DEBBI JENKINS v. WALTER J. CONLEY ELKS LODGE 1379

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2823-07T22823-07T2

DEBBI JENKINS, Administratrix

ad Prosequendum and General

Administratrix of the ESTATE

OF ELIJAH J. JENKINS, JR.,

deceased, and DEBBI JENKINS,

Individually,

Plaintiff-Respondent,

v.

WALTER J. CONLEY ELKS LODGE

1379,

Defendant-Appellant,

and

TOMANGO SIMMS,

Defendant.

____________________________

 

Argued December 1, 2008 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1399-04.

Daniel S. Jahnsen argued the cause for appellant (Bolan Jahnsen Reardon, attorneys; Elizabeth A. Wilson, on the brief).

Robert G. Hicks argued the cause for respondent (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Hicks, on the brief).

PER CURIAM

Defendant Walter J. Conley Elks Lodge 1379 (the Lodge) appeals a jury verdict finding it forty-percent responsible for gross damages in the amount of $300,000, or $120,000. The award stems from the death of Elijah J. Jenkins, Jr., who died in a fire deliberately set by defendant Tomango Simms in the Lodge Hall (the Hall). The Lodge alleges that the court erred in charging the jury that the decedent was an invitee. We find the charge to be proper and affirm.

In 1998, the membership of the Lodge voted to authorize decedent to serve as the caretaker of the Hall. In exchange, he would be permitted to reside in a second-floor bedroom. As caretaker, he was expected to clean up after parties, tend to the yard, take out trash, and basically maintain the premises.

The fire occurred during the early morning hours of July 20, 2003. The Hall, located in the Borough of Freehold, had been designated as an "A-3" structure, meaning that it could be used for drinking, eating, and entertainment, but not for residential purposes. In fact, a Lodge trustee advised the Borough Fire Inspector that the Hall was used exclusively for social purposes and not as a residence. The Lodge did not maintain any fire alarms or other fire safety measures required for residential use at the Hall.

Prior to the commencement of the jury trial, the court raised for consideration with counsel on the record, the issue of jury charges, and of decedent's status vis vis the Lodge and his residency at the Hall. Post-trial the judge concluded that decedent was an invitee, and determined that he would charge accordingly:

[B]ased on that voting situation and what goes on, his presence [was] encouraged to be there for whatever reason. And they have the bedroom, they have the bathroom, the tub and all the other things there. . . . [H]e is not just tolerated. He is invited to be there and he is an invitee under the circumstances and he deserves that standard of care that an owner of the premises would have to an invitee.

An invitee is invited or permitted to enter or remain on the occupier's lands for a purpose of the occupier. He enters by invitation, express or implied. DeRobertis v. Randazzo, 94 N.J. 144, 152 (1983). An invitee confers "'some benefits upon the invitor other than purely social'" benefits. Russell v. Merck & Co., 211 N.J. Super. 413, 417 (App. Div. 1986) (quoting Daggett v. Di Trani, 194 N.J. Super. 185, 189-90 (App. Div. 1984)). An invitee is owed a heightened duty of care by the occupier of the land to make reasonable efforts to maintain the premises in a safe condition, including the duty to make reasonable inspections to discover defective conditions. Restatement (Second) of Torts 343 (1965). This heightened duty is in consideration for the benefit gained by the occupier as a result of the claimant's presence.

The Lodge argues that decedent was a mere licensee because he was a member of the Lodge and a guest, in addition to a caretaker. They assert that the opportunity to function as a caretaker of the Hall was an "incidental benefit of membership." This characterization conflicts with a fair reading of the proofs.

Decedent was not a social guest at the Hall when the fire occurred, although he was a member of the Lodge, socialized with other members, and attended social events at the Hall. The Lodge's reliance on Pearlstein v. Leeds, 52 N.J. Super. 450 (App. Div. 1958), certif. denied, 29 N.J. 354 (1959), is misplaced. In that case, a social guest who came to the host residence a day early to assist in preparations for a social gathering was injured in a fall on defendant's steps. Id. at 453. The fact that the guest assisted in the preparations was not found by the court to require a higher standard of care beyond that owed to a licensee. Id. at 458. That incidental assistance on the part of the guest in Pearlstein is a far remove from the regular maintenance work performed by decedent on behalf of the Elks Lodge.

Accordingly, we concur with the trial judge's decision to charge the jury that decedent was an invitee and not a licensee. See Model Jury Charge (Civil), 5.20F(5), "Invitee Defined and General Duty Owed" (1988). Decedent's status as caretaker made him an invitee and required greater care on the part of the Lodge than the jury believed was extended to him.

Affirmed.

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A-2823-07T2

January 30, 2009