JOHN SACHS v. MARGARET MCCONNELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1173-04T21173-04T2

JOHN SACHS,

Plaintiff-Appellant,

v.

MARGARET MCCONNELL,

Defendant-Respondent.

____________________________________________________________

 

Argued November 9, 2005 - Decided May 26, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-12007-02.

Anthony C. DiLella argued the cause for appellant (Anthony Scordo, on the brief).

Keith G. Von Glahn argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Michael J. Slocum, on the brief).

PER CURIAM

Plaintiff, John Sachs, appeals from an order granting summary judgment in favor of defendant, Margaret McConnell, and denying plaintiff's cross-motion for summary judgment. The court ruled that plaintiff was a social guest or licensee and not a business invitee when he sustained an injury as a result of a slip and fall at a two-family home owned by defendant.

For approximately fifteen years, plaintiff and defendant were involved in a sporadic romantic relationship. On January 3, 2001, while he was residing with her, plaintiff was injured on defendant's premises. Defendant lived on the first floor and rented the second floor to a tenant, Paulette. While plaintiff lived with defendant, he paid no rent, but he would perform small maintenance chores for defendant, both in her apartment and in the tenant's apartment.

The front porch of the house was the entry way for both living units. However, there were separate entrances to the respective floors. As such, Paulette could gain access to her upstairs apartment without entering defendant's private living space.

The accident occurred in the front porch area as plaintiff was exiting Paulette's apartment. On the date of the accident, the weather was cold and there was snow on the ground from a recent storm. Roughly seven inches of snow remained. The water company visited Paulette's apartment to inspect the plumbing. Plaintiff and defendant dispute whether it was one or two water company employees who came to the premises, but defendant accompanied the water company employee(s) into Paulette's apartment. After the inspection, defendant was told the toilet required repair. She called plaintiff to come into Paulette's apartment to hear what was necessary to make the repairs to the toilet.

On his way to Paulette's bathroom, plaintiff noticed that the doormat, which was usually placed directly in front of the door to Paulette's apartment, was sitting several feet away from the doorway, under the windowsill. The doormat was made of rubber and was roughly one inch thick. Plaintiff saw water either on or near the doormat. Plaintiff also observed water build-up under the steps leading to Paulette's doorway.

Plaintiff entered Paulette's apartment with no incident and ascended to her bathroom. The water company employee(s) advised plaintiff on how to proceed with the maintenance of the toilet. Specifically, plaintiff was told which new parts were needed to make the repairs. Defendant drove to Home Depot, purchased the necessary repair parts and returned to Paulette's bathroom with the parts plaintiff needed to complete the repairs.

After plaintiff completed the repairs, he descended the stairs, opened the front door leading to the porch area and with his left foot he stepped out onto the doormat which was back in its usual location. Plaintiff was wearing his bedroom slippers, which had a thin rubber sole, and he was not wearing any socks. The doormat slipped out from under him, causing plaintiff to fall backward onto the stairs. As a result, he sustained a serious injury.

Plaintiff claims he saw no snow, ice or water in the area of the mat when he stepped out to exit Paulette's apartment. He contends, however, that the next day he inspected the area and found that underneath the mat it was wet. Plaintiff surmises the hidden moisture caused the mat to slip out when he stepped on it. Plaintiff also conjectures that the only person who could have moved it in front of the door was defendant, because by his recollection, after the water company employee(s) left the premises, the mat was still under the windowsill.

Plaintiff contends the trial court erred by not recognizing his status as a business invitee instead of a social guest. Alternatively, plaintiff contends that the "more fluid" approach articulated in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), should be applied since defendant is a landlord, thereby making the premises commercial. Under Hopkins, "[w]hether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all the circumstances in light of considerations of public policy." Id. at 439 (citation omitted). "That inquiry involves identifying, weighing and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care and the public interest in the proposed solution." Ibid. As an additional alternative, plaintiff asserts that, even if he was a social guest, there are genuine issues of material fact remaining that require a jury trial. We disagree and affirm.

Under the common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest, or business invitee. Parks v. Rogers, 176 N.J. 491, 497 (2003); Hopkins, supra, 132 N.J. at 433-34; Snyder v. I. Jay Realty Co., 30 N.J. 303, 311-12 (1959). Here, the motion judge considered plaintiff to be defendant's social guest or gratuitous licensee because he lived with defendant, if only on a part-time basis. According plaintiff that status under the common law, defendant was required to warn plaintiff of any dangerous condition known to defendant and unknown to plaintiff. Hopkins, supra, 132 N.J. at 434; Campbell v. Hastings, 348 N.J. Super. 264, 267 (App. Div. 2002); Hanna v. Stone, 329 N.J. Super. 385, 389 (App. Div. 2000). In other words, "a homeowner has a duty to warn the unwary social guest of a condition of the premises that the homeowner knows or has reason to know creates an unreasonable risk of injury." Parks, supra, 176 N.J. at 494; Sussman v. Mermer, 373 N.J. Super. 501, 505 (App. Div. 2004). Of course, "[i]f the guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable" because of the guest's failure to use due care. Berger v. Shapiro, 30 N.J. 89, 99 (1959) (citations omitted).

The common law on premises liability in New Jersey, however, has undergone transition toward "a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others." Hopkins, supra, 132 N.J. at 435 (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 277 (1982)); Campbell, supra, 348 N.J. Super. at 268. Although the common law premises liability rules continue to "provide guidance in determining whether a duty of reasonable care should be imposed in particular circumstances," Ocasio v. Amtrak, 299 N.J. Super. 139, 149 (App. Div. 1997), "[t]he issue [now] is whether, 'in light of the actual relationship between the parties under all of the surrounding circumstances' the imposition of a duty on the landowner is 'fair and just.'" Brett v. Great Am. Rec., Inc., 144 N.J. 479, 509 (1996) (quoting Hopkins, supra, 132 N.J. at 438).

Measured by this standard, we conclude that, under either standard, there was not sufficient evidence presented to raise a jury question regarding defendant's breach of a duty owed to plaintiff. Plaintiff's injury did not occur in the tenant's apartment, but rather in the common area where he had earlier observed wet surfaces. Plaintiff was, in effect, a member of defendant's household. As such, he was familiar with the porch area and the entry way to the tenant's apartment. Though defendant owned the property, she had no greater opportunity than plaintiff to discover the condition which plaintiff claims caused his injuries. Thus, defendant did not have an enhanced duty to make a reasonable inspection to discover the allegedly defective conditions in the common areas for the benefit of a person such as plaintiff, who was, in effect, a member of her household.

Under the historical common law label, plaintiff was a social guest or licensee. See, e.g., Longo v. Aprile, 374 N.J. Super. 469, 473-75 (App. Div. 2005) (observing that a neighbor working alone on landowners' roof did not raise neighbor's status to that of a business invitee even though the neighbor was performing a benefit for the landowners). A homeowner "does not have a duty actually to discover latent defects." Hopkins, supra, 132 N.J. at 434 (citations omitted). "[T]he owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware." Ibid. Plaintiff admitted in his deposition that there was water on the linoleum flooring on the porch and light water underneath the tenant's doorstep from which he assumed the water company had shaken off their boots. Plaintiff failed to take any steps to eliminate the water and he continued to wear thin rubber soled slippers while walking in an area he knew was wet and, therefore, possibly dangerous.

Here, there is no evidence that defendant had actual knowledge of the moisture underneath the mat that plaintiff alleges as the cause of his slip and fall. On the other hand, plaintiff observed the wet condition near the mat and on the floor in front of the entrance to the tenant's apartment when he ascended. In other words, plaintiff knew of the existence of the potential hazard. That knowledge -- even if one assumes defendant had the same knowledge -- precludes plaintiff from any recovery. See, e.g., Endre v. Arnold, 300 N.J. Super. 136, 143 (App. Div.) (determining that the alleged defects in the stairway were obvious and, even if the conditions were dangerous, "no reasonable fact finder could conclude that the decedent was unaware of those conditions"), certif. denied, 150 N.J. 27 (1997).

Assuming defendant knew of the water on the porch, she had no duty to warn plaintiff since he already had knowledge of the same hazard. For these reasons it would be unfair and unjust to impose upon defendant any duty to warn plaintiff as to the hazard presented in the common area. See Brett, supra, 144 N.J. at 509 (quoting Hopkins, supra, 132 N.J. at 438).

Affirmed.

 

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A-1173-04T2

May 26, 2006