CYNTHIA PLUCINSKI v. THOMAS MERVINE and DEBORAH MERVINE, jointly, severally, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2562-06T32562-06T3

CYNTHIA PLUCINSKI,

Plaintiff-Appellant,

v.

THOMAS MERVINE and DEBORAH MERVINE,

jointly, severally, and/or in the alternative,

Defendants-Respondents.

 

Argued November 15, 2007 - Decided

Before Judges Cuff and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No.

L-1298-05.

Andrew A. Ballerini argued the cause for appellant.

Peter K. Barber argued the cause for respondents (Miller & Lamastra, attorneys; Mr. Barber, on the brief).

PER CURIAM

Plaintiff sustained personal injuries as a result of a fall on defendants' property. She appeals from the order of December 15, 2006, granting summary judgment to defendants and dismissing the Complaint with prejudice. We affirm.

I

The following facts are derived from the record submitted in support of and opposition to the motion and are viewed in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On February 20, 2003, plaintiff went to defendants' home to attend a meeting of a social group called the Haddonfield Assembly. According to plaintiff, "[t]here had been a lot of snow the week before, a couple of days before" her fall. Defendants had shoveled the snow from the sidewalk and walkway leading to the front door of their home. Plaintiff saw snow piled on either side of the walkway.

Plaintiff arrived at defendants' home about 7:30 p.m. It was "really cold" when plaintiff arrived and below freezing, but it was not snowing. Plaintiff parked her car in front of defendants' house and walked up the apron of their driveway to the sidewalk. Plaintiff was wearing loafers with leather soles at the time. The outside lights were on and plaintiff could see where she was stepping. She did not see any place on the driveway or sidewalk where the snow had melted; the sidewalk did not have snow on it. Plaintiff said the sidewalk "didn't look icy, no, otherwise I would have been -- I would have walked in the snow then." Plaintiff also stated, "I certainly wouldn't step on ice, you know"; "I mean it was shiny" and "the sidewalk, you know, was glistening, but it didn't look wet."

Plaintiff turned from the sidewalk and walked up the walkway to the front door of defendants' home. There was snow on either side of the walkway, but no snow or ice on the walkway itself. The walkway and stoop leading to the front door had been cleared of snow. Plaintiff entered defendants' home through the front door.

Plaintiff was at defendants' home until about 9:30 p.m. When she left, she exited the same front door she had entered when she arrived. She stated when she got to the end of the stoop she "turned and looked down the walkway" and "[i]t looked the same as when I had come," there was "[n]o snow" and no ice "that I could see." Plaintiff put her left foot down, slipped immediately, and fell to the ground.

Plaintiff claimed she slipped on ice in front of the stoop. However, she admitted she did not see any ice because the walkway "looked the same as when I went in, so it did not look like ice, no." Plaintiff stated she must have fallen on ice, "[b]ecause I slipped."

Plaintiff admitted she did not know if defendants had any knowledge about the condition of the walkway the evening she fell, or any knowledge about its condition that she did not have. Although she claimed the "area iced over while we were in the house," she admitted she did not know if defendants knew about this condition.

Plaintiff claims defendants owed her a duty of care to either use ice control/traction control/ice melt substance on the walkway, and/or to warn her of the lack of use of such substances, and breached that duty. Judge John Fratto granted defendants' motion for summary judgment, holding defendants had no duty to salt or place other snow melt on the cleared walkway, and no duty to warn plaintiff that they did not spread salt or ice melt.

II

Plaintiff contends the motion judge improperly relied on traditional common law principals of a homeowner's duty to a social guest instead of performing the analysis required by Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) in deciding if defendants had a duty to use ice control/traction control/ice melt substance on the walkway and/or warn plaintiff of the lack of its use. We disagree.

In reviewing summary judgment orders, we must decide "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill, supra, 142 N.J. at 540 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)).

Thus, "the essence of the inquiry" is "'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.'" Id. at 536 (quoting Liberty Lobby, Inc., supra, 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214). It is against this standard we review plaintiff's contention.

To recover under a negligence theory, a plaintiff must show: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to the plaintiff proximately caused by the defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.) (citing Anderson v. Sammy Redd and Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994), certif. denied, Anderson v. Redd, 139 N.J. 441 (1995)), certif. denied, 150 N.J. 27 (1997). "Whether a duty exists is solely a question of law to be decided by a court and not by submission to a jury." Ibid. (citing Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991)).

Hopkins did not change the law regarding the duty a host owes to a social guest:

To the social guest or licensee, the landowner owes a greater degree of care. Although the owner does not have a duty actually to discover latent defects when dealing with licensees, the owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware.

[Hopkins, supra, 132 N.J. at 434 (citing Berger v. Shapiro, 30 N.J. 89, 97-98 (1959)); Benedict v. Podwats, 109 N.J. Super. 402, 406-07 (App. Div.), aff'd o.b., 57 N.J. 219 (1970); Restatement (Second) of Torts 343 (1965); Prosser and Keeton on the Law of Torts 60 (5th ed. 1984).]

In Tighe v. Peterson, 175 N.J. 240, 241 (2002), the New Jersey Supreme Court, citing the decision from this court, reiterated this duty:

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 facilities would observe it.

[Ibid. (citing Tighe v. Peterson, 356 N.J. Super. 322, 325 (App. Div. 2002)).]

Here, plaintiff was a social guest. Therefore, to establish that defendants owed her a duty of care, she must show they knew there was ice on the walkway, and she was unaware of it. Plaintiff cannot make this showing. There is no evidence of ice on the walkway either when plaintiff arrived at or departed from defendants' home. Even if there was ice on the walkway, there is no evidence defendants knew about it either when plaintiff arrived at or departed from their home. Plaintiff improperly relies on a hearsay report from an alleged weather expert to show there could have been ice on the walkway from a re-freezing. R. 1:6-6; R. 4:46-5(a).

Affording plaintiff all favorable inferences, we conclude the motion judge properly granted summary judgment.

Affirmed.

 

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A-2562-06T3

December 17, 2007