GERALDINE GRECCO v. JOHN SULLIVAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1124-09T3

GERALDINE GRECCO,

Plaintiff-Appellant,

v.

JOHN SULLIVAN and MADELINE SULLIVAN,

Defendants-Respondents.

________________________________

September 17, 2010

Submitted: June 9, 2010 Decided:

Before Judges Cuff, C.L. Miniman and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-587-07.

Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys for appellant (Kristen M. Welsh, on the brief).

O'Donnell McCord, P.C., attorneys for respondents (Maryann O'Donnell McCoy, of counsel; David N. Heleniak, on the brief).

PER CURIAM

Plaintiff Geraldine Grecco appeals from an October 9, 2009, summary judgment dismissing her personal-injury complaint in which she alleged that defendants John and Madeline Sullivan failed to inspect, maintain, and manage the premises and walkways on their property, causing her to slip and fall.1 Because defendants owed to plaintiff only the duty of care for social guests, which as a matter of law they did not violate, we affirm.

Because this is an appeal from a summary judgment, we accept plaintiff's version of the facts and draw all reasonable inferences in her favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). The par ties' homes were located directly across the street from each other in Hamburg, and they had been "neighborly" since 2001. Plaintiff helped John on various occasions, and the parties occasionally visited each other's homes for social events.

In early 2007, there was an area snowstorm. Shortly there after, defendants needed to replace their refrigerator and, as a result, John asked plaintiff to store an estimated 100 pounds of frozen food for approximately two days. Plaintiff asserts that John brought the food to her home, and thus, she had no knowledge of the condition of his driveway after the snowstorm.

On February 8, 2007,2 John notified plaintiff that his new refrigerator had been delivered. He did not discuss the condi tion of his driveway. Plaintiff offered to return the food to defendants' home because Madeline was very ill and John's health was also impaired. The trip from plaintiff's home to defen dants' residence was on a descending slope. Plaintiff and the person with whom she lived drove to the top of defendants' driveway and parked on the street. Plaintiff observed that the driveway seemed icy. John admitted it contained icy patches that he could not remove because it was too cold for salt to melt the ice.

Plaintiff decided not to drive her vehicle down the drive way out of concern that she would be unable to back her car up the slope to the street. Rather than returning the food another day, plaintiff elected to cross defendants' property on foot over the front lawn, which was covered with several inches of snow. Plaintiff had never walked across defendants' lawn but had visited on several occasions by walking down the driveway. John was aware that some other residents of the steeply sloped neighborhood preferred to walk on snow rather than pavement, believing that snow offered better traction. Plaintiff con tended that she chose the lawn because the snow was "crunchy" and, therefore, would provide a better foothold.

As plaintiff crossed defendants' lawn, she fell and broke her left arm. At the time, the bags of frozen food she was car rying in each hand weighed approximately twenty to twenty-five pounds each.

On defendants' motion for summary judgment, the judge con cluded that plaintiff was a social guest.3 The court held that her return of the frozen food was a "gesture of neighborliness," done for free, and did not confer a benefit on defendants that elevated plaintiff's status to that of a business invitee.

Plaintiff asserts that the judge erred in granting summary judgment because she should be characterized as a business invitee and, therefore, was entitled to a higher standard of care. More specifically, plaintiff alleges that she was on defendants' property to confer a benefit upon them, and as a result, she was entitled to the elevated status of business invitee. She asserts that defendants breached their duty of care by failing to completely clear the driveway of ice and to provide a safe pathway to the front door. Even if plaintiff was merely a social guest, she contends that defendants breached the lesser duty of care by failing to inform her of risks to which she was exposed in traversing their property.

In reviewing a ruling on a summary-judgment motion, we apply the same standard as that governing the trial court. Lib erty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Summary judgment is "designed to provide a prompt, business like and inexpensive method" of resolving cases. Judson v. Peo ples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). Sum mary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

In Brill, supra, 142 N.J. at 540, our Supreme Court outlined the standard for deciding a summary-judgment motion:

[A] determination whether there exists a "genuine issue" of material fact that pre cludes summary judgment requires the motion judge to consider whether the competent evi dential 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.

Therefore, the court must assume that the opposing party's assertions of fact are true and "grant all the favorable inferences to the non-movant." Id. at 536.

The duty of a homeowner to a third party entering his or her land is based on the common law classifications of business invitee, social guest, or trespasser. Snyder v. I. Jay Realty Co., 30 N.J. 303, 311-12 (1959) ("We believe that adherence to the traditional classifications is desirable in that it lends a reasonable degree of predictability to this area of the law."). A business invitee is someone who has been invited onto the land in a commercial or business context. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). For a business invitee, the homeowner must: (1) make a reasonable inspection to discover defective conditions on the property which may not have been known; and (2) use reasonable care to make the premises safe or warn the third party regarding dangers of which the invitee is unaware. Id. at 434, 445.

A social guest is a gratuitous licensee who enters the home owner's premises with an "invitation." Berger v. Shapiro, 30 N.J. 89, 96 (1959) (citing Taneian v. Meghrigian, 15 N.J. 267, 275 (1954)).

A "social guest" has been defined as a gratuitous licensee in that while he is on the premises of another as a result of an "invitation" in the laymen's sense of the word, he is not an "invitee" within the legal meaning of the term. The social guest enjoys the hospitality of the host and expects that the host will take the same care of him as he does of himself and his family. However, the host must warn a social guest of risks of harm or dangerous conditions of which the host has knowledge and the guest is unaware. Berger, [supra,] 30 N.J. [at] 97-98; [Restatement (Second) of Torts, 342 (1965)].

On the other hand, the duty of care owed by an occupier of land to his "invitee," legally understood, as the trial court properly charged, "is to use reason able care to make the premises safe, and this includes the duty to make a reasonable inspection to discover defective condi tions." Handleman v. Cox, 39 N.J. 95, 111 (1963).

[Benedict v. Podwats, 109 N.J. Super. 402, 407 (App. Div.), aff'd o.b., 57 N.J. 219 (1970).]

A social guest can be on the premises for either personal reasons or for the landowner's benefit. Hopkins, supra, 132 N.J. at 433. When a social guest enters the property, the need to make a reasonable inspection to discover defective conditions is extinguished; however, the need to either use reasonable care to make the premises safe from conditions known to the landowner or to warn the guest of dangers that are not open and obvious is still present. Id. at 434; see also Pearlstein v. Leeds, 52 N.J. Super. 450, 459 (App. Div. 1958) (stating that the only difference between the business-invitee and social-guest duties is that a homeowner must exercise reasonable care to discover dangerous conditions on the land when the entrant is a business invitee), certif. denied, 29 N.J. 354 (1959). In Parks v. Rogers, 176 N.J. 491 (2003), the Supreme Court observed:

The duty of care owed to a social guest is greater than that owed to a trespasser, but less than that owed to a business visitor. A landowner is not required to provide greater safety on his premises for a social guest than he would for himself. For exam ple, the landowner does not have a duty to scour the premises to discover latent defects. On the other hand, the social guest should be at no greater risk than the landowner, who, by reason of his knowledge of the property, has the ability to protect himself against a dangerous condition.

[Id. at 497-98 (footnote and citations omitted).]

Thus, the homeowner does not need to make improvements that ren der the land safer for a social guest than he or she would do for private use. Berger, supra, 30 N.J. at 97. Rather,

[f]rom that simple and fair-minded prem ise, the law places on the landowner the duty to disclose to the social guest the dangerous condition or to correct it. Thus, "the social guest . . . is at least entitled to the same knowledge possessed by the host of dangerous conditions and should not be expected to assume the risk of such condi tions in the absence of a warning." Berger, supra, 30 N.J. at 98. Once the proofs show that the landowner knew of a particular con dition of the property, "[t]he inquiry is not whether the defendant realized the con dition held any risk but whether a reason able man would be cognizant of it." Id. at 100. If, however, "the guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable" because of the guest's failure to use due care. Id. at 99.

[Parks, supra, 176 N.J. at 498.]

The determination of whether a duty exists is a question of law. Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).

Plaintiff argues the judge erred in determining that she was a social guest and not a business invitee. First, she notes the judge failed to cite any case law.4 Second, she contends there were genuine issues of material fact, preventing summary judgment. Because we have accepted all of the facts advanced by plaintiff as true, the fact disputes raised by defendants are irrelevant to the issue of which duty of care applies to defen dants' acts and omissions. The crux of plaintiff's argument, however, is that she conferred a "benefit" on defendants when she entered the property to provide "the service of returning defendants' frozen food," and that act elevated her status with respect to the level of care that she was owed.

In Longo v. Aprile, 374 N.J. Super. 469, 471 (App. Div. 2005), the parties were neighbors who routinely assisted each other with chores and tasks without the expectation of compen sa tion. The plaintiffs sued after the husband fell off the roof of the defendants' house while power-washing it. Id. at 470. Even though the defendants were home, they were not supervising or assisting the plaintiff husband. Id. at 471. In holding that the husband's status was that of a social guest, the motion judge noted that there was "no enforceable commercial promise" between the parties and that the defect in the property over which the plaintiff husband tripped the drip ledge on the roof was open and visible. Ibid. Furthermore, the motion judge held that "[w]e have a situation where a neighbor was assisting a neighbor in a friendly and cooperative way as part of regular social interchanges that exist[] in our communities." Id. at 471-72.

In affirming the trial court's analysis, we further held that "the fact that [the husband] was performing a benefit for defendants does not raise his status to that of a business invitee under common law premise liability." Id. at 473 (citing Hopkins, supra, 132 N.J. at 433).

On the other hand, when an individual enters land as an employee or for a purely commercial purpose, we tend to classify that individual as a business invitee. See Russell v. Merck & Co., 211 N.J. Super. 413, 415, 418 (App. Div. 1986) (holding that an employee injured while playing softball on a company team at a company-owned field was an invitee because employee morale was a benefit conferred on the defendant).

The facts of the present case more closely resemble Longo, supra, 374 N.J. Super. at 470-72. Both here and in Longo, the parties were neighbors who were adhering to societal conventions by helping one another. Plain tiff was not on the land for a commercial purpose nor was she either an employee of defendants or an independent contractor providing goods or services to defendants.

Plaintiff cites Benedict, supra, 109 N.J. Super. at 407-08, to support her claim that she is a business invitee, not a social guest. She urges that Benedict determined that "[o]ne who is on the homeowner's property to confer some benefit upon the invitor is regarded as an invitee and is owed a greater duty of care than a social licensee," citing Benedict, supra, 109 N.J. Super. at 407. She urges that "the status of invitee hinges upon whether or not a benefit was conferred."

In Benedict, the plaintiff drove to her sister's home to per form a series of chores, including creating a floral arrange ment with flowers she bought, for which her sister reimbursed her; dusting furniture; and hanging laundry in the backyard. Id. at 405. She had done floral arrangements for her sister previously. Ibid. While entering the backyard to retrieve the laundry because it looked as though it would rain, the plaintiff tripped at the edge of the patio and fell down the steps to the yard. Ibid. She had been at her sister's home for about two hours. Id. at 406.

The trial judge charged the jury on the duty of care owed to an invitee and denied the defendant's request for a charge on the duty owed to social guests. Ibid. We reviewed the duty owed to invitees and the duty owed to guests. Id. at 406-07. We cited Berger, supra, 30 N.J. at 96, for the proposition "that a person who is on the homeowner's premises to confer some bene fit upon the invitor is regarded as an invitee." Benedict, supra, 109 N.J. Super. at 407. Unlike the plaintiff in Pearl stein, supra, 52 N.J. Super. at 458, the plaintiff in Benedict was not invited for a social purpose at all and was only per forming a series of chores for the defendants while they were not at home. Benedict, supra, 109 N.J. Super. at 407-08. Thus, we affirmed the trial court's finding that the plaintiff was a business invitee. Id. at 408.

The Supreme Court affirmed on the opinion below over Jus tice Hall's dissent. Benedict, supra, 57 N.J. at 219. Justice Hall urged that the plaintiff was a licensee barred from recov ery by reason of her full knowledge of the condition of the property. Ibid. (Hall, J., dissenting). He applied the Restatement (Second) of Torts 332 (1965) and the comments to that section to conclude that the plaintiff was not a business visitor because she was not "'invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.'" Id. at 222-23 (quot ing Restatement (Second) of Torts 332 (1965)). He asserted that New Jersey has always followed this classification. Id. at 223 (citing Berger, supra, 30 N.J. 89, and Pearlstein, supra, 52 N.J. Super. 450). Thus, he found it impossible to "conceive of Mrs. Benedict as an invitee in this legal sense when she went to her sister's home, even by request, only to perform some gratuitous household chores." Ibid.

In Daggett, the plaintiff visited the defendant's home for the purpose of paying for tickets related to a fashion show sponsored by the defendant's wife's social club. Daggett v. DiTrani, 194 N.J. Super. 185, 187 (App. Div. 1984). The plain tiff was not a member of the club. Ibid. After delivering the payment, the plaintiff slipped in the defendant's driveway and was injured. Ibid. We reversed the trial judge, who concluded the plaintiff was a social guest, and held that the plaintiff was a business invitee. Id. at 189. The plaintiff had never visited the defendant's home before. Id. at 190. Moreover, the purchase of the tickets was more closely related to "business" than it was to conforming to social niceties since the plaintiff went to defendant's home only to confer a benefit on the club and upon defendant's wife, a member of that club. Ibid. As a result, we concluded that she was a business invitee. Id. at 189-90.

Both Benedict and Daggett were decided prior to the Supreme Court's ruling in Hopkins, which observed that the "social guest or licensee" classification includes individuals "whose purposes for being on the land may be personal as well as for the owner's benefit." Hopkins, supra, 132 N.J. at 433.

The Hopkins Court opined that "[t]he traditional common law doctrine governing premises liability is no exception" to the evolution over time of public policy and social values. Id. at 435. The historical classifications of visitors on land had been undergoing gradual change in favor "of a general tort obli gation to exercise reasonable care against foreseeable harm to others." Ibid. (internal quotations and citations omitted). The Court noted that fourteen states had abandoned "the various categories of entrants," as had England. Id. at 436-37. How ever, the Court did not abrogate those categories in New Jersey, limiting its decision to the particular facts before it with respect to the tort liability of a real estate broker hosting an open house to members of the public attending the open house. Id. at 437-38.

We have recognized that a determination of the status of one entering another's property should be based on fairness, taking into account the totality of the circumstances. Campbell v. Hastings, 348 N.J. Super. 264, 269 (App. Div. 2002). Hopkins established four criteria that a court must examine: "[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 (citing Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962)); see also Campbell, supra, 348 N.J. Super. at 269; Ocasio v. Amtrak, 299 N.J. Super. 139, 149-50 (App. Div. 1997).

Considering the first Hopkins factor, the relationship of the parties here was that of neighbors who, from time to time, helped each other with tasks, without any expectation of compen sation. Second, the nature of the attendant risk was the slope of the property, the ice on the driveway, and several inches of snow on the lawn. The nature of the risk was not peculiar to defendants' property and existed throughout the neighborhood. The risk was merely that which everyone in the northeast encoun ters during every winter snow and ice. With respect to the third Hopkins factor, plaintiff had visited defendants' prop erty on several prior occasions, accessing their home from the drive way. She knew of the recent snowstorm; knew of the slope from the street down to defendants' home; went to defendants' prop erty during daylight hours; and observed the ice on the driveway and the snow on the lawn, giving her an opportunity and ability to exercise due care, either by driving down the drive way, by returning another day, or by leaving the frozen food at the top of defendants' driveway. Instead, she encountered the known risk, which was open and obvious.

Plaintiff claims that, although she had never done so before on defendants' property, the route she took over the lawn was "a common pathway of travel in their neighborhood." She urges that John was aware that other residents in the neighbor hood would traverse snow-covered lawns to access their own and their neighbors' homes and that her conduct was thus foresee able. Certainly, defendants had an opportunity and ability to exer cise due care with respect to the condition of the driveway. However, plaintiff did not fall in the driveway but on the snow-covered lawn. Mere knowledge that some neighbors traversed snow-covered lawns is insufficient to raise a duty on the part of defendants to shovel snow from their lawn, much less to apply salt to the lawn. The first three Hopkins factors clearly support treating plaintiff as a social guest.

As to the fourth factor, the public has no interest in treat ing plaintiff as a business invitee. For hundreds of years in this country, and probably in all countries, neighbors have helped each other, whether in raising barns, building play grounds, or performing minor tasks. These are social activi ties, not business relationships, and there is no public interest in changing the nature of that relationship.

Thus, the application of governing case law to the circum stances of this case supports the trial judge's conclusion that plaintiff was a social guest, not a business invitee. Defen dants had no duty to make a reasonable inspection to discover latent or defective conditions and no duty to make the premises safe. See Hopkins, supra, 132 N.J. at 434 (finding a land owner must only warn a social guest of known, dangerous conditions of which the guest is not aware).

A homeowner is not required to make the land safer than he or she would make it for private use. Berger, supra, 30 N.J. at 97. Here, it is undisputed that John cleared a path on the driveway for his own use. Plaintiff chose not to use it. In any event, if a social guest is either aware of the condition on the land or can observe it by "reasonable use of his faculties," which plaintiff did here, the homeowner has no duty to warn and is not liable for injuries sustained by the guest. Id. at 99.

The common-law classifications of entrants onto property have not yet been abandoned by our Supreme Court. In Tighe v. Peterson, 175 N.J. 240, 241-42 (2002), the New Jersey Supreme Court affirmed the grant of summary judgment to the defendant landowners when a social guest dove into the shallow end of a swimming pool. The Court applied a fact-sensitive analysis and held that the host did not have to warn the guest because the guest knew the locations of the pool sections and knew not to dive into a pool's shallow end. Ibid. In addition, there was no evidence that the defendants encouraged the use of the pool in a dangerous fashion. Id. at 242.

Finally, we note that although the judge addressed the cau sation issue first, he reached the proper result, and thus, there was no error. See Govito v. W. Jersey Health Sys., Inc., 332 N.J. Super. 293, 321 (App. Div. 2000) (a judgment will be affirmed if it is correct even if the lower court "provided the wrong reasons for the decision"). Furthermore, while plaintiff complains that the court failed to reference specific citations to land-entrant status and causation case law, this argument is moot since the judge reached the proper result. See Luppino v. Mizrahi, 326 N.J. Super. 182, 185 (App. Div. 1999) (holding that "appeals are taken from orders, not opinions," and that if a lower court's order is correct under different legal principles than the ones relied upon, it should be affirmed).

1 Where necessary to distinguish between the defendants, we will refer to them by their first names.

2 The trial court referred to the date of the accident as February 6, 2007. However, the complaint and deposition testimony list the date as February 8, 2007.

3 The judge also based his decision on superseding cause, but we need not address that issue because we conclude defendants only owed plaintiff the duty of care for a social guest and did not breach that duty.

4 Rule 1:7-4 requires a judge to state conclusions of law on any dispositive ruling, which necessarily requires citation to statutes, where applicable, and case law. The judge failed to discharge this duty.