CHRISTINE SPELLMAN v. THERESA KOSENSKI

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                      APPROVAL OF THE APPELLATE DIVISION
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        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3381-16T3


CHRISTINE SPELLMAN,

        Plaintiff-Appellant,

v.

THERESA KOSENSKI and PLYMOUTH
ROCK ASSURANCE,1

     Defendants-Respondents.
________________________________

              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.
              L-2086-15.

              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
              brief).



1
     Incorrectly designated as "Plymouth Rock Assurance Company."
PER CURIAM

      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

of compensation.

      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


2
    Kosenski is plaintiff's mother.
3
  On the date of plaintiff's accident, Kosenski was insured under
a homeowners policy issued by Plymouth.

                                  2                          A-3381-16T3
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

condition.

     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.



                                        3                                    A-3381-16T3
     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

Servs., 
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


4
   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.

                                4                           A-3381-16T3
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,

463 (2010)).

      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, 
200 N.J.
 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



                                     5                                A-3381-16T3
           may be personal as well as for the owner's
           benefit.

           [Ibid.]

"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.

at 434.

     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

purpose.

     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


                                 6                          A-3381-16T3
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
                  5
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



5
   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.
Div. 1994).

                                        7                                    A-3381-16T3
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.

2002).

     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




                                         8                                 A-3381-16T3
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.

     Affirmed.




6
   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.

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