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Kingett v. Miller

February 06, 2002

DELZON L. KINGETT AND JANE KINGETT, PLAINTIFFS-APPELLANTS
v.
THOMAS L. MILLER, ESQ. DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L- 1305-99.

Before Judges Newman, Fall and Axelrad.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 24, 2002

In this business invitee slip-and-fall case, plaintiffs, Delzon L. Kingett and Jane Kingett, appeal from an order granting summary judgment in favor of defendant, Thomas L. Miller, Esquire, dismissing their complaint.

Plaintiffs, Delzon Kingett, a sixty-five year old man and his wife Jane went to defendant's law office to execute their wills. They entered the office through the front door. As it was raining heavily that day, Mr. Kingett asked the receptionist if he and his wife could exit through the side door because it was closer to where his car was parked. The receptionist replied, "Okay, but be careful." Mr. Kingett quipped, "if I fall, I'll sue." As he stepped onto the stairs, he noticed they were steep with narrow treads and there were no handrails. He turned to warn his wife who was right behind him, lost his balance, slipped, fell and severely injured himself.

The motion judge granted summary judgment in favor of defendant, stating, in pertinent part:

The question is what's the duty of the defendant to this plaintiff.

The duty that is owed to this plaintiff by this defendant is a duty to exercise reasonable care, to make the premises reasonably safe, or give warning of a dangerous condition.

There is absolutely no question but that the receptionist, in turning to the gentleman and saying, "okay, but be careful," discharges the duty to give a warning.

It's a perfectly adequate warning. There is . . . nothing in the record to support the suggestion that's made . . . that the verbal warning isn't good enough, that we needed a sign or a flag or, you know, somebody helping the gentleman down the step.

Certainly, on this record, there's simply no issue for the jury to try. Even if . . . the stairs are dangerous, which is only admitted for the purposes of the motion, turning and saying to the gentleman, "okay, but be careful," is a sufficient warning [of a dangerous condition].

On appeal, plaintiffs assert that the motion judge erred when she ruled that, as a matter of law, defendant discharged his duty to plaintiffs with the simple warning, "be careful." We agree and conclude that under these circumstances, whether the warning is adequate to discharge the duty owed by defendant to his business invitees is a jury question.

A landowner's duty to a business invitee to exercise reasonable care in guarding against a dangerous condition may be satisfied by either correcting the condition, or, in those circumstances where it is reasonable to do so, by giving warning to the invitee of the unsafe condition. Berrios v. United Parcel Serv., 265 ...


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