NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3381-16T3
THERESA KOSENSKI and PLYMOUTH
Submitted June 5, 2018 - Decided June 27, 2018
Before Judges Reisner and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No.
Raymond S. Gurak, attorney for appellant.
Law Offices of Debra Hart, attorneys for
respondent Theresa Kosenski (Steven
Greenberg, of counsel and on the brief).
McDermott & McGee, LLP, attorneys for
respondent Plymouth Rock Assurance (Richard M.
Tango, of counsel; Michael W. Cartelli, on the
Incorrectly designated as "Plymouth Rock Assurance Company."
Plaintiff Christine Spellman appeals from a February 27, 2017
order granting summary judgment in favor of defendant Theresa
Kosenski (Kosenski)2 and a March 15, 2017 order dismissing the
complaint, with prejudice, as to defendant Plymouth Rock Assurance
(Plymouth).3 We affirm.
The following facts are undisputed. On June 10, 2013,
plaintiff, while visiting her mother for lunch, fell down a set
of exterior stairs at Kosenski's house. Plaintiff sustained an
ankle fracture requiring surgery.
Based on her injuries, plaintiff filed suit against her mother
and her mother's insurer Plymouth. Plaintiff's complaint alleged
negligence against Kosenski and bad faith against Plymouth for
refusing to assess plaintiff's claim or make any reasonable offer
Plaintiff testified during her deposition that she went to
her mother's house for lunch on the day of the accident. Plaintiff
recalled leaving by the kitchen door to return to work. Plaintiff
was unable to remember anything from the time she walked to the
door to exit her mother's home to when she woke on the pavement
Kosenski is plaintiff's mother.
On the date of plaintiff's accident, Kosenski was insured under
a homeowners policy issued by Plymouth.
at the bottom of the stairs with pain in her head and ankle.
Plaintiff also testified that the top step of the exterior stairs
was "a little higher than the other steps," she knew the top step
was higher, and she had walked down the exterior steps many times
before the incident.
After the completion of discovery, Kosenski moved for summary
judgment and Plymouth moved to dismiss the complaint. In support
of summary judgment, Kosenski argued plaintiff failed to prove she
was negligent or that she knew, or should have known, that the top
step presented a dangerous condition. Kosenski also claimed
plaintiff had no expert report identifying the step as a dangerous
Plaintiff filed an affidavit in opposition to Kosenski's
motion. In her affidavit, submitted well after her deposition,
plaintiff explained she may have fallen due to the height
difference in the top step and because she was wearing new sneakers
on the day of the accident.
In its motion to dismiss, Plymouth argued plaintiff's belated
recollection, three years after the accident, that the new sneakers
must have caused her fall, precluded any finding that Plymouth
acted in bad faith by denying plaintiff's claim absent a
determination that the insured was negligent.
In a written opinion, the motion judge found plaintiff was a
social guest, not a business invitee. He also noted plaintiff
knew the top step was higher than the other steps, and that
plaintiff did not know what caused her to fall. The judge found
plaintiff failed to prove that her mother was negligent.4
On appeal, plaintiff argues the judge erred in granting
summary judgment in favor of Kosenski. Specifically, plaintiff
claims the judge mistakenly concluded plaintiff was a social guest,
instead of an invitee, and there were questions of material fact
as to Kosenski's negligence. Additionally, plaintiff argues the
dismissal of the complaint against Plymouth was not part of the
judge's original ruling, and must be reversed.
We review a grant of summary judgment de novo, applying the
same standard as the trial court. Henry v. N.J. Dep't of Human
204 N.J. 320, 330 (2010). Summary judgment must be granted
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
and that the moving party is entitled to a judgment or order as a
After ruling on Kosenski's motion, the judge denied Plymouth's
motion as moot. Plymouth wrote to the judge, explaining that the
court's ruling left the matter unresolved as to the bad faith
claim. Based upon the motion judge's determination that Kosenski
was not negligent, he subsequently dismissed plaintiff's bad faith
claim with prejudice.
matter of law." R. 4:46-2(c). See also Brill v. Guardian Life
Ins. Co. of Am.,
142 N.J. 520, 540 (1995). The "trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference."
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369,
382 (2010) (quoting City of Atlantic City v. Trupos,
201 N.J. 447,
To prove negligence, a plaintiff must demonstrate: (1) a duty
of care, (2) breach of that duty, (3) proximate cause, and (4)
injury. Townsend v. Pierre,
221 N.J. 36, 51 (2015). A plaintiff
bears the burden of proving negligence. Khan v. Singh,
82, 91 (2009). "Premises liability is a subset of general
negligence law." Peguero v. Tau Kappa Epsilon Local Chapter,
439 N.J. Super. 77, 88 (App. Div. 2015).
The duty of a landowner to a person who has been injured
because of a dangerous condition on private property is based on
the status of the person at the time of the injury. Hopkins v.
Fox & Lazo Realtors,
132 N.J. 426, 433 (1993).
An owner or possessor of property owes a
higher degree of care to the business invitee
because that person has been invited on the
premises for purposes of the owner that often
are commercial or business related. A lesser
degree of care is owned to a social guest or
licensee, whose purposes for being on the land
may be personal as well as for the owner's
"Only to the invitee . . . does a landowner owe a duty of reasonable
care to guard against any dangerous conditions on [the] property
that the owner either knows about or should have discovered." Id.
Plaintiff claims she provided assistance and benefits to her
mother and therefore was an invitee. The judge found plaintiff
was a social guest because the activities she performed were not
commercial or business in nature. He concluded that the familial
relationship between the parties evidenced the status of plaintiff
as a social guest rather than an invitee.
We find the judge properly applied the law in determining
that plaintiff was a social guest. On the day of the accident,
plaintiff went to her mother's house to have lunch, as she did two
or three times every week. While plaintiff also ran errands and
otherwise assisted her mother, she was not hired for that specific
Regardless of whether plaintiff was a social guest or an
invitee, plaintiff's claims fail because she was unable to meet
her burden of proving Kosenski was negligent. Plaintiff failed
to show either that Kosenski knew or should have known the height
discrepancy of the top step. Plaintiff also failed to establish
that the step height constituted a "dangerous condition."
Plaintiff provided no expert testimony demonstrating that the
height difference between the steps constituted a dangerous
condition or caused the accident.
Turning to plaintiff's claim that material disputed facts
precluded summary judgment, we consider plaintiff's affidavit in
opposition to Kosenski's motion for summary judgment. Where a
party presents an affidavit that is inconsistent with the party's
prior sworn discovery responses, the sham affidavit doctrine may
be applicable. Shelcusky v. Garjulio,
172 N.J. 185, 201 (2002).
The sham affidavit doctrine "requires a court to evaluate whether
a true issue of material fact remains in the case notwithstanding
an affiant's earlier deposition testimony." Ibid. A trial court
"should not reject alleged sham affidavits where the contradiction
is reasonably explained, where an affidavit does not contradict
patently and sharply the earlier deposition testimony, or where
confusion or lack of clarity existed at the time of the deposition
Although the judge did not expressly base his decision on the
self-serving nature of plaintiff's affidavit, we are free to agree
with the trial court's decision for reasons other than those
expressed by the judge. We affirm or reverse orders, not reasons.
See Isko v. Planning Bd. of Livingston,
51 N.J. 162, 175 (1968);
Walker v. Briarwood Condo Ass'n,
274 N.J. Super. 422, 426 (App.
questioning and the affidavit reasonably clarifies the affiant's
earlier statement." Id. at 201-02.
During her deposition, plaintiff claimed she had no memory
of the accident. Three-and-a-half years after the accident, and
four months after her deposition, plaintiff recalled that she was
wearing new sneakers on the day of her mishap. According to her
affidavit, the wearing of new sneakers, coupled with the height
discrepancy of the top step, caused plaintiff to "believe" that
the bottom of her shoe got caught on the top step and caused her
to fall down the stairs.
Plaintiff's belated affidavit sets forth her theory as to the
reason for her fall. Plaintiff does not claim to recollect what
happened on the day of the accident. Thus, we find that
plaintiff's self-serving and speculative assertions in her
affidavit failed to create a question of material fact, and the
judge properly granted Kosenski's summary judgment motion. Martin
v. Rutgers Cas. Ins. Co.,
346 N.J. Super. 320, 323 (App. Div.
We next examine whether the judge properly dismissed
plaintiff's claim against Plymouth. Plaintiff argues Plymouth
acted in bad faith by not properly assessing her personal injury
claim or offering reasonable compensation for her injury.6
Plymouth moved to dismiss plaintiff's bad faith claim, arguing
that absent a finding of negligence by its insured, plaintiff
could not sustain a claim for bad faith. The judge agreed and
granted Plymouth's application.7
We agree with the motion judge that plaintiff's claim for bad
faith against Plymouth lacked any legal basis once the judge found
that Plymouth's insured, Kosenski, was not negligent.
Plaintiff's bad faith claim is premised on Rova Farms Resort,
Inc., v. Inv'rs. Ins. Co. of Am.,
65 N.J. 474, 496 (1974).
7 In his March 15, 2017 order, the judge noted the claims against
Plymouth were dismissed "[f]or the reasons set forth by the [c]ourt
on the record on [March 3, 2017]." Plaintiff did not provide the
March 3, 2017 transcript.