TINATIN TAKAICHVILI v. GEORGE GABOUNIIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2699-07T32699-07T3

TINATIN TAKAICHVILI,

Plaintiff-Respondent,

v.

GEORGE GABOUNIIA,

Defendant-Appellant.

_________________________________

 

Argued January 14, 2009 - Decided

Before Judges Axelrad and Parrillo.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2704-06.

John V. Mallon argued the cause for appellant (Chasan Leyner and Lamparello, attorneys; Mr. Mallon, of counsel and on the brief; Cindy Nan Vogelman and Richard W. Fogarty, on the brief).

Ben Lyhovsky argued the cause for respondent (Law Offices of Igor A. Orak, LLC, attorneys; Mr. Lyhovsky, on the brief).

PER CURIAM

This premises liability action was tried before a jury and resulted in a verdict in favor of plaintiff Tinatin Takaichvili in the net amount of $162,000. Defendant George Gabouniia appeals from the judgment, arguing, among other things, that the trial judge erred in ruling, as a matter of law, that defendant owed a duty to plaintiff as an invitee, rather than as a social guest. We agree, and therefore reverse and remand for a new trial on liability only.

The relevant facts are fairly straightforward. This matter arises from plaintiff's fall from a deck attached to the rear of the home of defendant, her son. Plaintiff, who lived in New York, had arrived at defendant's home on Friday, May 7, 2000, and stayed overnight for a barbeque that her son was hosting the next day for family and friends from the Republic of Georgia. The party was to be held, in part, on the rear deck, which was about thirteen feet above the ground. A set of stairs off the deck led to the backyard, the top step of which was shorter than the other four and with a higher rise. There was no railing on the stairs.

Plaintiff helped prepare for the party by baking some food in the oven. During the party, plaintiff was standing at the railing of the deck in the vicinity of the barbeque when defendant asked her to cut some chicken he had cooked on the grill. He then either placed a tray of four chickens on the railing, or handed the plate to plaintiff, who placed it on the railing. In any event, facing the railing with a knife in her right hand, she proceeded to cut the chickens, stepping incrementally to the right as she moved down the line of chickens spread out on the tray. After cutting the third chicken, plaintiff moved to the fourth and, focusing her attention on the chicken, took a step right off the end of the deck. There being no railing to break her fall and dropping "two steps at once," plaintiff sustained serious injuries to her knee.

Before this incident, plaintiff had been a frequent guest at the home defendant purchased in November 2003, visiting her son and his family every other weekend. She was familiar with the deck, having been on it about ten times before the accident. Plaintiff had also been up and down the deck stairs on two prior occasions. The general configuration of the deck and steps was visible and apparent. It was also obvious that there was no railing on the stairs, that the riser on the first step from the top was higher than it should be, and its overhang shorter.

Plaintiff sued defendant for negligence. Defendant moved for summary judgment, arguing that as his social guest, defendant only owed plaintiff the duty to warn her of defects of which she was not otherwise aware. The motion judge appeared to agree that plaintiff's status was that of a social guest, but nevertheless denied summary judgment relief, finding issues of material fact whether the staircase constituted an open and obvious risk such as to extinguish defendant's duty of care and whether plaintiff was aware of this risk. However, another judge presided over the trial, and, mistakenly believing the issue already decided, determined plaintiff's status to be that of an invitee as a matter of law. In fact, following plaintiff's expert's testimony, the trial judge instructed the jury as to the higher duty of care owed to an invitee, and at the close of plaintiff's case, denied defendant's motion for a directed verdict on the same basis. After again being charged as to the elevated duty of care owed an invitee, the jury returned a verdict finding defendant 60% liable and awarding plaintiff a gross amount of $270,000 in damages.

On appeal, defendant argues, among other things, that the court erred in determining plaintiff's status as an invitee and thus applied the wrong legal standard. We agree.

New Jersey courts have not abandoned the traditional classifications for establishing premises liability, i.e., invitee, licensee, and trespasser. According to our Supreme Court,

The traditional common law approach to landowner or occupier tort liability toward a person who has been injured because of a dangerous condition on private property is predicated on the status of the person on the property at the time of the injury. Historically, the duty of the owner or occupier to such a person is gauged by the right of that person to be on the land. That status is determined by which of three classifications applies to the entrant, namely that of a business invitee, licensee, or trespasser.

An owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related. A lesser degree of care is owed to a social guest or licensee, whose purposes of being on the land may be personal as well as for the owner's benefit. The owner owes a minimal degree of care to a trespasser, who has no privilege to be on the land.

[Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993) (citations omitted).]

The duty owed to a trespasser is relatively slight: generally, a landowner has a duty to warn trespassers "only of artificial conditions on the property that pose a risk of death or serious bodily harm." Id. at 434. A landowner owes a greater degree of care to a social guest or licensee: "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." Ibid. A landowner generally owes an invitee or business guest the highest duty, i.e., a duty of "reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Ibid.

Generally, a person who is on the property owner's premises to confer some benefit on the invitor is regarded as an invitee and is owed a greater duty of care than a licensee. Benedict v. Podwats, 109 N.J. Super. 402, 407 (App. Div.), aff'd o.b., 57 N.J. 219 (1970). A social guest or licensee has the right to enter or remain upon land by consent of the owner. Parks v. Rogers, 176 N.J. 491 n.4 (2003); Pearlstein v. Leeds, 52 N.J. Super. 450, 457 (App. Div. 1958), certif. denied, 29 N.J. 354 (1959). An invitee, on the other hand, is permitted to enter or remain on land for a purpose of the owner. Benedict, supra, 109 N.J. Super. at 407.

Here, in ascribing invitee status to plaintiff, the trial judge appeared to rely almost exclusively on the fact that plaintiff performed chores at the direction of defendant, the homeowner. We disagree with this evaluation.

Clearly, the determination of whether a landowner owes a third party a duty is fact specific and should be made by the court. Jimenez v. Maisch, 329 N.J. Super. 398, 403 (App. Div. 2000). Equally clear is that we owe no special deference to the trial court's interpretation of the law and the legal consequences that flow from it. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

A plaintiff's status must be consistent with the primary purpose of being on the property. See Daggett v. Di Trani, 194 N.J. Super. 185, 189 (App. Div. 1984). In this regard, "[i]t has generally been held the guest remains such despite the performance of services beneficial to the host in the course of the visit." Pearlstein, supra, 52 N.J. Super. at 458. The rationale is that although the guest may assist with certain services, the main purpose of his or her presence is social and not to assist. Id. at 458-59. In Pearlstein, for instance, we refused to permit the duty of care to be increased and found that a cousin who was preparing food at a family party was not an invitee. Id. at 458. "The nature of the relationship should be governed throughout by that purpose and not by the fact that the guest may during a small portion of the stay assist in preparing food for a meal or perform some other minor chore of benefit to the hostess at the latter's request." Id. at 459.

On the other hand, when a person, even a family member, is invited solely for the purpose of assisting and not to attend the social gathering, the person is an invitee. Benedict, supra, 109 N.J. Super. at 408. In Benedict, where the plaintiff was present to arrange flowers and provide other chores, and was given a key to let herself inside the home to work when no one was present, we distinguished Pearlstein, wherein the plaintiff was only helping the defendant incidentally. Id. at 405, 407-08. We further held in Benedict that so long as it remained the plaintiff's primary purpose, "[t]he fact that the services are performed gratuitously does not negate the status of the person doing them as an invitee." Id. at 409.

Here, the facts resemble Pearlstein more closely than Benedict. The facts clearly indicate plaintiff's primary purpose for being at her son's home that weekend, as the case on many previous weekends, was to visit with her family, and on this particular weekend also to attend a family barbeque with friends. As such, she remained a social guest of defendant, as even the motion judge appeared to recognize. Her status did not change to that of invitee simply because she volunteered to assist in some party preparations. Thus, the imposition on defendant of the more elevated duty of care owed an invitee was error, requiring a new trial.

Defendant nevertheless argues that a new trial is unnecessary because his motion for a directed verdict at the close of plaintiff's case should have been granted. On this score, he contends there is no liability to the social guest when she knows of the danger and the facts here indisputably demonstrate that the risk was so open and obvious that there was no duty on the host's part to warn. See Tighe v. Peterson, 175 N.J. 240, 241 (2002); Berger v. Shapiro, 30 N.J. 89, 93-94 (1959); Bagnana v. Wolfinger, 385 N.J. Super. 1, 4 (App. Div. 2006). We would agree were this a case where the deck stairs were being used for their intended purpose and plaintiff was injured while either descending or ascending them. That, however, is not what happened here. The accident occurred while plaintiff was standing on the deck proximate to the stairs and she fell when she stepped to the right and her right foot dropped. Thus, whether the defect in the stairs was so visible and obvious as to obviate the need to warn is only part of the inquiry. The question remains whether defendant, by placing her in a position proximate to a known danger, then took reasonable precautions that she would, in fact, recognize that danger.

On this score, the law of premises liability has undergone somewhat of a transition from exclusive reliance on the injured party's status 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 Markets, Inc., 89 N.J. 270, 277 (1982)); see also, Campbell v. Hastings, 348 N.J. Super. 264, 268 (App. Div. 2002). 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), the task now is to consider all the surrounding circumstances to determine whether it is fair and just to impose upon the landowner a duty of reasonable care commensurate with the risk of harm. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509 (1996). In assessing whether imposition of such a duty would be fair and just, courts weigh and balance the following four factors: (1) the relationship of the parties, (2) the nature of the attendant risk, (3) the opportunity and ability to exercise care, and (4) the public interest in the proposed solution. Hopkins, supra, 132 N.J. at 439; Campbell, supra, 348 N.J. Super. at 269; Ocasio, supra, 299 N.J. Super. at 149-50.

Measured by this standard, we conclude sufficient foreseeable harm was present to raise a jury question regarding defendant's breach of the obligation to exercise reasonable care, and therefore, denial of defendant's motion for a directed verdict was proper. In this regard, negligence can occur from defendant's creation of the very risk that plaintiff encountered by engaging in the requested task so close to a known hazard. Indeed, the risk of harm inherent in such a situation may have been reasonably foreseeable under the circumstances. Defendant knew or had reason to know of the defective stairs and yet he placed plaintiff in a position proximate to this danger and assigned her a task to boot, failing to provide warning to her.

To be sure, plaintiff here had visited defendant's home before, but we do not view this fact as dispositive of the liability issue. In Parks, there was evidence that the plaintiff, although a first-time visitor, had become acquainted with the banister when she had ascended the stairs without incident prior to her unfortunate fall later in the evening. Parks, supra, 176 N.J. at 503. Yet, the Supreme Court found genuine issues of material fact that precluded summary judgment. Id. at 502. So too here, plaintiff was entitled to submit her case to the jury on the issue of whether defendant breached a duty owed her by creating an adverse condition and failing to warn plaintiff of the danger she may not have otherwise recognized.

While plaintiff's case did proceed to a jury, it did so under instructions that, on the one hand, wrongly elevated defendant's duty based on classifying plaintiff's status as an invitee, and on the other hand, failed to address whether he otherwise breached a duty of reasonable care to guard against dangers caused by his own actions.

Given our present disposition, we need not address defendant's remaining issues other than those alleging errors that risk being repeated on retrial. Defendant complains the court instructed the jury on the duty owed an invitee by interrupting a juror's questioning of plaintiff's expert witness about the dangerousness of the deck. Such procedure was ill-advised. In the first place, the subject of the expert's testimony was not specifically related to the issue of legal status. Second, as noted, the court's classification of plaintiff's status was erroneous. Third, although a trial judge has broad discretion over the conduct of a trial, Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971), the procedure for requesting jury instructions, Rule 1:8-7(a), contemplates counsel's participation. Indeed, "[t]he purpose of the rule is to allow counsel to be heard in avoidance of judicial error." Pressler, Current N.J. Court Rules, comment 1 on R. 1:8-7 (2008). In this regard, the effect of a mistaken jury charge should be viewed from the perspective of its effect on the trial as a whole. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd as modified, 164 N.J. 1 (2000). Here, the judge arbitrarily intervened at a point in the trial when a separate factual issue of "dangerousness" was being discussed to give the jury an instruction that ultimately proved to be an incorrect statement of the applicable law, all before counsel was given the opportunity to make his argument for a lesser legal duty. The potential for prejudice is obvious.

Moreover, this charge was given after allowing a juror to directly question an expert witness and to comment on the evidence. This procedure should not be repeated at retrial.

It may indeed be reasonable for a judge to allow a jury question when it is written down by the juror, counsel has an opportunity to screen it and object at sidebar so as not to elicit prejudice from the particular juror, and when the question is not disruptive. State v. Jumpp, 261 N.J. Super. 514, 528-534 (App. Div.), certif. denied, 134 N.J. 474 (1993); R. 1:8-8(c). However, in Jumpp, we also cautioned:

[a]lthough we find no error in the trial court's permitting juror questioning of the witness in this case, we do not endorse the practice because the inherent dangers are considerable. We direct, therefore, that trial courts withhold implementing such practice until the Supreme Court has had an opportunity to thoroughly consider this issue to determine whether jurors should be permitted to question witnesses and, if so, establish precise guidelines and procedures.

[Jumpp, supra, 261 N.J. Super. at 534.]

In this case, the trial judge gave the jurors wide latitude to ask the expert witness questions directly. The judge neither required the jurors to write the questions down first, screened the questions with counsel, nor conducted a sidebar for objections. For obvious reasons, such an uncontrolled and unfiltered procedure possesses enormous potential for prejudice and is simply not permitted.

 
Reversed and remanded for a new trial on liability only.

On appeal, defendant does not challenge the damage award.

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A-2699-07T3

February 23, 2009