PETER KAVITT et al. v. RONALD J. BERGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6423-04T36423-04T3

PETER KAVITT and MARIBETH KAVITT,

Husband and Wife,

Plaintiffs/Appellants,

v.

RONALD J. BERGE (improperly named

as RICHARD J. BERGE),

Defendant/Respondent.

_______________________________________

HENRY OYAMBURU,

Plaintiff/Appellant,

v.

RONALD J. BERGE (improperly named as

RICHARD J. BERGE),

Defendant/Respondent.

_______________________________________

 

Argued August 8, 2006 - Decided August 24, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1060-04.

David P. Corrigan argued the cause for appellants (Hobbie, Corrigan, Bertucio & Tashyjy, attorneys; Mr. Corrigan, on the brief).

Louis J. DeMille, Jr., argued the cause for respondent (Romando, Tucker, Zirulnik & Sherlock, attorneys; Mr. DeMille, on the brief).

PER CURIAM

The Law Division granted summary judgment to defendant Ronald Berge in this negligence case, which arises out of injuries that plaintiffs, two police officers, sustained when one of them fell off a ladder while responding to a medical emergency at Berge's residence and toppled onto the other officer. Plaintiffs appeal the trial court's ruling that the incident was not reasonably foreseeable as a matter of law. We affirm.

The pertinent facts are as follows. On May 22, 2002, Berkeley Township Police Officers Peter Kavitt and Henry Oyamburu responded to a 911 emergency call reporting that a woman had fallen and injured her ankle at defendant's single-family house in the municipality. Upon arriving at the premises, Officer Oyamburu observed through a window what appeared to him to be a woman, later identified as defendant's mother, seemingly lying on top of a screaming baby. Oyamburu attempted to get inside the house, but found the doors and first-floor windows were all locked. He radioed his dispatcher for assistance and began looking for another means of entry.

Oyamburu located a wooden A-frame ladder at the rear of the house underneath the second-floor deck. He estimated that the ladder was about six to eight feet high. Oyamburu propped the ladder against the deck. By this point Officer Kavitt arrived at the scene, and held the ladder for stability while Oyamburu climbed up it. Upon reaching the top of the ladder, Oyamburu grabbed two vertical wooden balusters along the deck. While attempting to hoist himself over the deck railing, the balusters separated from the deck, causing Oyamburu to fall backwards onto the concrete patio below. Kavitt unsuccessfully attempted to break Oyamburu's fall. Consequently, both officers sustained severe injuries. The homeowner, Ronald Berge, arrived shortly thereafter.

The deck at the residence was originally built by a prior owner. About fifteen years before the subject accident, shortly after his first grandchild was born, Berge replaced the deck's existing horizontal safety railing with vertical wooden balusters. The balusters were nailed into place. Berge checked the balusters each year, often finding loose ones which he would then secure with screws.

The plaintiff officers simultaneously filed two negligence actions in the Law Division through the same counsel. Their complaints allege that Berge, as the owner of the premises, was negligent in allowing a dangerous condition, specifically a structurally unsound deck railing, to exist on the premises. In support of that contention, plaintiffs obtained an expert report from an engineer, William Poznak, P.E. The expert concluded that the deck railing was unsafe and lacked the required strength. In particular, the expert opined that the so-called "in-fill" area of the railing where the balusters were located violated the general safety standards of the BOCA National Building Code, which recites in Section 1109.8.2.1 that "[t]he in-fill area of guardrail system shall be designed and constructed for a horizontal concentrated load of 200 pounds (91 kg) applied on a [one] square foot (.093 meters [squared]) area at any point in the system, including intermediate rails or other elements serving this purpose."

Following discovery, defendant moved for summary judgment on two grounds: (1) the plaintiffs' cause of action was precluded by the common-law "Fireman's Rule," see Berko v. Freda, 93 N.J. 81 (1983), barring certain negligence claims by firefighters and police officers injured in the line of duty; and (2) defendant did not breach any duty to plaintiffs because, among other things, their accident was not foreseeable.

The motion judge rejected defendant's argument that the plaintiffs' injuries were subject to the Fireman's Rule, citing N.J.S.A. 2A:62A-21, a statute that abolished the doctrine except in certain limited circumstances not applicable here. However, the motion judge did agree with defendant that the accident was not reasonably foreseeable, even giving all favorable inferences to plaintiff as the non-moving party. The judge observed that a homeowner would not reasonably expect some one to "put a ladder up to [his] second-story deck that has no access to it for any reason from the outside [but] only from the inside, [and] grab onto two balusters which aren't the main support of the railing[.]" The judge recognized that the police officers were present and attempting to carry out their duties in response to a reported emergency. Nevertheless, he noted:

But now you have an owner that doesn't expect [the police]. There's no foreseeability that they're going to come. They don't expect an emergency. There's no foreseeability that anyone's going to use the balusters of a railing to climb up on it. The railing is there just to keep people from rolling through the deck. The main columns of the rail and the top of the rail and the bottom of the rail actually provided strength and stability.

Then you look at the nature of the attendant risk. The police officer's going to take a ladder from under the deck, put it on there, climb up on it, grab the balusters which was the wrong place to grab. And maybe it was because of the height and everything else. Obviously it was. But there's no foreseeability for the owner here.

Additionally, the motion judge considered the public policy implications of his ruling. He expressly recognized the public interest in compensating injured law enforcement officers, but determined that that general concern, under these particular facts, were outweighed by the interests of homeowners in not being held financially accountable for accidents they had no reason to foresee.

Accordingly, the motion judge granted summary judgment to defendant on July 22, 2005. This appeal followed.

Plaintiffs essentially repeat the same arguments on appeal that they made to the motion judge. Having considered those arguments and the record as a whole, we are satisfied that the motion judge's dismissal of plaintiffs' complaints was proper under these idiosyncratic facts.

As a threshold matter, we consider the legal status of the plaintiffs, as police officers, when they were present on defendant's property. Defense counsel concedes that the officers, under traditional premises liability classifications, qualify as either invitees or licensees and not as trespassers. To the extent such common-law classifications still should guide our analysis, see Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 436-39 (1993)(suggesting a more flexible approach to premises liability analysis than the trespasser/licensee/invitee hierarchy), we conclude that plaintiffs are entitled to be treated under tort law with a level of care that is at least commensurate with the treatment customarily owed to invitees. See Krauth v. Geller, 31 N.J. 270, 272-273 (1960)(noting that an officer responding to an emergency call at a dwelling has a sui generis status not amenable to traditional classification, "for his entry does not depend upon permission or invitation of the owner or occupier, nor may they deny him admittance").

This signifies that plaintiffs were owed a duty by the defendant, as owner of the premises, to exercise reasonable care for their safety, and to "take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him . . . and of hazardous conditions or defects which he . . . by the exercise of reasonable care, could discover." Model Jury Charge (Civil), Duty Owed as to Condition of Premises, 5.24B (2003); see also Handleman v. Cox, 39 N.J. 95, 111 (1963). We do not discern that a different level of care would be called for under the multi-factor approach of Hopkins, including a consideration of the relationship of the parties, the nature of the attendant risk, defendant's opportunity and ability to exercise reasonable care and the public interest in the proposed solution, factors which the motion judge duly addressed in his analysis. See Hopkins, supra, 132 N.J. at 439.

Plaintiffs' entitlement to a reasonable measure of protection from hazardous conditions on defendant's premises does not, however, resolve the question of liability. Plaintiffs have no cause of action for negligence unless their accident is also one that would be reasonably foreseeable. See Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 402-04 (2006); see also Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572-573 (1996)(describing foreseeability as a "crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate"). On this point, we concur with the motion judge that such reasonable foreseeability is absent, even viewing the facts, as we must under R. 4:46, in a light most favorable to plaintiffs. A homeowner would not reasonably anticipate that the balusters on his or her second-floor deck railing would need to be strong enough to support an adult trying to hoist himself over the railing in order to get into the home.

This is not a situation in which a guest to the home had leaned on the deck railing and the structure gave way, or a child playing on the deck had pushed through the balusters and then fallen off the deck. A homeowner simply would not reasonably expect a visitor would be apt to use a second-floor deck, with no stairway whatsoever connecting it to the ground level, as a point of ingress into the home. Counsel have not identified to us, and our own independent research has failed to uncover, any reported cases in which a homeowner was found to have a duty to maintain a deck railing or baluster to guard against the kind of risk presented here. Nor are we presented with any authority suggesting that the BOCA code provision cited by plaintiffs' liability expert was fashioned to safeguard a person who might grab the balusters and attempt to hoist himself over the railing.

Because we perceive no genuine material issue of fact on this critical question of foreseeability, the entry of summary judgment for defendant was entirely appropriate. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

 

Peter Kavitt's wife, Maribeth Kavitt, is listed as a co-plaintiff with him and asserts a claim for per quod damages.

The reported negligence cases concerning accidents involving balusters generally involve children who fall through spaces between the balusters, or where the balusters are missing or otherwise insufficient to contain the children. See, e.g., Pitts v. District of Columbia, 391 A.2d 803 (D.C. 1978)(child fell through stairwell opening left by missing baluster); Meiners v. Moyer, 119 Ill. App.2d 94, 255 N.E.2d 201 (Ill. App. Ct. 1970)(child fell through missing balusters in stairwell); Davis v. Allstate Ins. Co., 346 So. 2d 1111 (La. Ct. App. 1977)(landlord held not liable when child stuck her head through baluster spaces); Lemm v. Gould, 425 S.W.2d 190 (Mo. 1968)(child climbed through opening between porch baluster and wooden column); Henricksen v. State, 319 Mont. 307, 84 P.3d 38 (Mont. 2004)(child slipped between stairway balusters); Reyes v. Gagliardi, 16 N.Y.2d 633, 209 N.E.2d 116, 261 N.Y.S.2d 75 (N.Y. 1965)(infant fell through space between porch railing pipes not protected by balusters or mesh work).

In light of this disposition, we need not address defendant's separate arguments under the Fireman's Rule.

(continued)

(continued)

10

A-6423-04T3

 

August 24, 2006