On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1460-99.
Before Judges Conley, Lefelt and Lisa.*fn1
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 03/08/02
Submitted February 6, 2002
Plaintiff Mary Jane Campbell, a 75-year old woman, visited a friend Hastings had no obligation to warn his visitor. Campbell appeals, and we Hastings' home and sued for her injuries. The motion judge granted defendant summary judgment, concluding that a poorly illuminated, sunken foyer into which Campbell fell was not a dangerous condition, and therefore reverse and remand. who was living in d
efendant Victor Hastings' house. Campbell fell while in
The pertinent facts and procedural history can be briefly stated. Campbell arrived at Hastings' home shortly before dark, entered through the front door into a sunken foyer and proceeded to the back of the foyer and up two steps into the family room. After viewing some photographs and visiting for about an hour with her friend, Hastings escorted Campbell through the kitchen and into the living room to look at paintings and other collectibles. Defendant then took plaintiff through a different pathway, into the same sunken foyer. It was dark outside and the light in the foyer had not been turned on. Hastings did not mention that there were two steps leading down to the foyer, and as Campbell stepped forward, she fell into the sunken foyer.
The common law regarding premises liability was applied by the motion judge. This law requires various degrees of care depending upon the visitor's status while on the owner's or occupier's land. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34 (1993). Under this law, the owner/occupier owes increasing care depending upon whether the visitor is a trespasser, licensee or social guest, invitee or business invitee. Ibid.
The motion judge considered Campbell to be Hastings' social guest. The parties have not supplied those portions of the record that may describe Campbell's or Campbell's friend's relation to Hastings. While not positive on this record, Campbell probably was not a business invitee, requiring the highest standard of care, id. at 433, or a trespasser, requiring a lesser standard of care under the common law. Ibid. She appears to be most likely a licensee or social guest, as determined by the motion judge.
According Campbell the status of licensee or social guest under the common law, Hastings should have warned Campbell of any dangerous conditions known to him and unknown to Campbell. Id. at 433; Hanna v. Stone, 329 N.J. Super. 385, 389 (App. Div. 2000). Because of this duty, the motion judge searched for a dangerous condition, and according to the judge, found none. The judge said "it's part of somebody's household and their household because they don't have a light on doesn't make part of their household a dangerous area or this foyer a dangerous condition." Not believing the sunken foyer to be a dangerous condition, the judge concluded that no duty to warn ever arose, under the common law, and dismissed Campbell's complaint on Hastings's summary judgment motion.
There are recent Florida cases directly supporting the motion judge's decision. In Rice v. Whitehurst, 778 So.2d 1027 (Fla. App. 4 Dist. 2001), for example, plaintiff fell into a sunken living room. On appeal, the judge held that absent evidence that the home's sunken living room was of uncommon design or unusual construction, or created significant optical illusion, defendant homeowner was not liable for injuries sustained by plaintiff-guest. Id. at 1028. In Allen v. Young, ___ So.2d ___, 2002 WL 84239 (Fla. App. 4 Dist. 2002), the court concluded ...