CAROL CURTIS v. ALBERT DIORIO, THERESA DIORIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6770-03T36770-03T3

CAROL CURTIS,

Plaintiff-Appellant,

v.

ALBERT DIORIO, THERESA DIORIO,

Defendants-Respondents.

 

Submitted November 2, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, CAM-L-2187-03.

Hoffman DiMuzio, attorneys for appellant (Ernest L. Alvino, Jr., of counsel; Ekaterine N. Eleftheriou, on the brief).

Debra Hart, attorney for respondents (Steven M. Swain, on the brief).

PER CURIAM

Plaintiff appeals from the Law Division's July 23, 2004 summary judgment dismissing her complaint for personal injuries. We affirm.

Plaintiff has lived with her boyfriend at 42 White Avenue, Mount Ephraim, New Jersey, since sometime in 1998 or 1999. On October 4, 2001, she missed the step while leaving through the back entrance of the house. She fell and broke her ankle.

Defendants moved for summary judgment on the grounds that plaintiff was a social guest at the property and was aware of the condition that caused her to fall. Granting the motion, the Law Division judge made the following findings:

Prior to her fall, she had lived there for a while. They would have a spat, she would move out. She would move back. She would move out. And at the time of the incident, she was living there. And as counsel has stated, she would go in and out that door going to work, or wherever she was going, at least in or out once a day and back in once a day. So she had twice where she was in and out.

The time of the accident was dusk, barely dark. She knew of the step. She knew of the crack in the sidewalk. She knew that evidently, she's a short lady she knew that when she went out the back door, sometimes the sensor would not go on, she'd have to wave her hand up and it would click on. Or she, as counsel has stated, she could turn the light on from the switch inside.

At the time of the incident, she didn't believe that she needed that light because it was light enough that she could see.

. . . .

So she was carrying this can out to the trash. She opened the door. She went out. The sensor didn't come on. And she either slipped on the third step or failed to step on the third step and her foot went down to the sidewalk immediately in front of the last step.

[S]he came down the steps, she either missed the step, slipped on the step, and ended up with her foot in the crack.

Her status at the time of the accident was, at best, a social guest, and at worst, a licensee. The duty to a social guest and/or a licensee by a landowner is to alert that person or persons of known dangers existing on the property.

In this case, the plaintiff knew of the cracked sidewalk because she had lived there. She was aware of the condition.

We agree with the judge. As the New Jersey Supreme Court recently iterated in Tighe v. Peterson, 175 N.J. 240, 241 (2002), "a host's duty to a social guest includes an obligation to warn of a known dangerous condition on the premises except when the guest is aware of the condition or by reasonable use of the facilities would observe it." That is what happened here. Plaintiff had lived at the property for the better part of five years. She regularly used the back steps. She was aware of the crack in the sidewalk, and that she could turn on the back porch light. She decided not to turn on the light because she believed there was sufficient light for her to see where she was going.

It is unfortunate the accident happened. Nonetheless, we agree with the motion judge that defendants owed no duty to plaintiff under these circumstances.

 
Affirmed.

(continued)

(continued)

4

A-6770-03T3

November 14, 2005