THERESE GUILD v. JAMES ERIC SAMMON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5145-07T25145-07T2

THERESE GUILD,

Plaintiff-Appellant,

v.

JAMES ERIC SAMMON and

LAURA ANNE SAMMON,

Defendants-Respondents.

______________________________

 

Argued March 18, 2009 - Decided

Before Judges Cuff and King.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1353-05.

Howard H. Sims argued the cause for appellant (Spevack & Cannan, P.A., attorneys; Mr. Sims, on the brief).

Mary O'Keefe Massey argued the cause for respondent (Hanlon Boglioli & Hanlon, P.C., attorneys; Ms. O'Keefe Massey, on the brief).

PER CURIAM

This is an appeal from a summary judgment entered in favor of defendants against plaintiff, a social guest, who fell in the back-yard of her daughter Laura Anne Sammon's residence in daylight and good weather at about 1 p.m. on September 25, 2006. Plaintiff had visited her daughter's home to say good by before leaving on a vacation. Laura was packing in anticipation of a household move. She asked plaintiff, her mother, to watch Laura's four children so that Laura could rest and plaintiff agreed.

Plaintiff went into the back-yard with the four children and sat in a chair under a tree. The youngest child, an infant, became fussy. To soothe the child, plaintiff started to walk around holding her. As plaintiff was walking, she lost her balance, fell, and broke her ankle. This was the first time the plaintiff had walked around in the Sammon's back-yard.

We find no fault with the legal conclusion that plaintiff was a social guest as a matter of law. By her own testimony, the plaintiff went to the premises to visit her family before leaving on vacation. Her status did not change when she agreed to watch her grandchildren while her daughter rested. See Longo v. Aprile, 374 N.J. Super. 469, 473 (App. Div. 2005). Traditionally, a visitor's status is determined by the circumstances which bring her to the property. See Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div. 2002); Russell v. Merck & Co., 211 N.J. Super. 413, 417 (App. Div. 1986); Daggett v. DiTrani, 194 N.J. Super. 185, 189 (App. Div. 1984); Pearlstein v. Leeds, 52 N.J. Super. 450, 458-59 (App. Div. 1958), certif. denied, 29 N.J. 354 (1959).

The duty owed to the plaintiff as a social guest or licensee is described in the Restatement (Second) of Torts and in our opinion in Tighe v. Peterson, 356 N.J. Super. 322, 325-26 (App. Div.), affirmed o.b., 175 N.J. 240 (2002):

The duty which hosts owe to their social guests with respect to the conditions of their property is limited. A host has a duty to warn only when dangerous conditions exist on the property of which the host has actual knowledge and of which the guest is unaware. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.)[, certif. denied, 150 N.J. 27 (1997)]; see Berger v. Shapiro, 30 N.J. 89, 98 (1959). Hosts are not required to improve or alter their home in order to render it safer for a guest than for themselves. Endre, 300 N.J. Super. at 142. "Where a 'guest is aware of the dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable.'" Ibid. We recently described the duty in detail in this manner:

The law is well settled regarding the duty a host owes to a social guest as to conditions of the property. The duty is limited. A host need only warn "of [any] dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993); see also Berger v. Shapiro, 30 N.J. 89, 97-98 (1959). A "host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself." Berger, supra, 30 N.J. at 97. The host is under no duty to inspect his or her premises to discover defects that which otherwise might not be known to the casual observer. Id. at 98. Where a "guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable." Id. at 99.

[Endre v. Arnold, [supra,] 300 N.J. Super. [at 143].]

The Restatement (Second) of Torts, [] rule adopted in this State in Berger v. Shapiro, 30 N.J. at [99], states:

342. Dangerous Conditions known to Possessor

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

[Restatement [(Second)] of Torts, 342.]

[Tighe, supra, 356 N.J. Super. at 325-26.]

Our canvas of the record discloses no presence of a condition involving an unreasonable risk of harm which created a specific duty to warn or make the condition safer for guests. The back-yard was admittedly not well-manicured. The depression was two-feet wide by one-and-a-half feet long and sloped down about four or five inches. The depression was covered with brown grass; the area around it was covered by green grass. There were also other areas of brown spots in the back-yard. The depression never posed a problem when other guests were in the yard but was part of the natural terrain in the yard. The depression in the yard was observable. Plaintiff was simply not looking at the ground before she fell and did not see it.

Judge Accurso very fairly summarized the facts and the law in rendering her opinion:

I am going to grant summary judgment in this case. A host has a well-settled duty to warn a social guest of dangerous conditions of which the host has actual knowledge and of which the guest is unaware. It's cited in a number of our cases. Berger v. Shapiro is but one, 30 N.J. 89, a 1959 case.

Here, viewing the evidence most favorably to the plaintiff, I cannot find that it supports a conclusion that the defendant[s] breached the duty here. I'm viewing the competent evidential facts, mostly from the depositions, and as I'm incorporating the facts that I recited at the beginning of the colloquy into this opinion, viewing them in a light most favorable to the plaintiff, I think that the defense is entitled to summary judgment.

The duty a host owes to a social guest as to conditions of the property is limited. A host need only warn of dangerous conditions of which the host had actual knowledge and of which the guest is unaware. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 at page 434. It's a 199[3] Supreme Court case.

A host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself. The host is under no duty to inspect his or her premises to discover defects which otherwise might not be known to the casual observer. Where [a] guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable.

. . . .

The exception relating to dangerous condition on the premises which is known to the host and which is reasonably this guest cannot be expected to observe and avoid involves, it's when the defendant knows of the condition and realizes that it involves an unreasonable risk to [him]. I do not think one can look at the undisputed facts in this case and I don't think a rational fact-finder can conclude that the defendant breached her duty of care as to the condition of the property given its uneven nature.

The testimony of both parties as to this was just simply an uneven back yard, not particularly well kept, an uneven back yard, green grass in some areas, dirt [in] some others where the kids had played. Plaintiff acknowledged that she could after the accident see the depression. She did not look at it as she was going down, but there is nothing in this record to support that condition was such that a casual observer by reasonable use of her faculties couldn't have determined the uneven nature of the ground.

And that's clearly what's caused this accident. It's not an -- it's not an undisclosed condition. It's not one that poses an unreasonable risk. One could tell from the testimony of the defendant from July 4th parties, they had not thought this a situation that required warning because it's clearly observable. It's an uneven back yard, not particularly well-manicured back yard.

Looking at all the issues surrounding whether it is a social guest or an invitee, I don't think there's any question but that the plaintiff's status here is [that of] a social guest.

There are some earlier cases expressing some willingness to treat socially motivate guests as business invitees when they intended, at least in part, to perform some sort of valuable service for the host, the point that plaintiff is making here. Benedict v. Podwats[, 57 N.J. 219 (1970)]. It's not been, I think that the more recent case, the 2005 Appellate Division case, Longo v. Aprile, 374 N.J. Super. 469 (App. Div. 2005). That's the case in which the neighbor is power-washing the roof for the other neighbor and despite the fact that the defendant is sitting in his lawn chair reading while his neighbor is power-washing his roof or the siding of his house and falls off his roof, the Appellate Division says quite clearly that's a social guest situation.

If that's a social guest situation, this one clearly is. Although the plaintiff alleges she's never visited the defendant's back yard prior to the accident, there's no obligation on the part of the defense here to render their back yard safe. The record reflects the undisputed testimony that the impression on which she fell was in a brown spot in the grass visibly distinct from the surrounding grass. The yard was, uncontested, was unkempt and uneven, and that the plaintiff was not watching, she was taking care of her grandchild and not particularly watching her feet when she fell.

Although the specific depression she fell upon wasn't disclosed to her and was somewhat obscured by brown grass, the dangerousness of an uneven ground surface would have been apparent to any causal observer by use of her faculties. And under these circumstances I cannot find that the defendant failed to discharge her duty as a social host.

 
We affirm for the reasons given by Judge Accurso.

Affirmed.

(continued)

(continued)

8

A-5145-07T2

April 16, 2009