On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2319-99.
Before Judges Newman, Fall and Axelrad.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
At issue here is the duty owed by a property owner to the public who are invited to the property where a garage or yard sale is conducted. In granting summary judgment and dismissing plaintiffs' complaint, the trial court found no duty owed to the injured party who fell where there was a three and one-half inch grade difference between the lawn and the sidewalk, which was covered over by grass. We reverse and hold that the property owner owed a reasonable duty of care to the public invited to attend the garage or yard sale to maintain the property in a reasonably safe condition.
The facts are straightforward. Plaintiff, Ruthann Filipowicz (references to plaintiff are to Ruthann Filipowicz only) attended a garage sale at the home of defendants, Linda and Robert Diletto in Hamilton Township. The event was a multi-family sale organized by defendants and their neighbors. Defendants displayed their sales items on tables in the driveway. They also placed clothes on a corner of their front lawn where the driveway intersected with the sidewalk.
The sale began on a clear, dry day at 8:00 a.m. Plaintiff arrived at approximately 10:00 a.m. She parked near defendants' property. Plaintiff first visited the house across the street from defendants' house where she made a purchase. She then walked across the street, up the paved driveway of defendants' house and began browsing through the sales items. Nothing sparked her interest, so she proceeded to the items displayed on the lawn. At that time, someone approached the lawn to re-arrange the clothes on display. Plaintiff moved back, away from the clothes and toward the sidewalk to provide room for that person to work. Plaintiff turned to make sure no one was behind her, and so she would not step on anything. When plaintiff stepped backward she lost her footing and fell. She was wearing sneakers at the time.
Unknown to plaintiff, there was a three and one-half inch drop-off from the front lawn to the sidewalk. The drop-off was not visible to plaintiff from where she stood on the lawn or from where she approached the lawn. She noticed the drop-off only after she fell. According to plaintiff, the grass on defendants' lawn was tall, extended over the sidewalk and camouflaged the drop-off. Defendant Robert Diletto testified at a deposition that he and his wife lived in the house for about four years and were aware that the lawn was elevated above the sidewalk. During that time, he would mow and maintain the front lawn. As part of that maintenance, he would use an edge trimmer every third time he cut the grass.
Mary Grochala, a member of defendants' family, observed plaintiff's fall and went to assist plaintiff, but she declined help. Plaintiff later sought medical attention at a local hospital emergency room and, thereafter, received more extensive treatment, which included surgery.
On May 5, 1999, plaintiff filed suit against defendants alleging that they were negligent in failing to provide a safe walkway or adequate notice of the latent defects of their premises. Plaintiff contends that she has a permanent disability and still suffers from pain. Plaintiff's husband filed a loss of consortium claim.
On October 13, 2000, defendants moved for summary judgment contending that plaintiff could not make a prima facie case of negligence against defendants. Plaintiff opposed the motion arguing that she was an invitee on the premises, that defendants owed a reasonable duty of care to her and that the question of whether defendant breached that duty of care was an issue of material fact for the jury.
In granting defendants' motion for summary judgment, the trial court avoided deciding plaintiff's status as either an invitee or licensee, but concluded that plaintiff failed to carry her burden of proof. The court determined that plaintiff failed to show that the elevation of the lawn constituted an unreasonably dangerous area or condition. The trial court put it this way:
There was no hidden latent defect. There was no dangerous condition created by the manner in which this homeowner managed his lawn, cut his lawn, edged his lawn. And the fact of the matter is though [plaintiff] may have been on the lawn at her own free will and volition looking at items and she decided to back up as opposed to turn around and look or to turn around and go onto the driveway from where she came, nothing barred her from doing that. It is her own behavior that has caused this problem.
There is no duty owed, no dangerous condition. Anyone can fall over anything. And that in and of itself such an argument that it - - it had to be a defect if she fell is like saying that the mere happening of an accident means someone was negligent. That's not so. We're not talking about proximate cause of ...