SANDRA DABROWSKI v. GAIL M. MOHAMMED

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0007-07T30007-07T3

SANDRA DABROWSKI,

Plaintiff-Appellant,

v.

GAIL M. MOHAMMED, NABILE

MOHAMMED, and THOMAS YOUNG,

Defendants-Respondents.

____________________________________________________________

 

Argued August 6, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-3479-05.

David L. Wikstrom argued the cause for appellant (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Wikstrom, of counsel and on the brief).

Lori Brown Sternback argued the cause for respondents (Methfessel & Werbel, attorneys; Ms. Sternback, on the brief).

PER CURIAM

Plaintiff Sandra Dabrowski appeals from orders dated July 6, 2007, and August 3, 2007, which granted summary judgment in favor of defendants Gail M. Mohammed, Nabile Mohammed and Thomas Young respectively. The July 6, 2007, order indicates the order was entered "for the reasons stated on the record." On the August 3, 2007, order, the court wrote: "[p]laintiff was a social guest on these premises at the time of the accident and had previously been on the deck in the same condition as it was when the accident occurred. This defendant did not violate a duty to the plaintiff." Based upon our review of the record, the arguments advanced and the applicable law, we reverse and remand.

The incident precipitating the negligence claim in the action occurred in Elizabeth, on December 4, 2004, at approximately 4:30 p.m. At defendant's request, plaintiff was assisting with some interior household cleaning at defendant's home. Plaintiff had been to the home several times. She was married to the cousin of defendant Gail Mohammed. Gail and her husband, Nabile, had recently separated and they had sold the house to co-defendant Thomas Young, who was holding money in escrow pending the clean-out of the home.

It is undisputed that plaintiff had been to the deck area on at least one previous occasion. At that time, she had responded to an urgent call by defendant Gail Mohammed, whose uncle was lying on the deck. Ms. Mohammed was unsure whether her uncle was sleeping or had expired. Upon plaintiff's arrival, plaintiff found Ms. Mohammed's uncle had indeed passed away while on the rear deck.

According to plaintiff, after she finished cleaning the home, defendant Gail Mohammed instructed her to leave through the rear exit. Ms. Mohammed, however, maintains that she had warned plaintiff not to take that exit because she knew defendant had not taken her medication, which might cause plaintiff's legs to be weak. Nonetheless, plaintiff exited through the backdoor onto a deck area. Plaintiff alleges that the weather conditions at that time were dark and misty. The parties dispute the degree to which the flood lights illuminated the deck. Whereas plaintiff contends the deck was entirely unlit, defendant contends that the backyard was adequately illuminated. Plaintiff also testified at deposition that debris littered the entire yard.

Plaintiff proceeded onto the elongated step along the top part of the deck, and she stumbled off the side of the deck onto the ground covered with debris. As described by plaintiff's engineering expert, Edwin C. Berry, P.E., the deck is twelve feet three-inches wide, and there is a full width ten-inch high step running across the deck at a point four feet nine inches from the rear face of the house. There is a guard on the western side of the deck, however, on the eastern side where the accident took place, there is no hand railing or guard. According to Mr. Barry's report, there was supposed to be a rail pursuant to the model code of the Building Officials and Code Administrators International, Inc., known as the BOCA National Building Code/1999 (BOCA), adopted by the State of New Jersey in 1976. The engineer's report indicates the revision of the BOCA Code, which was in effect at the time of the accident, states that the maximum riser height shall not exceed between seven and three quarter inches and eight and one quarter inches. In addition, the plaintiff's engineering expert's report indicated that guards are required along open-sided walking surfaces, mezzanines, stairways, ramps and landings which are located more than fifteen and one-half inches above the floor or grade below. The edge of the deck where plaintiff fell is thirty-six and one-half inches above the grade below.

In June 2007, defendant and plaintiff both made motions for summary judgment which were heard at a July 6, 2007, oral argument. The trial court was convinced that plaintiff should be considered a social guest for common law negligence classification purposes. The court's various comments disclose the basis for the order granting summary judgment in favor of defendants:

THE COURT: Actually the memo that was prepared for me says it's an issue that whether plaintiff knew about the absence of the handrail, but I seem to find today that she did. Whether she was instructed to leave through the backdoor, I, or she was or the defendant tried to stop her, I'm not sure legally what the difference it makes.

. . . .

THE COURT: And, but you know, . . . whether the plaintiff was weak as a result of needing insulin for her diabetic condition and needed to get home to take a shot, I don't see what that has to do with the price of beans really --

. . . .

THE COURT: If there was a hidden defect, of course, you know, we would have a trial. We'd probably have it settled, but there's nothing different. It's just that she didn't notice it which is really too bad, but it's my job not to let cases go to juries if there's no case for them to, there's no facts for them to call. There's no duty to do more than they did to a social guest.

. . . .

THE COURT: And no one's disputing that the husband took the rail off --

. . . .

THE COURT: -- before Thanksgiving.

. . . .

THE COURT: So therefore it was done and it's not in dispute. Whether she noticed it or not is a good question but that's not dispositive.

. . . .

THE COURT: As I said before, it's not the defendant's fault if she didn't look around while she was out there. I'm not saying somebody would say she was terrible that she didn't, but she didn't I guess.

. . . .

THE COURT: But that doesn't make the defendant have a duty. I'm sorry. As I said, I did the very same thing walking out of church which I did for 28 years or 20 something years and just forgot about the fact that it went down. Fortunately, I didn't get that hurt but --

. . . .

THE COURT: You have to look down I guess.

. . . .

THE COURT: She's a social guest of the tenant.

. . . .

THE COURT: Which is the determining factor here. Okay.

[T41-47.]

While those comments at oral argument related to the motion made by the Mohammeds, weeks later, on August 3, 2007, the court issued its order granting defendant Thomas Young's motion, relying on the same rationale.

On August 30, 2007, plaintiff filed a timely notice of appeal of both the above-mentioned orders, asserting the following arguments for reversal.

POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING, AS A MATTER OF LAW, THAT THE DEFENDANT/RESPONDENT/LANDOWNER HAD NO DUTY TO WARN THE PLAINTIFF/APPELLANT OF THE DANGERS SHE WILL ENCOUNTER WHEN SHE ATTEMPTS TO TRAVERSE THE DEFENDANT'S REAR-DECK.

A. THE TRIAL COURT FAILED TO APPLY THE MODERN TEST OF GENERAL TORT OBLIGATIONS IN THIS CASE.

1. Two cases Directly on Point.

B. THE COURT BELOW COMMITTED REVERSIBLE ERROR IN FINDING THAT THE DEFENDANT/RESPONDENT LANDOWNER HAD NO DUTY TO WARN THE PLAINTIFF OF THE DANGEROUS CONDITION.

1. The Trial Court Committed Reversible Error In Finding That the Deck Did Not Contain A Hidden Defect.

2. The Court Below Erred In Concluding That The Plaintiff Knew of And Appreciated the Dangerous Conditions on the Deck.

3. The Defendant/Respondent Knew or Should Have Known that Traversing the Deck Under These Circumstances, Posed An Unreasonable Risk to the Plaintiff.

POINT II: THE COURT'S CONSIDERATION AND RELIANCE UPON HER OWN PAST ACCIDENT IS PLAIN ERROR AND REQUIRES A REVERSAL.

On an appeal from an order granting a motion for summary judgment, this court applies a de novo standard of review. Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), cert. denied, 154 N.J. 608, 713 (1998).

The judgment or order sought shall be rendered forthwith 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.

[R. 4:46-2(c).]

In making a determination, the motion court and this court must consider the facts in the light most favorable to the non-moving party and weigh "'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.'" Liberty Surplus Ins. Corp. Inc. v. Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

Plaintiff contends that the trial court erred by not finding the presence of disputes as to genuine issues of material fact. First, "[i]n a negligence case, plaintiff must show a duty of care, a breach of that duty, and that the breach proximately caused the harm." Olivo v. Exxon Mobil Corp., 377 N.J. Super. 286, 292 (App. Div. 2005); Ivins v. Town Tavern, 335 N.J. Super. 188, 194 (App. Div. 2000). "'[W]hether a duty exists is ultimately a question of fairness.'" Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583 (1962)). "'[T]he scope of the duty owed by the defendant [is] a legal question for the court to decide, based on the totality of the circumstances.'" Olivo, supra, 377 N.J. Super. at 188 (quoting Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 18 (App. Div. 2001)).

In premises liability matters such as this, courts have generally followed the common law in order to derive the nature of the duty owed to plaintiff. Specifically, the court will decide whether to classify plaintiff as a trespasser, licensee/social guest, or business invitee. Parks v. Rogers, 176 N.J. 491, 497 (2003); Sussman v. Mermer, 373 N.J. Super. 501, 504 (App. Div. 2004). At oral argument on this appeal, counsel for the parties agreed with the trial court, that plaintiff should be classified as a social guest.

A host owes a limited duty to a social guest as to conditions of the host's property. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997).

The Supreme Court has stated:

[t]he duty of care owed to a social guest is greater than that owed to a trespasser, but less than that owed to a business visitor. A landowner is not required to provide greater safety on his premises for a social guest than he would for himself. For example, the landowner does not have a duty to scour the premises to discover latent defects. On the other hand, the social guest should be at no greater risk than the landowner, who, by reason of his knowledge of the property, has the ability to protect himself against a dangerous condition.

[Parks, supra, 176 N.J. at 497-98.]

Therefore, the Court further explained:

the law places on the landowner the duty to disclose to the social guest the dangerous condition or to correct it. Thus, "the social guest . . . is at least entitled to the same knowledge possessed by the host of dangerous conditions and should not be expected to assume the risk of such conditions in the absence of a warning." Once the proofs show that the landowner knew of a particular condition of the property, "[t]he inquiry is not whether the defendant realized the condition held any risk but whether a reasonable man would be cognizant of it." If, however, "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 exercise due care.

[Id. at 498 (citations omitted).]

Despite the fact that the common law approach is still favored in residential premises liability cases, courts have employed another methodology of duty analysis in actions alleging negligence. Sussman, supra, 373 N.J. Super. at 503 (applying a more flexible analysis in a case where the plaintiffs had been invited to a residence for an evening graduation party, and the plaintiff fell from an outside deck to the ground injuring himself); but cf. Raimo v. Fischer, 372 N.J. Super. 448, 454 (App. Div. 2004) (stating "The only type of tort cases in which our Supreme Court has continued to apply common law principles of premises liability are those involving claims against the owners of property used for non commercial purposes.").

In Sussman, supra, we noted that

[t]he 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." 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[]", the task now 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. In assessing whether imposition of such a duty would be fair and just, courts weigh and balance 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.

[Id. at 505 (citations omitted).]

We are confident that this case presents genuine issues of material fact under either approach. Under the common law approach, the knowledge of the homeowner and corresponding knowledge of the visitor come to the forefront of the analysis. The trial court stated that because plaintiff had been on the deck on one previous occasion, plaintiff should have known of the deck's deficiencies. According to the trial court, plaintiff had the duty to look down and to avoid injury. In Tighe v. Peterson, 356 N.J. Super. 322, 324 (App. Div), aff'd, 175 N.J. 240, 241 (2002), this court used the common law approach and upheld a summary judgment order in favor of defendants. Id. at 324. However, the plaintiffs in Tighe admitted to using the pool approximately twenty times prior to the date when one plaintiff dove into the shallow end of the pool, causing injury to his neck. Id. at 241. The plaintiff knew which end of the pool was shallow but claimed that he dove in the shallow part, nonetheless, out of confusion. Id. at 325. Those facts are clearly distinguishable because, "[t]he condition of the property allegedly causing the injury was familiar and well-known to the plaintiff." Id. at 328.

By comparison, plaintiff had significantly less knowledge of defendant's property than the plaintiffs had in Tighe. Plaintiff in the instant case had scant familiarity with the deck area of the property. She had been to the deck on one previous occasion, where she came to ascertain whether the defendant's uncle was dead or alive. More importantly, her general familiarity with the deck area might not have enabled her to recognize the danger. At her deposition, plaintiff described the accident as follows:

I came out, and the step was right there, and I went down on my right -- with my right -- let me see, on my left foot, I put down, and then when I went to get the right foot down, I lost my balance. My leg twisted. My right arm, my right leg twisted, and I went to the one side, and there was no rail on the side where I went, and I fell right out.

But there was one big step in the front of the kitchen. That's how I lost my balance with that step.

Q. The back door that you're referring to, that's not directly in the kitchen, is it?

A. Yeah.

Because plaintiff lost her balance upon exiting the kitchen onto what she described as a "big step," and there was no handrail or guard along the edge of the deck, plaintiff could not prevent her impending fall. Plaintiff had appreciably less knowledge of defendant's property than the plaintiffs had in Tighe.

To the extent prior knowledge is material, plaintiff's level of knowledge was more analogous to that of the plaintiff in Parks. 176 N.J. 491. There, the plaintiff ascended a wooden staircase at nighttime to enter a beach house to which she had never previously visited. Id. at 495. After socializing in the home for a while, plaintiff decided to retrieve her overnight bag from her car. Ibid. She then walked down that same staircase which she first used to enter the home. Ibid. She held onto the handrail, but unbeknownst to the plaintiff, the handrail ended on the second to last step. Ibid. She lost her footing and fractured her left ankle when she attempted to grasp the handrail on the final steps. Ibid.

Applying the common law standard of duty to a social guest, the Supreme Court in Parks reversed the order granting summary judgment, finding genuine issues of material fact in dispute as to "whether the handrail was an inadequate length, whether defendants knew or had reason to know of the handrail's condition, whether that condition posed an unreasonable risk of harm, and whether plaintiff should have observed where the handrail ended through the reasonable use of her faculties." Id. at 502. Despite the fact that the plaintiff in Parks had used the same stairs and handrail just hours before her fall, the Supreme Court still ruled that factual issues existed as to the plaintiff's knowledge of possible defects.

We are satisfied that factual issues exist in this case. Plaintiff had been to the deck on only one previous occasion, weeks before the incident in question and under somewhat extraordinary circumstances where she sought to ascertain whether a man was dead or alive. This court should not charge her with a full knowledge or appreciation of her surroundings as a matter of law but should leave that issue to a jury.

Likewise, the award of summary judgment should be reversed if the more flexible analysis of duty is employed. In Campbell v. Hastings, 348 N.J. Super. 264 (App. Div. 2002), we observed that "the question thus becomes whether under all the circumstances it was fair and just to impose a duty on [the landowner] to exercise reasonable care to prevent foreseeable harm to [the social guest] and, if so, whether sufficient foreseeable harm was present to raise a jury question regarding [the landowner's] breach of this obligation." Id. at 266. There, the plaintiff had been invited to defendant's home to view some photographs shortly before dark. She was escorted through the front door crossing over a sunken foyer area. Id. at 266. On her way out of the home, the defendant escorted plaintiff through that same sunken foyer area but via a different pathway. The plaintiff did not see the steps and fell. Ibid. We noted that there was no indication in the record that the sunken foyer itself contained any claimed defect. Id. at 269. Nevertheless, we found that "dangerousness is closely related to foreseeable harm," and that "[t]he possibility of a seventy-five year old woman falling or stumbling into the unlit foyer should have been reasonably foreseeable under these circumstances." Id. at 271. The harm could have been avoiding with "minimum effort" on the part of the defendant. Ibid.

Likewise, the foreseeability of a risk of harm posed by the step encountered by a social guest immediately upon exiting the kitchen door in close proximity to an unguarded perimeter of the deck is obvious and, under all the circumstances, it would not be unfair or unjust to impose a duty on the landowner to exercise reasonable care to prevent foreseeable harm to a social guest who had been assisting the host in cleaning the premises. Whether the risk of foreseeable harm was sufficient to impose a duty upon the homeowner raises a question for a jury. There was a dispute as to whether a warning was given to defendant and as to the degree of lighting in the area. Still, a jury could reasonably determine that a breach of duty occurred where a hazard of a misstep was presented by a step as soon as one exited the door and where the riser did not conform to the required or recommended height. Those two potential hazards combined with the absence of a guard that might have permitted plaintiff to recover her balance after her misstep may be sufficient for a jury to determine that defendant should have warned plaintiff or elected to direct plaintiff to exit via the front door rather than out the dangerously configured back deck. Here, like the plaintiff in Campbell, plaintiff alleges she was led in the house one way, then instructed to exit via a different pathway. See also, Knox v. Goodman, 45 N.J. Super. 428, 437 (App. Div.), certif. denied, 25 N.J. 47 (1957) (observing that "it was the absence of adequate balusters or an intermediate railing which the jury could find . . . was the natural and proximate cause of [plaintiff's] stumble leading to the fall from the step to the ground.").

Plaintiff presented an expert report to the court. The expert indicated that the riser from the deck to the kitchen door was higher than recommended by industry standards adopted by the State and that defendant's property was in violation of at least two BOCA Code provisions. The engineer opined specifically that "[t]he lack of having a guard as called for in the BOCA Code created a situation that was likely to cause an accident, especially with a low lighting level." In addition to the parties' dispute over the lighting of the patio, they dispute whether any warning was given to plaintiff and whether plaintiff, by reasonable use of her own faculties, could or should have appreciated the dangerous nature of the step from the kitchen to the deck. The danger of such a condition is not necessarily self-evident. See Longo v. Aprile, 374 N.J. Super. 469, 474 (App. Div. 2005) (finding a landowner did not breach duty of care by failing to warn neighbor, a social guest working alone on defendant's roof eight feet above ground, because the danger was self-evident).

Under all the circumstances, we reverse and remand to the Law Division for further proceedings consistent with this opinion. In light of our disposition in this manner, we need not, and do not, reach plaintiff's contention that the trial court wrongly relied on her own past experience in arriving at her decision.

Reversed and remanded.

 

On March 26, 2008, an order was entered suppressing the appellate brief on behalf of co-defendant Thomas Young. No one appeared at oral argument on behalf of Mr. Young.

(continued)

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A-0007-07T3

November 20, 2008