GARY HOWARD v. MILTON HOLMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6452-08T36452-08T3

GARY HOWARD and CHERIE

HOWARD, his wife,

Plaintiffs-Appellants,

v.

MILTON HOLMES,

Defendant-Respondent.

__________________________________

 

Argued: March 17, 2010 - Decided:

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5789-07.

Randall J. Peach argued the cause for appellants (Law Offices of Roy D. Curnow, attorneys; Mr. Curnow, of counsel and on the brief; Mr. Peach, on the brief).

Robert J. Boland argued the cause for respondent (Law Offices of William P. LaRosa, attorneys; Mr. Boland, on the brief).

PER CURIAM

Plaintiff Gary Howard appeals the summary judgment dismissal of his personal injury negligence complaint seeking damages for injuries sustained as he stepped off a ladder while attempting to assist his neighbor in removing a chainsaw that had become lodged in a tree on his neighbor's property. Plaintiff alleged that defendant, Milton Holmes, created a hazardous condition, necessitating an emergent response, which led to the occurrence of the injury. The court found that a hazardous condition was created by defendant but the lodging of the chainsaw was not the proximate cause of the accident. The court further found this was not an emergent situation and the rescue doctrine was not applicable. We affirm.

As this is an appeal of a summary judgment motion, we must decide "'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.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 9l L. Ed.2d 202, 214 (l986)). In our review of the record, we view the evidence, as we must, in a light most favorable to plaintiff, the non-moving party. Id. at 540.

The evidence, as presented to the motion judge, is not complex, and is, for the most part, stipulated. On August 27, 2007, the eighty-one-year-old defendant was using a chainsaw to attempt to remove a branch from a tree located on his property. The tree stood near the entrance to a shed in defendant's backyard. The chainsaw became wedged in the limb of the tree approximately fifteen to twenty feet above the ground in front of the shed such that defendant was unable to remove it. It was approximately 8:00 p.m. when this occurred, and defendant walked next door to plaintiff's residence to ask for help.

At the time, plaintiff was in his garage, preparing to work on his wife's car. Plaintiff testified at his deposition that defendant explained that his chainsaw was stuck in the tree and he could not get it out and asked him, "Howard, could you give me a hand? Could you help me? Could you see if you could do something?" The parties had known each other for over seventeen years.

The parties walked over to defendant's property. Defendant placed a ladder against the shed to provide plaintiff access to the tree limb and held the ladder for him. Plaintiff testified that as he climbed up the ladder he "had to maneuver in a very awkward position so as to get on to the shed." As he stepped off of the ladder with his left foot, placing it on the roof of the shed, transferring his weight and leaving his right foot on the ladder, plaintiff heard a "pop" and a "snap," apparently tearing the tendon in his right ankle necessitating surgery.

Plaintiff alleged he was injured when he twisted his ankle. He alleged no defect in defendant's ladder, shed or property. Nor did he claim defendant was negligent or reckless when he placed or held the ladder. The gist of plaintiff's argument in opposition to defendant's summary judgment motion was that a material issue of fact existed, considering the full context of events, as to whether defendant was negligent in creating a hazardous condition by using a chainsaw to prune a tree at his advanced age at 8:00 p.m., which required an emergency response on plaintiff's part when the chainsaw became lodged in the tree. Plaintiff related that he was concerned for defendant's safety, as well as the safety of members of his family and any children playing in the area, if the chainsaw became dislodged and fell to the ground, particularly given the attraction of the shed that served as a makeshift "chapel." Therefore, plaintiff contended a reasonable juror could easily find he had no choice but to remove the chainsaw as quickly as possible since it was dusk and rapidly getting dark. There was no testimony regarding the amount of foot traffic the "chapel" attracted and only defendant and his wife lived on the property.

"A prerequisite to recovery on a negligence theory is, of course, a duty owed by a defendant to a plaintiff." Arvanitis v. Hios, 307 N.J. Super. 577, 581 (App. Div. l998). The existence of a duty is a legal issue to be determined by a judge and, ultimately, is a question of fairness and policy. Snyder v. Am. Ass'n of Blood Banks, l 44 N.J. 269, 292 (l996); Arvanitis, supra, 307 N.J. Super. at 581.

Under the common law of premises liability, the existence and extent of the duty has been measured by the right of that person to be on the property, with the status of the person determined to be a business invitee, licensee or trespasser. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). "A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit." Ibid. According plaintiff that status under the common law, defendant should have warned plaintiff of any dangerous condition known to him and unknown to plaintiff. Id. at 434. See also Parks v. Rogers, 176 N.J. 491, 494 (2003) (holding that "a homeowner has a duty to warn the unwary social guest of a condition of the premises that the homeowner knows or has reason to know creates an unreasonable risk of injury"); Berger v. Shapiro, 30 N.J. 89, 99 (1959) (holding that if "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).

Even if plaintiff were considered an invitee because he had been invited to defendant's property to render a requested service, though without a fee, see Benedict v. Podwats, 109 N.J. Super. 402, 408 (App. Div.), aff'd, 57 N.J. 219 (1970), the result would be the same. The duty of care owed by a landowner to an invitee "is to use reasonable care to make the premises safe, and this includes the duty to make a reasonable inspection to discover defective conditions." Id. at 407 (quoting Handleman v. Cox, 39 N.J. 95, 111 (1963)).

Plaintiff explained in depositions that he was "experienced going up ladders," inspected the ladder defendant had placed against the side of the chapel and concluded it was safe before ascending it. Although plaintiff felt the placement of the ladder was not ideal and noted "there's always a danger when you're dealing with a ladder," plaintiff decided to climb the ladder after asking defendant to hold it steady because, at the time, he did not feel it was "excessively dangerous." Plaintiff was not injured by a latent defect on the property. Rather, he was injured when he stepped off the ladder and twisted his ankle. As the location of the ladder in relation to the shed and the condition of the ladder and the roof of the shed are not in question, the only hazard defendant would have been potentially obligated to warn plaintiff about are the general hazards that stepping off ladders typically involve. It is undisputed, however, that plaintiff was well aware of the potential risk of harm, either through his past use of ladders or the reasonable use of his faculties. Berger, supra, 30 N.J. at 99.

As plaintiff urges, we also view the circumstances in light of the "broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others." Hopkins, supra, 132 N.J. at 435-36 (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 277 (1982)). We analyze whether the imposition of such a duty "satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy," weighing and balancing 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. Reyes v. Egner, ___ N.J. ___ (2009) (slip op. at 6) (citing Hopkins, supra, 132 N.J. at 439).

Measured by this standard, we conclude that even if the chainsaw in the tree limb were considered a hazardous condition for summary judgment purposes, there was not sufficient foreseeable harm present to raise a jury question regarding defendant's breach of the obligation to exercise reasonable care. We emphasize that this was not a situation where plaintiff was injured by the chainsaw dislodging from the tree limb. Rather, he was aware of the nature of the attendant risk of stepping off a ladder and had the opportunity and ability to exercise care when he stepped onto the roof. Moreover, although we have no doubt plaintiff acted with the best intentions in seeking to assist his neighbor, he was not forced to climb the ladder and navigate onto the roof of the shed, but acted on his own volition.

We are not persuaded that plaintiff's claims are supported by the rescue doctrine. See Saltsman v. Corazo, 317 N.J. Super. 237, 247 (App. Div. l998) (patron sued recreational complex's manager for injuries while attempting to break up a parking lot brawl between manager and another patron); Blackburn v. Broad St. Baptist Church, 305 N.J. Super. 541, 545-46 (App. Div. l997) (mother sued neighbor for injuries sustained in slip and fall while attempting to remove her three-year-old child from a puddle-like pond that had accumulated on neighbor's property); Tornatore v. Selective Ins. Co. of Am., 302 N.J. Super. 244, 252 (App. Div. l997) (injured motorist entitled to uninsured motorist benefits after trying to help passengers on a bus involved in an accident after a passenger yelled "fire"); Burns v. Mkt. Transition Facility, 281 N.J. Super. 304, 310 (App. Div. l995) (injured motorist entitled to PIP benefits after rendering aid to driver trapped in a car following collision); Eyrich v. Dam, 193 N.J. Super. 244, 256 (App. Div.), certif. denied, 97 N.J. 583 (1984) (plaintiff had a viable cause of action for emotional distress suffered in attempted rescue of neighbor's child from fatal attack by a leopard at the circus).

In this case, immediacy is lacking. As the trial judge noted, a chainsaw stuck in a tree is not a "fight situation," a "drowning situation" or an "automobile accident where somebody's life is in some sort of imminent danger." Defendant's request for help was not the "cry of distress" present in the cases where the courts have applied the rescue doctrine. It is clear plaintiff responded to defendant's request to dislodge the saw because he "wanted to help" his neighbor. The chainsaw was turned off and was lodged in a tree in defendant's backyard. Defendant and his wife lived alone so there was no question of children playing in the yard. Nor did the fact that it was beginning to get dark create an urgent situation that compelled plaintiff to respond to his neighbor's request in order to avoid peril. To the contrary, that created less of a likelihood of imminent danger as no one would be in defendant's backyard and defendant could call a professional the next morning to remove the chainsaw from the tree.

 
Affirmed.

Plaintiff and his wife filed suit and are appellants; however, as plaintiff's wife asserted a per quod claim, for ease of reference we refer only to plaintiff, Gary Howard, in this opinion.

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10

A-6452-08T3

April 16, 2010