RENZO FAUSTINO FERRERAS et al. v. NORTH HALEDON FIRE DEPARTMENT #1, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3385-05T33385-05T3

RENZO FAUSTINO FERRERAS and

MADELINE FERRERAS, his wife,

Plaintiffs-Appellants,

v.

NORTH HALEDON FIRE DEPARTMENT #1,

BOROUGH OF NORTH HALEDON, OMAR

VASQUEZ,

Defendants-Respondents.

____________________________________

 

Argued November 8, 2006 - Decided December 5, 2006-

Before Judges Weissbard, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, PAS-L-1167-04.

Franco Mazzei argued the cause for appellants

(Weiner, Ryan & Mazzei, attorneys; Mr. Mazzei,

on the brief).

Kevin F. Colquhoun argued the cause for

respondents North Haledon Fire Department #1 and

Borough of North Haledon (Colquhoun & Colquhoun,

attorneys; Kevin F. Colquhoun, on the brief).

Mark C. DeBlis argued the cause for respondent

Omar Vasquez (Jose B. Moreira, attorney; Mr.

Moreira, on the brief).

PER CURIAM

Plaintiffs Renzo Faustino Ferreras and Madeline Ferreras appeal from a summary judgment dismissing their personal injury complaint against defendants North Haledon Fire Department (NHFD) and Omar Vasquez. We affirm.

On January 8, 2003, Vasquez rented premises from the NHFD for a surprise birthday party. NHFD frequently rented a portion of its firehouse for parties and other functions as a means of defraying its costs. The rental price was $350. The premises in question constituted a room of indeterminate size with a parquet wood dance floor approximately sixteen feet square. The area surrounding the dance floor was carpeted. The surface of the dance floor was cleaned before every event using a neutral cleaner applied with a mop. The floor was not waxed or buffed.

According to the rental agreement, eighty people were to attend the party. There were ten round tables, with eight chairs per the table, which were apparently placed on the carpeted area surrounding the dance floor. In addition, there were several tables somewhere on the periphery of the room from which food was to be served, buffet-style. Drinks, including alcoholic beverages, were also provided for the guests.

Plaintiff and his wife were among the invited guests, arriving about 7 p.m. Mrs. Ferreras, who was wearing boots, testified that as she entered the room and walked toward her seat, the floor (referring to the dance floor) felt "slippery." She said that she slipped three times before reaching her seat. However, she did not notice anything wet on the floor and did not mention her slipping to anyone, including plaintiff, claiming she did not have a chance to do so. It was raining outside that evening and it had snowed the day before.

Plaintiff was the first person to dance and sustained serious injuries when he fell on the dance floor. Plaintiff's version of his fall changed over the course of the litigation. In a signed, hand-written Notice of Tort Claim dated March 1, 2003, plaintiff stated that he "fell due to the freshly waxed dance floor"; the dance floor was "freshly waxed and hazardous." In his complaint, plaintiff repeated that he was "caused to fall on a negligently and palpably unreasonably maintained highly waxed dance floor." In his answers to interrogatories, signed on May 24, 2004, plaintiff certified that he "slipped and fell on the dance floor because the floor was extremely slippery. It appeared to have been highly waxed."

Yet, in his deposition on December 15, 2004, plaintiff testified that the dance floor "was slippery" and that when he tried to get to up after his fall, he noticed "that it was wet." Prior to his fall, plaintiff had not had anything to eat but had ordered a beer at the bar that he "didn't finish." No witness corroborated plaintiff's testimony that the floor was wet.

NHFD provided a monitor for the rental premises. On the date in question, Henry Tanski, a member of the volunteer fire department, was the assigned monitor. His responsibility was to be on hand for emergencies, such as when "a fuse gets blown or a toilet gets plugged up or something like that." Tanski stayed in a room adjacent to the function room, although he occasionally would look in to see that nothing unusual was going on. As part of his responsibilities he would clean the function room after the party. No one complained to him about the dance floor on the evening of plaintiff's accident.

The NHFD moved for summary judgment which was heard by Judge LaConte on January 6, 2005. Defendant Vasquez joined in the motion. At the outset, the judge found that the fire department had a duty to plaintiff who was an invitee. The judge rejected plaintiff's argument that his testimony that the dance floor was wet, together with the acknowledged fact that drinks were served at the party, put defendants on notice that a dangerous condition existed and that, as a result, they breached their non-delegable duty to use reasonable care to protect guests against known or reasonably discoverable dangers. LaRussa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156, 162 (App. Div. 2003). The judge stated:

THE COURT: I have reviewed the facts very carefully. I have looked at the photographs that are attached to the engineer's report of D'Onofrio Engineers.

I notice that -- and it's been pointed out in the papers -- that surrounding the dance floor is carpeting. There is a photograph of the front door into the firemen's hall.

There appears to be two runners right by the doorway that would appear to be there in order to absorb any moisture, water, etcetera, that pedestrians track into the premises.

I have searched the record very carefully to see if there is anything that remotely indicates negligence on the part of the fire department.

I don't see any expert report or anything that said because it had rained the day before or maybe earlier that day and it was drizzling, etcetera, that there were insufficient precautions taken by the fire department to see to it that people didn't track water -- into the firemen's hall.

I see nothing. And there is no testimony whatsoever that anyone saw water on the floor or a drink -- beverage, call it what you will -- a dangerous condition on the floor. There was no notice given to the fire department monitor that there was a problem, a dangerous condition, that he just ignored it and didn't go out there to try to mop it up.

I don't believe there is any merit to the contention that the fire department monitor was under an obligation to -- Mr. Tanski -- to stand in a spot where he could visually look at the dance floor to be sure that no one spilled a drink or whatever and created a problem.

I recognize under the Brill standard, that courts are required to engage in the same type of evaluation, analysis or sifting of -- I'm quoting from a case now at page 520, "The Courts are required to engage in the same type of evaluation, analysis or sifting of evidential materials as required by Rule 4:37-2(b)," which is the involuntary dismissal rule -- "in the light of the burden of persuasion that applies if the matter goes to trial."

Under Rule 4:37-2(b), a motion for involuntary dismissal shall be denied if the evidence, together with the legitimate inferences therefrom could sustain a judgment in the plaintiff's favor.

I recognize that the Brill standard goes on to say that the evidence must be viewed in the light most favorable to the non-moving party. If it is sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party the motion has to be denied.

I recognize that the Court's function, the Judge's function -- is not to weigh the evidence or determine the truth of the matter but to determine whether there is a genuine issue for trial. And that credibility determinations will continue to be made by -- a jury and not the Judge.

-- I have applied that standard, I have looked at it and searched the record to see if I could find any evidence of negligence on the fire department. And I simply cannot.

Therefore, I will grant the motion of the defendants -- dismissing the complaint.

Plaintiff moved for reconsideration, arguing that, in his initial decision, the judge had overlooked plaintiff's reliance on what was referred to as the "mode of operation" line of cases. See e.g., Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966); Bozza v. Vornado, Inc., 42 N.J. 355 (1964); Ryder v. Ocean County Mall, 340 N.J. Super. 504 (App. Div.), certif. denied, 170 N.J. 88 (2001); Torda v. Grand Union Co. 59 N.J. Super. 41 (App. Div. 1959). In Nisivoccia, supra, 175 N.J. at 563-564, the Court stated the rule as follows:

Ordinarily an injured plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. E.g., Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291, 471 A.2d 25 (1984). Equitable considerations have, however, motivated this Court to relieve the plaintiff of proof of that element in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents. In those circumstances, we have accorded the plaintiff an inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.

Judge LaConte analyzed the mode of operation cases at length and "reject[ed] completely the contention that this is a mode of operations case that would fall under the ambit of Wollerman or Nisivoccia." On appeal, plaintiff argues that (1) the NHFD breached its duty to him because its mode of operation created the hazardous condition on the dance floor that caused him to fall, and (2) Vasquez breached his contractual duty to his guests/invitees. Having considered these arguments in light of the record and applicable law, we affirm substantially for the reasons cogently articulated by Judge LaConte in his oral rulings of January 6, 2006, and February 7, 2006. In doing so, we have, as plaintiff urges, considered the liability of Vasquez and NHFD separately. As Judge LaConte explained, as to NHFD this is not a "mode of operation" case, and as to Vasquez there is simply no evidence that he breached his acknowledged duty to plaintiff. While the summary judgment standard is generous to the non-moving party, it is appropriately invoked where the evidence "is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed 2d 202, 214 (1986)). Such was the case here.

Affirmed.

 

It appears that the Borough was dismissed from the litigation after plaintiff learned that the firehouse was not owned by or under the control of the Borough.

Madeline Ferreras, Renzo's wife, sued per quod. In this opinion, for ease of reference, we will refer to Renzo as the plaintiff.

Plaintiff initially, but erroneously, thought the case was governed by the Tort Claims Act.

The judge also rejected plaintiff's motion for reconsideration on procedural grounds, agreeing with defendants that plaintiff had not met the requirements of R. 4:49-2. We prefer to deal with the merits of plaintiff's argument.

Vasquez was never deposed.

(continued)

(continued)

9

A-3385-05T3

December 5, 2006