ROSE ANDIORIO v. STEVEN ANDIORIO

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4063-11T2

ROSE ANDIORIO and CARMINE ANDIORIO,

Plaintiffs-Appellants,

v.

STEVEN ANDIORIO, JOANNE ANDIORIO, and NEW JERSEY MANUFACTURERS INSURANCE COMPANY,

Defendants-Respondents.

________________________________________________________________

February 5, 2013

Submitted January 14, 2013 - Decided

Onappeal fromthe SuperiorCourt ofNew

Jersey, Law Division, Passaic County,

Docket No. L-1547-11.

Before Judges Parrillo and Fasciale.

Law Offices of Serafina and Serafina, attorneys for appellants (Louis J.

Serafini, of counsel and on the brief).

Norton, Sheehy & Higgins, attorneys for respondents (Kelly P. Corrubia, on the brief).

PER CURIAM

Plaintiff Rose Andiorio appeals from the March 2, 2012 summary judgment dismissal of her slip and fall negligence complaint against defendants Steven and Joanne Andiorio (husband and wife) and their insurer, New Jersey Manufacturers Insurance Company.1 We affirm.

The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. At around 8:00 a.m. on July 1, 2009, plaintiff and her husband arrived at the Wayne residence of defendants (their son and daughter-in-law) to pick up their grandsons to take them to the Bronx Zoo. Defendants were not home at the time. Upon arrival, plaintiff and her husband opened the garage using an automatic garage door opener they had used on prior occasions. When their grandsons heard the noise, they came outside and got into the car to leave.

Plaintiff then decided to get out of the car and fill the family dog's water bowl. Plaintiff picked up the partially filled water bowl in the garage and entered the house through the mud room, intending to fill the bowl from a utility sink in the adjacent laundry room. She was the only person in the house at the time. As she entered the laundry room through the open doorway, plaintiff tripped over the hose of a canister vacuum cleaner that was left at the doorway in the laundry room, injuring her left shoulder.

By her own admission, plaintiff did not see the vacuum cleaner because she was looking at the large water bowl she was carrying in front of her with both hands. Plaintiff had been to defendants' residence numerous times and was familiar with the layout of the home. Although she had observed the vacuum cleaner in the same area where she tripped "on occasion," it was, she said, usually "someplace else," such as the mud closet. According to her son, the vacuum cleaner had been stored in various locations throughout the house over the years:

Well, it rotated around the house in different places over the years, under the dining room table, against this wall, that wall, and this floor and that floor; and eventually, it had to get put someplace. And it went to the least used part of the house, which was that back door [where the incident occurred]. But even there, it's no good.

Plaintiff sued defendants in negligence alleging that they breached their duty to warn her of a dangerous condition in their home by failing to inform her that the vacuum cleaner was stored at the doorway to the laundry room. At the close of discovery, defendants moved for summary judgment. In granting the relief, the motion judge found that plaintiff was a social guest at the time she entered defendants' home and as such, defendants owed her a limited duty to warn of dangerous conditions of which the host has actual knowledge and of which the guest is unaware. In concluding that defendants did not breach this duty, the judge reasoned:

Plaintiff knew the layout of the house and knew that the vacuum was stored in the mud room or the laundry room at times. Defendants did not know that the vacuum was in that spot at the time, nor could they have anticipated that it had fallen and created a dangerous condition of which they should have warned their social guest.

Defendant testified that his children could have put the vacuum there, and could have put it there in a way which would have caused the hose to fall. Thus, defendant was not aware of the condition and could not have anticipated that it would fall, and that plaintiff would not see it and trip on it.

Additionally, . . . the defendants could not even anticipate that on that occasion the plaintiff would be in the house, in general, or in the laundry room in particular.

Additionally, the condition was open and obvious. Plaintiff could have easily discovered it if only she had looked down on the floor. Defendant had no duty to warn plaintiff as not only were they not aware of the condition, they also did not have a duty to inspect, and it was obvious, with the use of reasonable fac[u]lties. Plaintiff did not use those fac[u]lties and slipped and fell on the hose.

. . . .

Now, clearly, in this particular case, the plaintiff easily could have observed and avoided this big vacuum hose lying across the floor. And she evidently did not do so. The fact that she was carrying a water bowl does not excuse the plaintiff from using reasonable fac[u]lties to observe a condition which could be of danger to her.

On appeal, plaintiff argues the court erred in granting defendants summary judgment. We disagree.

We review a trial court's grant of summary judgment de novo, applying the same standard as the trial court. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The court first decides whether there was a genuine issue of material fact. If there was not, the court then decides whether the trial court's ruling on the law was correct. Walker v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).

There being is no genuine issue of material fact in this case, we then proceed to determine whether defendants were entitled to the summary judgment dismissal of plaintiff's complaint as a matter of law. Indeed, the question of whether a duty exists is a matter of law to be decided by the court. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). The common law informs the duty of a landowner to third parties that come onto his property. Parks v. Rogers, 176 N.J. 491, 497 (2003). The scope of the duty has traditionally depended on the land entrant's status as a business invitee, social guest, or trespasser. Ibid.

Here, all parties agree as to plaintiff's status as a social guest. On this score, a landowner does not need to inspect his property to discover latent dangerous conditions or provide greater safety for a social guest than he would for himself. Id. at 497-98. But he must correct or disclose to the social guest any dangerous condition of which he is aware, providing the guest with the same level of knowledge of such conditions. Id. at 498. Once it is established that the landowner was aware of a dangerous condition, the question becomes whether a reasonable person would have recognized the danger that condition posed. Ibid. However, 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." Ibid. (quoting Berger v. Shapiro, 30 N.J. 89, 99 (1959)).

While New Jersey courts continue to use the traditional classification of land entrants to inform their analyses of whether a landowner breached a duty of care, there has been an "evolution toward a more resilient approach to premises liability" that applies general tort principles. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 436 (1993). Courts will consider 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." Id. at 439 (citing Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583 (1962)). This inquiry involves weighing and balancing 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. Ibid.; Campbell v. Hastings, 348 N.J. Super. 264, 269 (App. Div. 2002).

As noted, the duty to warn does not extend to dangerous conditions of which the property owner is unaware. In Quinlan v. Quinlan, 76 N.J. Super. 11 (App. Div. 1962), the court found that the defendant did not breach any duty to his daughter-in-law, who slipped and fell on a patch of ice in the defendant's driveway near a downspout. Id. at 12-14. There was no testimony that the defendant had knowledge of the ice or had previously seen ice near the outlet of the spout, though he was aware that it was raining and sleeting prior to the incident. Id. at 15. Moreover, he did not know that his son and daughter-in-law were coming to his house that night. Id. at 19. And the inference that the defendants must have realized that certain weather conditions would eventually result in a dangerous patch of ice forming near the downspout was not sufficient to impose a duty. Id. at 18.

Nor does the duty to warn extend to dangerous conditions of which the social guest is aware or by reasonable use of her faculties should be aware. In Endre v. Arnold, 300 N.J. Super. 136, 139 (App. Div.), certif. denied, 150 N.J. 27 (1997), the decedent's familiarity with the premises precluded the plaintiff's recovery. The defendant found the decedent lying at the foot of the stairway in her home after he had spent the night drinking there. Id. at 140. He sustained a serious head injury and was taken to a hospital for surgery, after which he died. Id. at 141. It was not clear how the decedent had ended up at the bottom of the stairs, but the plaintiff, who sued on behalf of the decedent's estate, alleged several defects that could have caused his fall, including low headroom above the stairway, the riser depth of the steps, inadequate lighting, carpeting that hid defects, and a loose handrail. Id. at 141-43. Nevertheless, we upheld summary judgment in favor of the defendant, stating that "no reasonable fact finder could conclude that the decedent was unaware of those conditions." Id. at 143. The conditions, which plaintiff conceded were "obvious," had existed as long as the defendant had owned the house, and the decedent "continuously frequented defendant's home, often staying overnight" and using the stairway. Ibid.

In Tighe v. Peterson, 175 N.J. 240 (2002), the plaintiff was injured when he dove into the shallow end of the defendants' pool, which lacked depth markings. The plaintiff, who had visited the defendants' home and used their pool approximately twenty times before the incident, admitted that he was aware of where the shallow and deep end were situated, and that he knew not to dive in the shallow part. Id. at 241. The Court found that the defendants had no duty to warn the plaintiff of the configuration of the pool's depth, stating that it "defies notions of reasonableness to regard plaintiff as being unaware of the slope of the pool bottom, or to conclude he could not reasonably have detected it from his use of the pool that day and on the many occasions before." Id. at 242.

Longo v. Aprile, 374 N.J. Super. 469 (App. Div. 2005), is also illustrative of an obvious hazard about which the landowners had no duty to warn their guest. The plaintiff was a neighbor of the defendants who was power-washing their house when he fell off the roof. Id. at 471. We concluded that "the dangers inherent with working alone on a roof, eight feet above the ground, together with those associated with the configuration of the roof, including its narrow corner and drip ledge, were self-evident." Id. at 474.

In stark contrast, the Court reversed summary judgment for the defendants in Parks, supra, 176 N.J. at 491. There, the plaintiff fell while descending the stairs from the defendants' deck in the dark and holding onto a handrail that she did not realize ended at the second-to-last step. Id. at 495. Unlike in cases previously discussed, it was the plaintiff's first time visiting the defendants' home. Id. at 502. She had gone up the stairs earlier in the night, also in the dark, but did not notice that the railing failed to extend to the bottom of the stairway. Id. at 495. The Court held that a jury could find that the defendants knew of the inadequate length of the handrail and that this "defective condition posed an unreasonable risk of injury to a social guest unfamiliar with the premises," placing a duty on defendants to provide lighting or a warning to the plaintiff. Id. at 502. Although the plaintiff obviously was aware of the darkness, the Court stated that this only made her more dependent on using the handrail to descend the stairs safely. Id. at 501.

In Sussman v. Mermer, 373 N.J. Super. 501 (App. Div. 2004), we encountered similar facts. The plaintiff injured himself as he left the defendants' home through the front door, descending one step to an exterior porch, and then falling as he descended the second step leading to a cement pathway. Id. at 503. It was dark outside at the time and the front porch area was not illuminated. Ibid. We reversed summary judgment for the defendant in part because there was a genuine issue of material fact as to whether plaintiff had ever used the front porch steps during previous visits to the defendants' home and thus was aware of the dangerous condition. Id. at 507. But we also concluded that even if the plaintiff had previously used the steps, "given the unevenness in riser heights and the lack of a handrail, a trier of fact could reasonably find that they presented a foreseeable and unreasonable risk of harm when unilluminated." Ibid. We added that "the modest effort that would satisfy reasonable care to guard against dangers caused by darkness" made imposition of such a duty on the defendants neither unjust nor unfair. Ibid.; see also Campbell, supra, 348 N.J. Super. at 266, 269-72 (reversing summary judgment for defendant where plaintiff, who had never visited defendant's home before, fell into a sunken foyer).

Unlike the social guests in Parks, supra, and Sussman, supra, it is undisputed in this case that plaintiff was familiar with defendants' home and its layout, and knew that the vacuum cleaner was routinely left in different areas of the home, even, on occasion, in the very same area where she slipped and fell. But even if plaintiff were unaware of its location on the day in question, the alleged dangerous condition -- the tripping hazard presented by the vacuum hose lying across the floor -- was open and obvious and plaintiff could have observed it through a reasonable use of her faculties.

Moreover, defendants lacked actual knowledge of the so-called dangerous condition. While plaintiff's son testified that he was aware of the possibility of the handle or hose of the vacuum falling and that it had happened before, he did not know that it had happened on the day in question. The mere possibility of this occurrence is not sufficient, in our view, to find a breach of the duty owed by defendants to their social guest. And while defendants knew that plaintiff was coming to the house to pick up their children that day, and perhaps should have anticipated that she would enter the home, they did not know that she would do so while carrying an object that obstructed her view.

Aside from there being no breach of duty under traditional notions of premises liability, we also conclude that fairness considerations counsel against imposing a duty to warn on defendants in this matter. Defendants were not even in the house at the time of the incident. While they knew plaintiff was coming to their house that day, and would possibly enter it, they could not reasonably foresee that she would be refilling the water bowl for the dog, and further, would be carrying the bowl in such a way that would blind her to an otherwise open and obvious hazard of which they also were not aware. The dangerous condition was reasonably discoverable and was obstructed only by the voluntary actions of plaintiff herself. We do not consider obligating defendants to guard against this type of unforeseeable harm, which plaintiff was well within in her power to avoid, would satisfy "an abiding sense of basic fairness."

A

1 Plaintiff's husband, Carmine Andiorio, sued per quod.