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Monheit v. Rottenberg

November 27, 1996


On appeal from Superior Court of New Jersey, Law Division, Ocean County.

Approved for Publication December 6, 1996.

Before Judges Shebell, Baime and P.g. Levy. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by


Plaintiff Samuel Monheit was injured when he fell while inspecting a partially constructed townhouse in a development in which he was about to purchase a unit. The developer, Aaron Rottenberg, trading as Ked Mai, Inc., expressly had invited plaintiff onto the property to determine what features he wished to have incorporated into his future residence. However, an employee of K & G Masons, Inc. who was working at the site warned plaintiff not to enter the structure because the mason was digging drainage pits in the basement. Plaintiff disregarded this warning and fell into a drainage hole. Plaintiff brought suit to recover damages for the injuries sustained, and his wife sued for loss of consortium. The jury found that plaintiff was thirty-five percent negligent, Rottenberg and Ked Mai were forty-five percent negligent, and K & G Mason, Inc. was twenty percent negligent. The jury awarded plaintiff gross damages of $50,000 but rejected his wife's per quod claim. Plaintiffs moved for a new trial on damages only or for an additur. Defendant cross-moved for a judgment notwithstanding the verdict or for a new trial on liability only. The trial court granted Rottenberg's motion in his individual capacity, but denied the remaining applications. Plaintiffs appeal, contending that the jury's award was inadequate. Ked Mai cross-appeals, arguing that the trial court erred by refusing to submit to the jury the question whether plaintiff was a trespasser at the time of the accident. We affirm.


We need not recount the facts at length. In October 1990, plaintiff and Rottenberg engaged in negotiations for the purchase of a townhouse in one of Ked Mai's developments. The Monheits and Rottenberg were members of the same Orthodox Hasidic Community. It soon became apparent that a sale would be consummated. At Rottenberg's behest, the Monheits visited the construction site on several occasions in early November. Rottenberg would typically meet the Monheits at the site and personally show them the different units. Access to the unfinished units was either by way of a ladder through a space corresponding to the front door or down the basement steps.

Plaintiff and Rottenberg met sometime between November 14 and November 16, 1990. Although a contract had not been signed, Rottenberg wanted the Monheits to examine the unfinished units to determine exactly what features they wished to have incorporated into their future residence. Rottenberg noted that there were workers at the site and invited the Monheits to inspect the property "at noontime" on the following day.

Although the evidence was somewhat conflicting, it appears that Gene Applegate, the principal of K & G Mason, was at the construction site when plaintiff arrived at the appointed hour. Applegate was in the process of preparing drains in the cellar of each townhouse. This involved digging a hole two feet wide and two feet deep at the bottom of each basement stairway, placing black paper in each of the holes, and securing a lining to prevent the paper from rising. Although in the past Rottenberg had instructed Applegate to "chase [people] away" from the site when the holes were being excavated, Applegate was not sure that he had been given that authority on the date of the accident. In any event, Applegate warned plaintiff not to enter the unit because there was a "pit" in the cellar. However, plaintiff disregarded that warning, walked down the basement stairs and fell into the drainage hole, fracturing his right knee cap.

At trial, Ked Mai requested that the question of plaintiff's status on the property be submitted to the jury and that the jury be informed of the minimal degree of care owed by a landowner to a trespasser. The trial court found as a matter of law that plaintiff was a business invitee. In its charge, the trial court stated an owner of land "has the duty to exercise ordinary care to render the premises reasonably safe for the invitee for the purposes for which he comes on the premises." The court added that "where the owner knows of an unsafe condition, he may satisfy his duty by correcting the condition or, in those circumstances where it is reasonable to do so, by giving warning to the invitee [respecting] the unsafe condition." The jury was further instructed it was its responsibility to "determine whether the warning given was adequate to meet the duty owed to the invitee," and in making that determination, it was to "consider the nature of the defect or unsafe condition, the prevailing circumstances and the likelihood that the warning given would be adequate to call attention to the invitee of the hazard and of the need to protect himself against such hazard."

It is against this factual backdrop that we consider the issues raised.


We first consider the questions raised by the cross-appeal. The traditional common law approach to landowner tort liability toward a person who has been injured on private property is predicated on the status of the individual injured. Historically, the duty of the owner is gauged by the right of the injured person to be on the land. That status is determined by which of three classifications applies to the entrant, that of a business invitee, licensee, or trespasser. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433, 625 A.2d 1110 (1993) (citing Snyder v. I. Jay Realty Co., 30 N.J. 303, 311, 153 A.2d 1 (1959)). An owner owes a higher degree of care to the business invitee because that person has entered the property by express or implied invitation and for the purposes of the owner which are often commercial or business related. A lesser degree of care is owed to a social guest or licensee, whose purpose in being on the land may be personal as well as for the owner's benefit. The owner owes a minimal degree of care to a trespasser "who is 'neither invited, suffered, nor privileged' to be on another's property." Handleman v. Cox, 74 N.J. Super. 316, 325, 181 A.2d 366 (App. Div.), aff'd, 39 N.J. 95, 187 A.2d 708 (1963) (quoting State v. Wouters, 71 N.J. Super. 479, 486, 177 A.2d 299 (App. Div. 1962)); see also Hopkins v. Fox & ...

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