintiff did not serve defendant with an expert's report,

but defendant served plaintiff with two experts' reports. One was authored by

Larry A. Wharton, P.E. and the other by Chris Ricciardi, CFEI.           Both of

defendant's experts concluded defendant did not cause the fire. Because relevant

to the issues on appeal, we address these experts' opinions.

      In his report, Wharton noted the burn patterns on the range indicated the

fire originated in the broiler drawer. He determined that the

            oven/broiler of the involved gas range was manually
            turned on and left unattended. The broiler pan insert
            was covered with aluminum foil, in violation of the
            warning presented in the "Use & Care Manual" that
            doing so could result in a fire. Had the operation of the
            appliance been conducted in accordance with the
            provided "Use and Care Manual" instructions and had
            the operation of the appliance been appropriately
            attended/monitored the subject fire would have been
            prevented. . . .

            [I] conclude[] that the manual nature of the appliance
            controls precludes the possibility that the gas
            oven/broiler burner turned "on" without physical
            intervention. The burner was deliberately and manually
            operated to the "on" position by a human act. The
            unattended operation of the appliance resulted in the
            captioned November 12, 2016 fire loss.

      Ricciardi agreed the fire started in the broiler and that the evidence

indicated the broiler had been turned on before the fire. He further noted the

exterior wall of the range "exhibited a heavy accumulation of grease," and that

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the inside face of the broiler door was coated in burnt grease residue. He

determined the accumulated grease within the oven and broiler ignited, causing

the fire to spread to other areas in the kitchen.

      At the conclusion of discovery, defendant filed a motion for summary

judgment, arguing plaintiff needed an expert witness to set forth at trial how his

alleged breach of the lease or negligence proximately caused the fire.          In

response, plaintiff certified she lived in the premises for seven years before the

fire, used the broiler only one time long ago, and that both the oven and broiler

stopped working four months before the fire. She claimed she notified defendant

the oven and broiler did not work, but defendant did not repair or replace either.

      She further certified she did not use the oven or broiler on the day of the

fire, as neither had been working for months.         She disputed defendant 's

contentions she turned on the broiler just before the fire and that there was a

buildup of grease. She asserted the fire erupted as a result of a malfunction in

the oven, an opinion she obtained from the local fire department, which issued

a written report stating the fire was caused by a "mechanical malfunction."

      The trial court granted summary judgment, finding plaintiff's failure to

serve defendant with an expert's report on the issue of his liability was fatal to




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her claim for damages. Plaintiff's motion for reconsideration was denied on the

ground she failed to meet the standard in Rule 4:49-2 to warrant relief.

                                        II

      On appeal, plaintiff's principal contentions are that (1) an oven and broiler

are inherently dangerous and, as a matter of law, a landlord is responsible for

any damages a tenant sustains as a result of an oven or broiler about which the

landlord had notice; (2) defendant's experts' reports and the local fire

department's report provide a basis for finding defendant was negligent; and (3)

she does not require expert testimony to prove her causes of action against

defendant.

      We begin with our standard of review relevant to summary judgment.

Rule 4:46-2(c) directs that summary judgment be granted "if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law." Essentially, the court must determine "whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of law." Liberty Surplus




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                                        5
Ins. Corp. v. Nowell Amoroso, PA, 189 N.J. 436, 445-46 (2007) (quoting Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

      We review a trial court's decision on summary judgment "de novo,

employing the same standard used by the trial court." Tarabokia v. Structure

Tone, 429 N.J. Super. 103, 106 (App. Div. 2012) (citing Prudential Prop. & Cas.

Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). We give "no

deference to the trial judge's conclusions on issues of law." Depolink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (quoting Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). Thus,

we must also "view the evidence in the light most favorable to the non-moving

party and analyze whether the moving party was entitled to judgment as a matter

of law." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)

(citing Brill, 142 N.J. at 523).

      Plaintiff first contends defendant is liable to her because a broiler and an

oven are inherently dangerous. Plaintiff does not cite and we were unable to

find any authority to support the premise that either a broiler or oven is

inherently dangerous. Although inconsistent with the notion an oven or broiler

is inherently dangerous, plaintiff also contends defendant is liable to her if he

were aware of the condition that made the broiler and oven dangerous.


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      In support of this latter contention, plaintiff cites the following from the

Second Restatement of Torts:

            Undisclosed Dangerous Conditions Known to Lessor:

            (1) A lessor of land who conceals or fails to disclose to
            his lessee any condition, whether natural or artificial,
            which involves unreasonable risk of physical harm to
            persons on the land, is subject to liability to the lessee
            and others . . . for physical harm caused by the
            condition after the lessee has taken possession, if

            (a) the lessee does not know or have reason to know of
            the condition or the risk involved, and

            (b) the lessor knows or has reason to know of the
            condition, and realizes or should realize the risk
            involved, and has reason to expect that the lessee will
            not discover the condition or realize the risk.

            [Restatement (Second) of Torts § 358 (Am. Law Inst
            1965) (emphasis supplied).]

      We note that, to establish premises liability, the plaintiff bears the burden

of proving the premises owner breached a duty of care owed to him or her.

Jerista v. Murray, 185 N.J. 175, 191 (2005). Under New Jersey law, "landlords

and business owners should be liable for foreseeable injuries that occur on their

premises." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997).

This duty arises out of the fact landlords and business owners "are in the best




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position to control the risk of harm. Ownership or control of the premises, for

example, enables a party to prevent the harm." Ibid. (citation omitted).

      However, the owner of premises generally is not liable for injuries caused

by defects for which he had no actual or constructive notice and no reasonable

opportunity to discover. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563

(2003). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an

element of the cause of action, that the defendant had actual or constructive

knowledge of the dangerous condition that caused the accident." Ibid.

      Here, the flaw in plaintiff's argument is that she did not identify the

condition that made the broiler or oven dangerous, let alone that defendant was

aware of it. In fact, she did not proffer any competent evidence about what

caused the fire. Without evidence of the defect or the condition that allegedly

made the broiler or oven dangerous, plaintiff's argument must fail.

      Plaintiff suggests that the fact the oven and broiler did not work before

the fire placed defendant on notice a dangerous condition existed within the oven

or broiler. We reject this argument, because there is no evidence that what

precluded the oven and broiler from heating up caused the fire or, for that matter,

was a dangerous condition. For the same reason, we must also reject plaintiff 's

theory that defendant's failure to promptly repair the range was a breach of the


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                                        8
lease and that such breach caused her damages. As there is no evidence the

inability of the broiler or oven to heat up is related to the fire, there is no basis

to find defendant's breach of the lease caused plaintiff's damages.

       Plaintiff notes that the local fire department's written report states the fire

was caused by a "mechanical failure, malfunction" in the range. She argues this

report provides sufficient evidence to establish defendant breached a duty of

care to her and that such breach was a proximate cause of the fire.

      Our review of this report reveals it is merely a form that includes certain

conclusory information. There is a statement in the report that the fire was

ignited due to a mechanical failure or malfunction, but the report does not

expound upon what the mechanical failure or malfunction was and how such

failure or malfunction caused the fire. The opinion in the fire department report

is clearly net and therefore inadmissible. See Townsend v. Pierre, 221 N.J. 36,

53-54 (2015). Further, there is nothing in the report that reveals the purported

mechanical failure or malfunction was one about which defendant knew or

should have known.

      Plaintiff also argues defendant's experts' reports support a conclusion

defendant was liable to her for the damages she sustained as a result of the fire.

Although defendant named Wharton and Ricciardi as experts he intended to call


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                                          9
at trial, "a party may call to the witness stand the other party's identified expert

witness." In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167, 182 (App.

Div. 2012) (citing Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 302 (2006)).

However, as previously noted, the reports of defendants' experts clearly do not

support but are damaging to plaintiff.

      Finally, plaintiff contends she does not need expert testimony to prove her

causes of action against defendant. We conclude this argument is without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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