LAURA SHAKNOVICH v. JOSEPH FISHMAN et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1017-04T51017-04T5

LAURA SHAKNOVICH,

Plaintiff-Appellant,

v.

JOSEPH FISHMAN and MARINA

FISHMAN,

Defendants-Respondents.

_________________________________

 

Submitted November 7, 2005 - Decided

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. ESX-L-4920-02.

Isabella Mayzel, attorney for appellant.

Kramkowski, Lynes, Fabricant & Bressler, attorneys

for respondents (Margaret Mckenna, of counsel and on

the brief).

PER CURIAM

Plaintiff, Laura Shaknovich, appeals from a summary judgment dismissing her personal injury negligence complaint. We reverse and remand, finding a genuine issue of material fact as to whether defendant-homeowners' conduct breached the standard of care.

Viewing the evidence most favorably to plaintiff, R.

4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts are as follows. On March 20, 2001, plaintiff, sixty-two years old at the time, visited the home of her daughter and son-in-law, defendants Marina and Joseph Fishman, to bring flowers to her daughter for her birthday. As plaintiff was descending the basement stairs to retrieve a vase, she tripped and fell mid-way down, at approximately the fourth or fifth stair, injuring herself.

The stairway leads to a finished basement in the ranch-style house. The stairs are wooden and have a clear vinyl runner that covers the normal travel portion of the treads. The runner has a nubby surface. Although she has used the stairway before without incident and the light was turned on at the time, plaintiff was in no condition immediately after the fall to observe what caused her to trip. Sometime later, however, she examined the stairs, and when she ran her hand along the middle steps where she had fallen, plaintiff observed that the vinyl runner was loose. Her expert corroborates that the vinyl runner was not properly attached, and further opines that the configuration of the stair treads created a tripping hazard. Plaintiff has attributed her fall to the loose runner covering the stairs.

Despite this evidence, the motion judge granted summary judgment in favor of defendants dismissing plaintiff's negligence complaint, reasoning:

So that on March 20th, 2001, plaintiff was no more than a social guest. And, as such, the defendant's only duty was to -- or basic duty was to warn of known dangers and hazards. And there is nothing to indicate that assuming that there was the loose vinyl on the stairs and that that was what caused her to trip and fall, that that was in any way something known to the defendants.

So that I cannot find that they violated a duty to the plaintiff and were, therefore, negligent.

On appeal, plaintiff contends that the facts are sufficiently contested as to whether the standard of care owed her has been breached to preclude summary judgment. We agree.

Under the common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest, or business invitee. Parks v. Rogers, 176 N.J. 491, 497 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34 (1993); Snyder v. I. Jay Realty Co., 30 N.J. 303, 311-12 (1959). Here, the motion judge considered plaintiff to be defendants' social guest. According her that status under the common law, defendants should have warned plaintiff of any dangerous condition known to them and unknown to plaintiff. Hopkins, supra, 132 N.J. at 434; Campbell v. Hastings, 348 N.J. Super. 264, 267 (App. Div. 2002); Hanna v. Stone, 329 N.J. Super. 385, 389 (App. Div. 2000). In other words, "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." Parks, supra, 176 N.J. at 494; Sussman v. Mermer, 373 N.J. Super. 501, 505 (App. Div. 2004). Of course, "[i]f 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. Berger v. Shapiro, 30 N.J. 89, 99 (1959).

The common law on premises liability in New Jersey, however, has undergone transition toward "a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others." Hopkins, supra, 132 N.J. at 435 (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 277 (1982)); Campbell, supra, 348 N.J. Super. at 268. Although the common law premises liability rules continue "to provide guidance in determining whether a duty of reasonable care should be imposed in particular circumstances," Ocasio v. Amtrak, 299 N.J. Super. 139, 149 (App. Div. 1997), the task now is to consider "'all of the surrounding circumstances'" to determine whether it is "'fair and just'" to impose upon the landowner a duty of reasonable care commensurate with the risk of harm. Brett v. Great Am. Rec., Inc., 144 N.J. 479, 509 (1996) (quoting Hopkins, supra, 132 N.J. at 438).

Measured by this standard, we conclude sufficient evidence was presented to raise a jury question regarding defendants' breach of the duty owed plaintiff. At the very least, defendants owed plaintiff the duty to warn of dangerous conditions of which defendants were, or should have been, aware and of which plaintiff was unaware. Indisputably, despite her prior occasional use of the stairway, plaintiff was unaware of the loose vinyl runner. As to whether defendants themselves were aware of the dangerous condition in their own home, the evidence allows, at the very least, the inference that they should have known about the tripping hazard. The defect was neither hidden nor latent, and the stairway was used as a common area leading to a finished basement. A vinyl runner not properly attached to the stairs is both visible and palpable. Although perhaps not so obvious to occasional visitors who, like plaintiff, would have no reason to know of the defect, there is at least a material issue of fact whether defendants, as homeowners who presumably used the stairway much more frequently, should have known of the dangerous condition.

With a genuine issue of material fact in dispute, plaintiff was entitled to submit her case to a jury. Accordingly, the summary judgment in favor of defendants is reversed, and the matter is remanded for proceedings consistent with this opinion.

 
Reversed and remanded.

(continued)

(continued)

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A-1017-04T5

December 2, 2005