SANDRA LYNN MARION v. ANTHONY L. SADUK, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2404-08T12404-08T1

SANDRA LYNN MARION,

Plaintiff-Appellant,

v.

ANTHONY L. SADUK, JR.,

Defendant-Respondent.

____________________________________________________

 

Argued October 15, 2009 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0160-07.

Colin G. Bell argued the cause for appellant (Hankin, Sandman & Palladino, attorneys; Mr. Bell, on the briefs).

Robert M. Smolen argued the cause for respondent (Swartz Campbell, LLC, attorneys; Mr. Smolen, on the brief).

PER CURIAM

Plaintiff, a guest in defendant's home, fell while descending a serpentine staircase, and sued for damages resulting from the personal injuries sustained. In granting defendant's summary judgment motion, the trial judge determined that plaintiff's familiarity with the staircase negated defendant's duty to warn of its alleged defects. We agree and affirm.

As the opponent of defendant's summary judgment motion, plaintiff was entitled to the trial judge's assumption that all her sworn statements were true and the benefit of all reasonable inferences flowing therefrom. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In reviewing the summary judgment entered against plaintiff, we apply the same standard that governed the trial judge. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008). Accordingly, we accept as true plaintiff's deposition testimony and the opinions of her liability expert as to the defects in the staircase.

Plaintiff testified at her deposition that she and defendant began dating on September 11, 2006, and that she first visited defendant's home in Woodbine at the end of that month. By October 30, 2006, the date of plaintiff's fall, plaintiff had visited defendant's home approximately fifteen times and stayed the night seven or eight times. When asked how many times she used the staircase, plaintiff testified that she went up or down the staircase

[r]oughly the same amount of times that I spent the night there. So, going up and down, if I was there -- if I spent the night there seven to eight times, it would be I guess double that.

Q. So, approximately 15 times?

A. Approximately.

Plaintiff denied ever using the stairs during any visits that did not result in her staying the night.

According to plaintiff's liability expert, this "very unusual" staircase consisted of fourteen steps. Starting on the second floor, the first step downward consisted of what the expert called "a standard, rectangular oak tread, 9 3/16 inches deep." In descending, the user would next encounter four triangular treads -- referred to by the expert as "winders" -- approximately nine inches deep as the staircase made a 90 degree turn to the user's right. Once completing that right-angle turn, the user would then encounter three more standard rectangular treads approximately nine inches deep. Those three treads are followed by four more winders as the staircase turns another 90 degrees in the opposite direction from the prior turn. The last of those winders leads to a single rectangular tread, after which the user would step down onto the first floor.

Plaintiff's expert found the staircase defective in four ways: (1) the winders were too narrow and not uniform; (2) the height of the risers varied by as much as three-quarters of an inch; (3) the height of the mounted handrails departed from the applicable building code provisions in a manner that would tend to discourage their use; and (4) the handrail toward the bottom of the staircase was dislodged on one end on the date of plaintiff's fall and therefore, was unavailable to the user.

Based on this expert opinion and her own deposition testimony, plaintiff argued that she had provided evidence of all the elements of her negligence claim sufficient to defeat summary judgment. The judge rendered a written decision, holding that defendant did not breach the common law obligation to social guests or invitees because of plaintiff's familiarity with the staircase. He also determined that plaintiff failed to provide sufficient evidence of a link between the fall and the defects alleged by her expert.

We agree that plaintiff's familiarity with the staircase absolved defendant of any obligation to warn of the defects alleged by plaintiff's expert. That is, defendant owed plaintiff, his social guest, only a duty to warn of dangerous conditions of which he had "actual knowledge and of which the guest is unaware." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993); Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). A host "need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself," Berger v. Shapiro, 30 N.J. 89, 97 (1959); see also Parks v. Rogers, 176 N.J. 491, 498 (2003), nor "inspect [the] premises to discover defects which otherwise might not be known to the casual observer," Endre, supra, 300 N.J. Super. at 142. Where a guest is "aware of the dangerous condition or by a reasonable use of his [or her] faculties would observe it, the host is not liable." Berger, supra, 30 N.J. at 99.

Our application of these principles starts with plaintiff's testimony that she had visited defendant's home on numerous occasions. Specifically, plaintiff acknowledged that during the approximate thirty days that elapsed from her first visit at the end of September 2006, to the day of the accident, October 30, 2006, plaintiff had been in defendant's home fifteen times. Of those fifteen visits, plaintiff admitted staying overnight seven or eight times. By her own account, plaintiff used the staircase approximately fifteen times.

We agree with the trial judge that the frequency with which plaintiff encountered this staircase -- all within a relatively short period of time prior to her fall -- negated any duty on defendant's part to warn her of the size, height and depth of the winders and treads, the placement of the handrails, or the disabled handrail toward the bottom of the staircase. Accord Tighe v. Peterson, 175 N.J. 240, 241-42 (2002) (affirming a summary judgment in favor of a host when the guest was injured as a result of diving into a shallow end of a swimming pool he had been in twenty times previously); Endre, supra, 300 N.J. Super. at 139 (affirming a summary judgment in favor of a host because the guest had spent a "considerable amount of time" in the home prior to being hurt when falling down a staircase). All the conditions the expert asserts were defective -- a contention that Brill requires we accept as true -- were open, obvious and known to plaintiff as a result of her own experience with the staircase gained by her frequent use of the staircase. For that reason, defendant was entitled to summary judgment.

Plaintiff also argues that the judge erred in concluding that the facts do not provide sufficient support for a finding of proximate cause. In light of our holding on the duty aspect of her negligence claim, we need not examine the parties' arguments regarding proximate cause but do so for the sake of completeness.

The trial judge found an absence of proximate cause because plaintiff was unable to explain how she fell. For example, the record reveals that plaintiff was wearing socks, but no shoes, when she descended the staircase at 6:30 a.m. on the day in question. She was carrying an overnight bag over her right shoulder and held a cup of coffee in her right hand. When asked at her deposition about the fall, plaintiff could only state that she "[s]tarted going down the stairs and I don't know. I wound up on the bottom step." When pressed, plaintiff expressed an inability to provide further detail, explaining that she "wasn't planning on falling down the steps. I just remember coming around the corner and I fell." Plaintiff did, however, testify that she fell while stepping from the sixth (from the bottom) to the fifth step; we discern from this testimony that plaintiff was attempting to convey that her fall occurred while stepping from the last rectangular tread to the first of the last group of winders as the staircase turned to plaintiff's left as she descended.

In considering the four defects asserted by the expert in light of the Brill standard, we agree with the trial judge that the location of the handrails had no impact. Plaintiff was carrying an overnight bag over her right shoulder and held a cup of coffee in her right hand, thus demonstrating that the availability or location of handrails to her right side along the bottom half of the staircase would have not been utilized by plaintiff even if those handrails were located in what the expert believes to be the correct position. Accordingly, we agree there was an absence of any rational connection between the handrail defects identified by the expert and the occurrence in question.

We cannot, however, agree that plaintiff's indefinite description of how she fell compels a determination that a jury could not find on this evidence that the alleged defects regarding the inconsistent height of the risers and the inadequate depth of the winders did not cause plaintiff's fall. That plaintiff may not know precisely how she lost her step on the staircase is not dispositive of the issue of causation. Berger, supra, 30 N.J. at 101; Arvanitis v. Hios, 307 N.J. Super. 577, 585 (App. Div. 1998). Because in reviewing the summary judgment in question we must assume that the expert's opinion regarding the size of the winders and the height of the risers is correct and assume also that plaintiff fell when stepping from a rectangular tread to a winder of allegedly inadequate depth, we must conclude, in adhering to the Brill standard, that there was an arguable nexus between these alleged defects and plaintiff's fall that could not be rejected by way of summary judgment.

In any event, since the trial judge correctly determined that defendant owed no duty to warn plaintiff of the alleged defective condition of the staircase -- because plaintiff was aware of the staircase's peculiarities and alleged defects through frequent use -- we find no error in the grant of summary judgment in defendant's favor.

Affirmed.

Although plaintiff agreed to fifteen as an appropriate approximation, it is patently obvious that in counting her journey down the stairs on the morning in question, plaintiff did not use the staircase an odd number of times. Actually, plaintiff's testimony, which we quoted earlier, indicates that if plaintiff stayed overnight seven times, then she used the staircase fourteen total times and if she stayed overnight eight times, she used the staircase sixteen times.

Fixed to each tread or winder was an oblong-shaped carpet. These small carpets did not cover the entirety of any tread or winder, leaving exposed some hardwood surface that could prove slippery for a user shod only in socks.

(continued)

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A-2404-08T1

October 26, 2009