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Cummings v. Bahr

December 3, 1996


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

Approved for Publication December 6, 1996.

Before Judges Muir, Jr., *fn1 Kleiner, and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by


Plaintiffs Cynthia Cummings and John Cummings, suing per quod, appeal from the denial of their second motion for reconsideration of a prior decision which granted summary judgment to defendant Madeline Bahr. *fn2 Our decision, affirming the Law Division, is predicated upon the theory of judicial estoppel and its interrelationship with R. 4:49-2.


Defendant, Madeline Bahr, is the widow of Harvey Bahr, who died of cancer in early 1992. Prior to the diagnosis of his fatal illness, Mr. Bahr performed all of the gardening chores on the ten-acre plot surrounding the family home. These chores included tending to rose bushes, planting fig trees, and cultivating grapevines. After Mr. Bahr became ill, he prepared a list of chores which still needed to be attended to on the property. Mr. Bahr had recently acquired some new fig trees and grapevines but had not had the opportunity to plant them formally. One of the tasks on Mr. Bahr's list of chores was the planting of these recent acquisitions.

On April 5, 1992, plaintiff Cynthia Cummings, accompanied by two friends, visited her mother Mrs. Bahr, the defendant. The primary purpose of that visit is in dispute.

Plaintiff contends that she visited her mother for the primary purpose of moving the fig trees and grapevines from where they had been placed by her father to the location where each tree or grapevine was to be permanently planted. As a secondary matter, she was going to partake in a spaghetti dinner. Upon her arrival at her mother's house, plaintiff and her friends were invited in, and refreshments were served. Later, defendant, plaintiff, and plaintiff's two friends walked to the rear of the property where the fig trees and grapevines had been temporarily placed. Although plaintiff had lived with her parents on this property, she had not visited this rear area since moving away in 1974.

Defendant contends that plaintiff, whose husband and children were out of town, was invited to her home primarily for dinner. After dinner, defendant accompanied her daughter and her daughter's two friends to the rear of the property to inspect the fig trees and grapevines to ascertain whether it was feasible to move them.

To reach the rear of the property, the foursome was required to walk through an unkempt, grassy area described by plaintiff as being, more or less, "like a meadow." While the area is not wooded, plaintiff stated in her deposition that there were fruit trees planted in the area. Although the grass in the rear of the home had been regularly cut by Harvey Bahr prior to his final illness, it had not been maintained after his death. The grass was approximately three or four inches high on that afternoon.

While walking in this area, plaintiff's foot became entangled in a "rose runner," or "green rose cane," which was hidden under the grass. Plaintiff, unable to untangle her leg, fell and suffered severe leg injuries including two fractures of her right ankle.

Plaintiff's complaint, filed April 4, 1994, alleged that

defendant was negligent in maintaining the property and in failing to warn her of the deteriorated condition of the rear yard including "ground tree roots." The words "invitee," "licensee," or "social guest" are not contained in the complaint. There is, in fact, no allegation or Discussion of plaintiff's status on the land within the complaint. Defendant's answer consisted of a general denial of plaintiff's allegations and several separate defenses but did not specifically refer to plaintiff's status.

Defendant filed a motion for summary judgment, returnable December 1, 1995. In the brief in support of her motion, defendant, relying on Snyder v. I. Jay Realty Co., 30 N.J. 303, 153 A.2d 1 (1959), asserted that plaintiff was a social guest at defendant's home and, as such, was a licensee. Defendant also cited Berger v. Shapiro, 30 N.J. 89, 152 A.2d 20 (1959), which describes the duty owed by a landowner to a licensee:

A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he

(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and

(b) invites or permits them to enter or remain upon the land, without exercising reasonable care

(i) to make the conditions reasonably safe, or

(ii) to warn them of the condition and the risk involved therein.

[ Id. at 99 (quoting Restatement of Torts § 342).]

Defendant also relied, in part, on defendant's deposition testimony indicating that her deceased husband maintained the grounds in the rear of her home, that she rarely frequented the rear ground, and had not personally maintained that area after her husband's death. Defendant contended that she was unaware that rose ...

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