EDWARD CEDENO et al. v. IVAN AGUIRRE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1233-05T21233-05T2

EDWARD CEDENO and LISA CEDENO,

Plaintiffs-Appellants,

vs.

IVAN AGUIRRE and MIRIAM CONTRERAS,

Defendants-Respondents.

___________________________________

 
Telephonically Argued October 10, 2006 - Decided December 6, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3221-04.

John F. Gaffney argued the cause for appellants (Chase, Kurshan, Herzfeld & Rubin, attorneys; Mr. Gaffney, on the brief).

E. Michael Garrett, Jr., argued the cause for respondents (Barrett Lazar, attorneys; Mr. Garrett, on the brief).

PER CURIAM

Plaintiff, Edward Cedeno, appeals from a summary judgment order dismissing his complaint in this negligence action. Plaintiff alleges that defendants, Ivan Aguirre and Miriam Contreras, breached a duty of care owed to him as a social guest at their home. Specifically, plaintiff alleges defendants caused him to sustain serious injuries when he fell over a plastic yellow handlebar as he attempted to retrieve a basketball. The motion judge, citing Parks v. Rogers, 176 N.J. 491 (2003), Tighe v. Peterson, 175 N.J. 240 (2002), and Sussman v. Mermer, 373 N.J. Super. 501 (App. Div. 2004), granted summary judgment, finding no breach.

Plaintiff claims the motion judge erred in concluding that defendants breached no duty of care owed to him. Plaintiff also claims there were factual disputes surrounding defendants' role in creating the dangerous condition. We conclude that while 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, the proofs presented here, when viewed most favorably towards plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), support the unavoidable conclusion that defendants, as a matter of law, breached no duty owed to plaintiff. We therefore affirm substantially for the reasons expressed in the thorough and well-reasoned oral opinion of Judge Messano delivered on September 27, 2005. We add only the following.

In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), the Court acknowledged that the common law on premises liability in New Jersey has undergone a transition toward "a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others." Id. at 435-36 (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 277 (1982)); see also, Campbell v. Hastings, 348 N.J. Super. 264, 268 (App. Div. 2002). Under this broadened approach, albeit with continued guidance from common-law premises liability rules, Ocasio v. Amtrak, 299 N.J. Super. 139, 149 (App. Div. 1997), our objective is to consider all 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. Recreation, Inc., 144 N.J. 479, 509 (1996). To that end, we consider: (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; Ocasio, supra, 299 N.J. Super. at 149-50; Campbell, supra, 348 N.J. Super. at 269.

Measured against this standard, the record reveals that plaintiff and defendant Aguirre had known each other for twenty years, having grown up together. Plaintiff was visiting Aguirre and his wife, who he had also known for a period of time, as part of an Easter celebration. Approximately six other adults were in attendance, along with children. Just before playing basketball, plaintiff observed six to seven children running around in the cemented backyard. He saw Aguirre remove toys, including bicycles, bats and balls, for the children from the rear shed. He also heard Aguirre's brother tell him that he was taking out too many toys and someone could get hurt. In the face of these obvious conditions, plaintiff chose to proceed to participate in the basketball game. Under these circumstances, we perceive no basis, whether premised upon basic fairness or notions of public policy, to impose liability upon defendants for any injury plaintiff sustained. Monaco v. Hartz Mountain Corp., 178 N.J. 401, 418 (2004).

 
Affirmed.

Plaintiff's wife, Lisa Cedeno, was a named plaintiff on her per quod claim. For ease of reference, we will refer to Edward Cedeno as plaintiff in the singular.

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A-1233-05T2

December 6, 2006