JAMES STACKHOUSE v. CORTEZ BRYANT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAMES STACKHOUSE,

Plaintiff-Appellant,

v.

CORTEZ BRYANT,

Defendant-Respondent,

and

MICHAEL HAYNES and ODELL STACKHOUSE,

Defendants.

_________________________________________

May 23, 2014

Submitted May 7, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket

No. L-2153-11.

Sacchetta & Baldino, attorneys for appellant (Thomas F. Sacchetta, on the brief).

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Barbara J. Davis, of counsel and on the brief).

PER CURIAM

Plaintiff James Stackhouse appeals from a summary judgment dismissing his premises liability complaint against defendant Cortez Bryant. We affirm.

Viewed in the light most favorable to plaintiff, the facts are as follows. Defendant's son, Michael, invited plaintiff, plaintiff's wife, his two sisters, his brother-in-law, his sister's boyfriend, several nieces and nephews, and a cousin, whom Michael was dating, to swim in defendant's pool. Plaintiff and his family arrived at defendant's home and gathered in the pool area for an informal supper and a swim. Defendant was at work and unaware that his son had invited anyone to use the pool.

About an hour after arriving, plaintiff injured his knee when he slipped on an oily substance on the diving board of defendant's pool. Although several other people had already used the board, no one reported experiencing any problems with the surface. Plaintiff himself had seen two adults as well as his nieces and nephews jump from the board without difficulty. Although people were eating in the pool area, plaintiff had not seen anyone eating or drinking on or around the diving board. He did not observe any posted warnings before using the board. He had, however, used diving boards many times previously and was aware of the attendant risks and the need to use caution. No one else present on the day plaintiff was injured apparently noticed any problems with the board.

Defendant testified at deposition that there had never been any prior incidents involving the diving board. No one had ever fallen or hurt themselves using the board. Defendant had never had it repaired, and no one had ever previously complained about the board or reported that it was slippery. According to defendant, his son was to obtain his permission before inviting anyone to use the pool, which his son failed to do in this instance.

Based on these facts, developed after full discovery, the judge entered summary judgment for defendant and dismissed the complaint. Specifically, the judge found that plaintiff was a social guest in defendant's home, notwithstanding defendant's lack of knowledge as to his presence. But as defendant did not know or have reason to know of any dangerous condition of the diving board, he had no duty to rectify the condition or warn plaintiff of its presence.

On appeal, plaintiff argues that the harm to plaintiff was readily foreseeable, and thus the judge erred in utilizing the traditional common law framework for analyzing premises liability instead of the more flexible approach of Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), and Sussman v. Mermer, 373 N.J. Super. 501 (App. Div. 2004). We disagree.

Under the common law of premises liability, the scope of the landowner's duty to a person on his property is defined by the person's status as a business visitor, social guest, or trespasser. Parks v. Rogers, 176 N.J. 491, 497 (2003). As to social guests such as plaintiff, a homeowner has a duty to warn "of a condition of the premises that the homeowner knows or has reason to know creates an unreasonable risk of injury." Id. at 494. Although our courts continue to apply the common law rules of premises liability, especially, as here, when the plaintiff fits easily into one of the traditional status categories, Estate of Desir ex. rel. Estiverne v. Vertus, 214 N.J. 303, 317 (2013), we are mindful that those categories are undergoing gradual change in favor of "a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others." Hopkins, supra, 132 N.J. at 435.

Accordingly, we also consider the relationship of the parties in light of 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. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509 (1996). In assessing whether imposition of such a duty is appropriate under that standard, courts weigh and balance 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. Hopkins, supra, 132 N.J. at 439. We applied these principles in Sussman to hold that the failure to light a front porch for a social guest, even if plaintiff had previously used the uneven steps, could reasonably present a foreseeable and unreasonable risk of harm. Sussman, supra, 373 N.J. Super. at 507. We held that given the modest effort required to guard against dangers caused by darkness, imposition of a duty in that instance was neither unjust nor unfair. Ibid.

Because plaintiff can point to no evidence in the record demonstrating that defendant, or any member of his family, knew or had reason to know of the oily substance plaintiff encountered on the diving board, we fail to see how plaintiff could prove liability regardless of whether one looks to traditional common law concepts or undertakes a broader consideration of reasonable care commensurate with the risk of harm.1 A homeowner has no duty to warn a social guest of a dangerous condition the homeowner does not know, or should not know, exists. Parks, supra, 176 N.J. at 494. Likewise, while the risks of using a slippery diving board are readily apparent, imposing upon a homeowner a duty to warn of or remediate a transient condition of which he is not aware would be neither fair nor just. See Ocasio v. Amtrak, 299 N.J. Super. 139, 151 (App. Div. 1997) (discussing opportunity and ability to avoid harm). Consideration of all the surrounding circumstances here thus leads to the same result as would application of the traditional rules regarding a landowner's duty to a social guest.

Affirmed.

1 We note that while plaintiff contends that the trial court erred in failing to apply the test identified in Hopkins and applied in Sussman, plaintiff also fails to brief its application or demonstrate how consideration of the four factors it employs would change the outcome here.