KATHERINE COTGREAVE v. BEVERLY S. CORRIS and KATHY REINER -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3739-08T33739-08T3

KATHERINE COTGREAVE,

Plaintiff-Appellant,

v.

BEVERLY S. CORRIS and

KATHY REINER,

Defendants-Respondents.

__________________________________

 

Argued February 23, 2010 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1377-05.

Steven L. Kessel argued the cause for appellant (Drazin & Warshaw, attorneys; Mr. Kessel, on the brief).

Stephen J. Foley, Jr., argued the cause for respondents (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. Foley, on the brief).

PER CURIAM

In this premises liability action, plaintiff Katherine Cotgreave appeals from the December 19, 2008 Law Division final judgment entered following a jury verdict of no cause of action against defendants Beverly Corris and Kathy Reiner. Plaintiff also appeals from the February 20, 2009 order denying her motion for a new trial. We reverse.

The following facts are derived from the evidence presented at trial.

Defendants are co-owners of a home in Keansburg, which they had purchased in October 2004. On the evening of March 5, 2005, plaintiff was a social guest at the home. A friend drove her there and parked the car in the driveway, which ran from the front steps of the house to a sidewalk abutting the property. Plaintiff had been to the property twice before, arriving in the same manner as she did on March 5, 2005.

Plaintiff left defendants' home between 11:30 p.m. and midnight. As she proceeded down the driveway toward her friend's car, which the friend had moved to the street to the right side of the driveway, she lost her footing at the point where the driveway meets the sidewalk, and fell to the ground. As she described it, she got to the end of the driveway, "didn't know it dropped off," and "just went and dropped off the end of the driveway." Plaintiff suffered injuries to her back and a fractured ankle requiring an open reduction and internal fixation. She filed a complaint against defendants seeking damages for her injuries.

During defense counsel's opening statement at trial he mentioned a home inspection report defendants had obtained prior to purchasing the property, which did not reveal any problems with the driveway, and that others came to the house on a regular basis after the purchase. Plaintiff's counsel objected and moved for a mistrial, claiming that defendants had not produced the home inspection report in discovery and it constituted hearsay. Defense counsel responded that he intended to use the report not to establish there was no dangerous condition but to establish what defendants knew or did not know about any hazardous conditions on their property. After reviewing the report, plaintiff's counsel agreed to the judge's suggestion to give a limiting instruction that the jury should consider the report for the exclusive purpose of showing defendants' state of mind as to why they did or did not take certain action regarding the driveway, not as evidence of whether or not a dangerous condition existed.

There is no dispute that there are no lights at the end of the driveway where plaintiff fell, and that motion sensors for lights on the house only activated when someone walked halfway up the driveway or stepped out of the house onto the front porch. Plaintiff described the lighting at the end of the driveway at the time of her fall as "dim[,]" and explained that due to the poor lighting, she was not aware that the driveway was higher than the sidewalk. Corris admitted that the lighting at the end of the driveway at midnight was "fairly dark."

Plaintiff's engineering expert, Wayne Nolte, Ph.D., explained that the driveway was constructed of two-by-four wooden boards that extended from the front door of the house to the sidewalk. The driveway was at a three inch higher elevation than the sidewalk. To compensate for that elevation, there were two pieces of wood at the end of the driveway, one of which was sloped downward at twenty degrees, and the other sloped downward at forty-five degrees. Nolte opined that the extreme three-inch slope at the end of the driveway was a hazardous condition that caused the accident. He also opined that the condition was a latent defect because at night when walking down the driveway from the house

All you see is the driveway going to the sidewalk.

There's no distinguishing marks or anything to inform that in the path that you're following, and really dropping off from your visibility in the direction that you're walking down the driveway, is this drop-off and this multiple slope. There's nothing like that. So you really wouldn't see it as you walk down the driveway.

Prior to Nolte's re-direct examination, the court gave a limiting instruction that the jury could not consider the inspection report as evidence of "whether or not the condition of the premises was hazardous[,]" but should only consider the report "for the sole and the limited purpose of the knowledge of the defendants. That is, based upon whatever may have been said in the report, what the defendants knew about the condition of the premises." Nolte then testified that if the home inspector had found a condition in the driveway that had to be addressed, the inspector would have placed a comment in the report but the report contained no such comment.

Corris testified that she understood she had the right to request the repair of any problems revealed in the home inspection report, and that based on her receipt of the report, she made no request. Plaintiff's counsel objected when defense counsel asked Corris whether other people who came to her home had a problem with the driveway. The judge overruled the objection, concluding that

the issue here goes to state of mind. Whether anybody else fell in the driveway or whether anybody else complained of a problem, if this was brought to the witness's attention. That's really the essence. I think if you focus your question along those lines, it would be particularly proper, because again, the social guest liability question is knowledge of the condition on the part of the defendants. And so it is appropriate to pursue along those lines.

Corris then testified that she knew there was "a step up" difference between the sidewalk and the driveway and a slope, and she noticed the difference when she walked from the driveway to the sidewalk. However, from the time she purchased the property until plaintiff's fall, no one ever brought to her attention any problems with the driveway.

Reiner testified that prior to and after purchasing the property, she saw the height differential in the driveway from the street. However, from the time she purchased the property until plaintiff's fall, she did not become aware of any difficulties with the end of the driveway.

Upon completion of their testimony, defendants moved for an involuntary dismissal based on Nolte's opinion that the condition on the driveway was a latent defect. They relied on Parks v. Rogers, 176 N.J. 491 (2003), which held that a landowner is not liable to a social guest for injuries caused by a latent defect of which the landowner is unaware. The judge denied the motion, finding, in part, that even accepting the characterization of the driveway's condition as latent, "it was clear that [defendants] were aware of the nature of the driveway and aware of the drop between the end of the driveway and the commencement of the sidewalk . . . So whether Dr. Nolte characterized the condition as latent or something other than latent, the bottom line is that would only go to the question of [defendants'] knowledge of the condition."

The judge later instructed the jury in accordance with Model Civil Jury Charges 5.10A(2) (Negligence and Ordinary Care-General) and 5.20F(4) (Social Guest Defined and General Duty Owed). During deliberations, the jury asked the judge to repeat those instructions. It also informed the judge that "defendants' inspection report [was] missing." After repeating the instructions, the judge reminded the jury that the report was not

evidence of whether or not . . . the condition of the driveway, is or is not a dangerous condition and it cannot be considered as evidence of the nature of the condition.

. . . reference to the report was exclusively for the purpose of showing the defendants' state of mind. That is whether they knew at the time of the incident that the alleged condition was in fact dangerous. And it is only for that purpose that reference to the home inspection report was made.

The jury returned a no cause verdict. Plaintiff filed a motion for a new trial, arguing, in part, that testimony about the home inspection report was highly prejudicial and should have been barred, and the judge improperly permitted testimony about no prior accidents on the property. The judge denied the motion, concluding that the report was not hearsay, it was properly used to establish defendants' state of mind as to whether they reasonably believed that the condition of the driveway was not dangerous, and its probative value of defendants' knowledge of the alleged dangerous condition outweighed any prejudicial effect, "particularly in light of the limiting instruction," which the court concluded was "sufficient to counter the potential misuse of the information."

On appeal, plaintiff contends that the judge erred in permitting defendants to testify about their subjective belief that the driveway was not dangerous based on the home inspection report and on the lack of prior complaints about the driveway. Plaintiff argues that defendants' state of mind as to their subjective belief that the driveway's condition was not dangerous was irrelevant, and that once she established defendants' knowledge of the driveway's condition, the only issue for the jury to decide was whether a reasonable person would recognize that condition was dangerous. We agree.

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). We grant substantial deference to the trial judge's discretion on an evidentiary ruling and will not disturb it unless it is "so wide off the mark that a manifest denial of justice result[s]." Brenman v. Demello, 191 N.J. 18, 31 (2007) (quotation and citation omitted). Applying these standards, we conclude that a mistaken use of discretion occurred.

If a property owner

knows or has reason to know of some artificial or natural condition on the premises which could pose an unreasonable risk of harm to his/her guest and that his/her guest could not be reasonably expected to discover it, the [property owner] owes the social guest a duty to exercise reasonable care to make the condition safe or to give warning to his/her guest of its presence and of the risk involved.

. . . .

If . . . the property owner (1) knew or had reason to know of the dangerous defective condition, (2) realized or in the exercise of reasonable foresight should have realized it involved an unreasonable risk of harm to the guest, (3) had reason to believe the guest would not discover the condition and realize the risk, and (4) failed to take reasonable steps to protect the guest from the danger by either making the condition safe or warning the guest of the condition and the risk involved, . . . the host [may be found] negligent under the circumstances[.] [(Emphasis added.)]

[Model Jury Charge (Civil), 5.20F(4), "Social Guest - Defined and General Duty Owed" (2000)].

A "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 498; see also Berger v. Shapiro, 30 N.J. 89, 98 (holding that "[t]he host is not required to inspect the premises to discover defects or to maintain them in a safe condition for his guest, but if he knows of any defective or dangerous condition, he must exercise reasonable care to correct the condition or warn the guest of the danger"). "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.'" Parks, supra, 176 N.J. at 498 (quoting Berger, supra, 30 N.J. at 100). Citing with approval the Restatement (Second) of Torts 342, the Court noted that "[t]he landowner is not the measure of whether a known condition of the property is dangerous. The inquiry is an objective one, whether the landowner should realize the condition posed an unreasonable risk of harm." Id. at 499.

There is no dispute that defendants actually knew about the driveway's condition, i.e., that there was a difference in height between the driveway and sidewalk, and that the lighting where the driveway and sidewalk meet is "fairly dark" at midnight. "If a [property owner] actually knows of a state of affairs on his land which a reasonable man would realize was a danger, he should not be allowed to escape from his responsibilities on the plea that he was not a reasonable man and did not realize it." Taneian v. Meghrigian, 15 N.J. 267, 277 (1954). Thus, defendant's subjective belief that the driveway was not dangerous is irrelevant. The question is whether a reasonable person should have realized that the driveway's condition posed an unreasonable risk of harm to a guest unaware of the danger it posed at night. Parks, supra, 176 N.J. at 501. Accordingly, it was error to permit testimony about defendants' subjective belief that they did not realize the driveway was dangerous.

Moreover, it was improper to permit testimony about the home inspection report because it was hearsay. It was also improper to permit testimony about the report and the lack of prior accidents on or complaints about the driveway to establish defendants' state of mind.

 
Reversed and remanded for a new trial.

(continued)

(continued)

11

A-3739-08T3

July 23, 2010