ROCHELLE PUZZUTIELLO v. GAIL WURSTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4054-10T2

ROCHELLE PUZZUTIELLO,

Plaintiff-Appellant,

v.

GAIL WURSTER,

Defendant-Respondent.

________________________________________________________________

November 2, 2011

Argued October 18, 2011 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6091-09.

Anthony Young argued the cause for appellant (Parker, Young & Antinoff, L.L.C., attorneys; David A. Parker and Deborah C. Halpern, on the briefs).

Russell Macnow argued the cause for respondent.

PER CURIAM

Plaintiff Rochelle Puzzutiello was visiting the home of her friend, defendant Gail Wurster, when one of defendant's dogs ran between plaintiff's legs, causing plaintiff to fall and sustain injury. The motion judge granted summary judgment to defendant, concluding that under the circumstances presented defendant owed no duty to plaintiff to warn her that the dog might run between her legs. We agree with that determination and affirm.

I.

Plaintiff and defendant became close friends in 1995, speaking to each other on the phone daily, and frequently staying overnight at each other's homes. Even after plaintiff moved to Florida in 2004, the two continued to speak by telephone nearly every day, and grew so close that they refer to each other as "sisters." Because defendant maintained her apartment in Audubon after moving to Florida, she returns to New Jersey over the holidays and on other occasions during the year. Over the course of her friendship with defendant, plaintiff estimated she has been to defendant's home "hundreds" of times.

In February 2009, defendant notified plaintiff that she had been diagnosed with cancer and would be undergoing surgery in a few weeks. Plaintiff immediately made plans to come to New Jersey as soon as defendant was released from the hospital, and to stay with defendant to help her "[t]ake care of everything."

On March 23, 2009, an hour after defendant returned home from the hospital, plaintiff's brother Joseph Ezzi drove plaintiff to defendant's home. When plaintiff entered the house through the back door, defendant's dogs were seated at defendant's feet. The older of the two dogs, Gabby, weighed between sixty and seventy pounds. The younger dog, a mixed breed named Lucy, weighed approximately forty pounds. Plaintiff described Lucy's temperament as "lovable." When asked what she meant by "lovable," plaintiff responded, "She would sit on your lap. She thought she was a lap dog. . . . [S]he was very gentle."

When plaintiff entered defendant's home on the day in question, neither of the dogs seemed "excitable" or "unruly." While unpacking her suitcase in a first-floor bedroom, plaintiff observed the two dogs remaining quietly at defendant's feet. With the aid of defendant's daughter, plaintiff next attempted to raise the head of defendant's bed, but was unsuccessful. At this point, the dogs still were seated at defendant's feet.

After sitting on the couch watching television for a brief period of time, plaintiff walked over to the recliner where defendant was seated "to tell her that I love her . . . cause she was in pain, . . . and I was trying to comfort her." While plaintiff stood next to defendant, both dogs still remained on the floor at defendant's feet. Plaintiff described the dogs' demeanor as "fine," noting that "[t]hey seemed to just want to stare at [plaintiff]." When asked whether the dogs were "unruly or jumping around in any way," plaintiff answered "no."

When plaintiff turned to go back to the sofa, she tripped over the dog Lucy, fracturing her ankle. When asked what Lucy was doing just before plaintiff tripped over her, plaintiff answered, "I guess she was just sitting, I don't really know." She explained that the dog "stood up in between my legs. I think maybe I was probably -- I don't know what I was doing. It happened so -- so fast and I don't know how the dog tripped me." She added it was "possibl[e]" that the dog "was trying to get out of [her] way as [she was] walking." Plaintiff acknowledged at her deposition that immediately before she fell, Lucy was not "acting in an unruly fashion in any way."

Defendant provided a written statement to plaintiff's investigator in which she explained:

The three of us [plaintiff, defendant and Ezzi] were in the living room area of my house, talking. . . . The dogs were overly excited I guess[] to see the guests in the house. And me, on my return home from the hospital[.] I was sitting in the chair and the two dogs were near [plaintiff] who was standing near the television, actually she was walking away from me. The smaller dog [Lucy] followed her and moved between her legs causing her to trip. She couldn't regain her balance and fell into the wall. . . . I knew she was injured seriously. . . . I want to say again that I felt terrible about this accident. I feel that it was the action of my smaller dog, Lucy when she placed herself between [plaintiff's] legs that caused her to trip.

At the end of the discovery period, both parties moved for summary judgment. At the conclusion of oral argument, the judge granted defendant's motion and denied plaintiff's, reasoning:

These are dogs. These are dogs that are walking around in their owner's home, their owner's back from the hospital, sitting -- recovering from surgery. This is a family friend who's been in the company of the dogs many, many times. Whether the theory of liability here is that . . . defendant should have known that the dogs were especially excitable and had a duty to protect the plaintiff by putting the dogs in some other room or controlling them or otherwise preventing them from causing this injury to the plaintiff[,] [t]his is not a dog bite case. This is not a dog jumping on somebody. This is not a dog walking in an unruly fashion. This is a dog in a house with its owner, with its friend, the plaintiff, who as the plaintiff is walking moves between [plaintiff's] legs and causes her to trip. . . .

The court finds as a matter of law that under those factual circumstances, the defendant had no duty of care to place the dogs somewhere other than in the living room. The plaintiff came to meet with [defendant] and while the court . . . feels badly that the plaintiff was injured, the court can find no duty of care on the part of the owner who was recovering from abdominal surgery, who was in her house, who was with her dogs. The -- sadly, the plaintiff tripped. She tripped over a dog that was walking around in a room that the dog lived in.

Plaintiff's motion for reconsideration was denied.

On appeal, plaintiff raises the following claims:

I. THE TRIAL COURT IMPROPERLY GRANTED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WAS A GENUINE ISSUE OF MATERIAL FACT.

II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION.

II.

Summary judgment is warranted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). An issue of fact is considered genuine "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). When "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill, supra, 142 N.J. at 540.

We review an order granting summary judgment de novo, applying the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiff argues that because a genuine issue of material fact existed, summary judgment was improper and the matter should have been submitted to the jury. Specifically, plaintiff contends there is "a factual dispute as to whether [d]efendant, knowing her dogs were overly excited, failed to control them." Phrased differently, plaintiff described the dispute of fact as "whether [d]efendant violated a duty owed to [p]laintiff." Plaintiff also argues that the judge's legal reasoning was flawed, as this was not a premises liability case, but one that invoked principles of absolute liability that would apply in cases of domestic animals who have exhibited known dangerous propensities.

Viewing the facts in a light most favorable to plaintiff, as Rule 4:46-2(c) requires, we conclude that Lucy moved between plaintiff's feet as plaintiff was returning to the sofa. However, there is no evidence in the record warranting a conclusion that Lucy, the dog that tripped plaintiff, was in any way unruly, excitable or out of control on the day in question. Plaintiff herself described Lucy as a "gentle" and "lovable" dog, and plaintiff acknowledged that she had never had any concerns about Lucy during any of the numerous occasions she had visited defendant. Although plaintiff stated that defendant's other dog Gabby was a "jumper," the record is devoid of any evidence remotely suggesting that Lucy, who was the cause of plaintiff's injury, had ever acted in a manner that endangered plaintiff or anyone else. Nor was there any indication that on the day in question, Lucy had been doing anything other than sitting at defendant's feet prior to the moment when the dog apparently stood from that position and began to follow plaintiff back to her seat on the couch. We reject plaintiff's claim that there were disputed issues of fact that required the judge to deny defendant's motion.

We turn to the issue of whether, as a matter of law, defendant was entitled to summary judgment. As a preliminary matter, we note that plaintiff does not claim defendant had a duty to have secured the dogs in another room during her visit. Instead, she more narrowly claims that defendant had a duty to warn her that the dogs were unruly or excitable. Although plaintiff argues that defendant had absolute liability for the conduct of her dogs, she cites no authority to support that proposition and we will not discuss it further. R. 2:11-3(e)(1)(E).1 We conclude that any duty defendant may have had on the day in question should be evaluated under traditional concepts of landowner liability.

A landowner's duty to a person on her property is defined by that person's status as a business visitor (invitee), social guest (licensee), or trespasser. Parks v. Rogers, 176 N.J. 491, 497 (2003). The duty that a host owes to a social guest concerning the condition of the property is limited. Tighe v. Peterson, 356 N.J. Super. 322, 325 (App. Div.), aff'd, 175 N.J. 240 (2002). "A landowner is not required to provide greater safety on his premises for a social guest than he would for himself." Parks, supra, 176 N.J. at 497-98. "[T]he 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." Id. at 498.

A host has a duty to warn a social guest of a dangerous condition on the property only when the host has actual knowledge of a dangerous condition of which the guest is unaware. Tighe, supra, 356 N.J. Super. at 325. "Where a guest is aware of the dangerous condition or by a reasonable use of his [faculties] would observe it, the host is not liable." Id. at 326 (quoting Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997)) (internal quotation marks omitted).

In Tighe, supra, 175 N.J. at 241, the Supreme Court affirmed a grant of summary judgment, holding that the host had no legal duty to warn his social guest of a known dangerous condition where the guest was "aware of the condition[.]" Specifically, the Court concluded, on the facts presented, that the defendant was not required to warn the plaintiff, who was his brother-in-law, of the depth configuration of his pool where the plaintiff dove into the shallow end, and was injured. Id. at 241-42. The plaintiff in Tighe had been to the defendant's home many times, and was familiar with the pool, as he had been in the pool approximately twenty times. Id. at 241. Because the plaintiff knew where the shallow and deep portions were situated, and that he should not dive into the shallow end, the homeowner had no duty to warn him not to dive into the shallow end of the pool. Ibid.

Like the plaintiff in Tighe, plaintiff here had a close relationship with defendant, and had been to her home many times. And, like the plaintiff in Tighe, who was familiar with the varying depths and layout of the defendant's pool, plaintiff was familiar with defendant's dogs, their demeanor, and the fact that they could move, and were frequently "in the way" and "wanted to be the center of attention."

As the plaintiff in Tighe who was aware he should not dive into shallow water, plaintiff here knew a dog was present and that the dog might move from where it was sitting. Because plaintiff was aware of the dog's presence in the home, and in the specific room where plaintiff was situated, defendant had no duty to warn her that the dog might move, as this was a readily observable condition of which plaintiff had knowledge. Moreover, in light of plaintiff's concession that Lucy had been acting "fine" during plaintiff's entire visit, there was nothing about the dog's behavior that could have triggered any duty on the part of defendant to warn plaintiff that she should be especially careful about the dog. We therefore conclude that under the facts presented, there was no duty to warn plaintiff, who was a social guest, that the dog Lucy posed any danger to plaintiff.

For the first time in her reply brief, having abandoned her argument of absolute liability, plaintiff has asserted she was not a "social guest" on the day she was injured, but should be treated as an "invitee" because she was in the home to "perform a service" by helping defendant recuperate from surgery. While a higher duty is owed to an invitee than to a social guest, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993), the "only additional obligation" owed to an invitee with respect to dangerous conditions is to "exercise reasonable care to discover them." Pearlstein v. Leeds, 52 N.J. Super. 450, 459 (App. Div. 1958), certif. denied, 29 N.J. 354 (1959). Beyond that, the duty is the same: "to exercise reasonable care to make the condition reasonably safe or to give a warning adequate to enable avoidance of the harm." Ibid. (emphasis in original). Ordinarily, this obligation will not exist where the invitee knows of the condition and realizes it. Ibid.

We reject plaintiff's argument that she should be treated as an invitee because she was at defendant's home to render assistance to defendant after her surgery. The fact remains that the two women had been friends for fifteen years, and plaintiff was there to do what any good friend would do when another is in need, namely, help her friend. Nothing in those circumstances warrants the conclusion that plaintiff was a business invitee. However, even if we were to treat plaintiff in that fashion, we would nonetheless conclude that defendant was under no duty to warn plaintiff of the dogs, where plaintiff admits she was aware Lucy was present, and the record demonstrates there was nothing about Lucy's behavior before plaintiff fell that would have created a need to have warned plaintiff to avoid the dog. We therefore affirm the motion judge's grant of summary judgment to defendant.

We turn to the judge's denial of plaintiff's motion for reconsideration. Reconsideration is a matter within the sound discretion of the trial court that should be exercised in the interest of justice. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (1990) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257, 263 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). A litigant should not seek reconsideration of a judgment merely because of dissatisfaction with a decision of the court. Ibid. The preferred course is to seek relief by means of a notice of appeal. Ibid.

Reconsideration should only be granted in cases that fall into "a narrow corridor" where either: (1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious the court did not consider, or failed to appreciate the significance of probative, competent evidence. Ibid. This court reviews the trial court's decision for an abuse of discretion under an arbitrary, capricious or unreasonable standard of review. Ibid.

So viewed, the denial of plaintiff's reconsideration motion was proper. The court did not err in its initial grant of summary judgment, nor did the judge overlook any facts in the record. Plaintiff presented no meritorious basis for the granting of reconsideration, and the judge correctly denied the motion.

A

1 We note that absolute liability applies in instances of a dog bite, N.J.S.A. 4:19-16, but that is not at issue here.