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Sussman v. Mermer

December 21, 2004

STANLEY J. SUSSMAN AND MARCY B. SUSSMAN, PLAINTIFFS-APPELLANTS,
v.
ROBERT WAYNE MERMER AND MARY MERMER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5700-00.

Before Judges Skillman, Parrillo and Grall.*fn1

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued November 18, 2004

Plaintiff, Stanley J. Sussman, appeals from a summary judgment dismissing his personal injury negligence complaint against defendants, Robert and Mary Mermer.*fn2 We reverse and remand, finding a genuine issue of material fact as to whether defendant-homeowners' conduct breached the standard of care.

Viewing the evidence most favorably to plaintiff, R. 4:46- 2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts are as follows. On the evening of June 21, 2000, defendants hosted a graduation party for their son at their Cherry Hill home. They had invited plaintiff, who lived around the corner, close to the back of their home. Plaintiff arrived at the party at about 8:00 p.m., entering through the back door, and stayed for two or three hours. Upon leaving the party, plaintiff, unaccompanied, exited via the front door, descending one step onto an exterior porch and then down another step leading to a cement pathway. However, as he descended the second step, plaintiff slipped and fell to the ground, fracturing his right elbow.

It was dark outside at the time. Although the porch is illuminated by two motion-activated 100-watt light fixtures positioned on either side of the front door, the lights had not been turned on when the accident occurred, and no warnings were given. And while plaintiff had visited defendants' home on at least three or four previous occasions to celebrate family events, he does not recall ever walking onto the front porch.

Plaintiff's expert, a professional engineer, inspected the area of the fall. He concluded that the porch-walkway setup was a hazardous condition and in violation of building codes, citing inadequate lighting, dimensionally non-uniform steps, and the lack of a railing or handrail. Despite the expert's report, which was the subject of an unsuccessful defense motion in limine to suppress, the motion judge ultimately granted summary judgment in favor of defendants, reasoning:

Plaintiff's expert indicates in his report the defendants' property was hazardous because of inadequate lighting, steps that were dimensionally non-uniform and single step separated by platforms in lieu of ramps, however plaintiff had been to the home before and was a neighbor of the defendants. Defendants owe no greater duty to the plaintiff as a social guest than they do for themselves.

Further, plaintiff has some responsibility... where he... says that he cannot see a step. The step was not in a place it would not be expected. That is, it was a step coming off of a porch. It was a single step. It's not related to the other step so there's no question that they should be uniform.

There was nothing inherently hazardous in the area. [A]s a social guest the owner of the property is not a guarantor of... a social guest's safety and, therefore, the Court finds that there are no genuine issues of material fact and the motion is granted. On appeal, plaintiff contends that the facts are sufficiently contested as to foreseeable harm and whether the standard of reasonable care has been breached to preclude summary judgment. We agree.

Under the common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest, or business invitee. Parks v. Rogers, 176 N.J. 491, 497 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34 (1993); Synder v. I. Jay Realty Co., 30 N.J. 303, 311-12 (1959). Here, the motion judge considered plaintiff to be defendants' social guest. According him that status under the common law, defendants should have warned plaintiff of any dangerous condition known to them and unknown to plaintiff. Hopkins, supra, 132 N.J. at 434; Campbell v. Hastings, 348 N.J. Super. 264, 267 (App. Div. 2002); Hanna v. Stone, 329 N.J. Super. 385, 389 (App. Div. 2000). In other words,"a homeowner has a duty to warn the unwary social guest of a condition of the premises that the homeowner knows or has reason to know creates an unreasonable risk of injury." Parks, supra, 176 N.J. at 494. Of course, if"the guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable" because of the guest's failure to use due care. Berger v. Shapiro, 30 N.J. 89, 99 (1959).

The common law on premises liability in New Jersey, however, has undergone transition toward"a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others." Hopkins, supra, 132 N.J. at 435-36 (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 277 (1982)); see also, Campbell, supra, 348 N.J. Super. at 268. Although the common law premises liability rules continue"to provide guidance in determining whether a duty of reasonable care should be imposed in particular circumstances[]", Ocasio v. Amtrak, 299 N.J. Super. 139, 149 (App. Div. 1997), the task now is to consider all the surrounding circumstances to determine whether it is fair and just to impose upon the landowner a duty of reasonable care commensurate with the risk of harm. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509 (1996). In assessing whether imposition of such a duty would be fair and just, courts weigh and balance the following four factors: (1) the relationship of the parties, (2) the nature of the attendant risk, (3) the opportunity and ability to exercise care, and (4) the public interest in the proposed solution. Hopkins, supra, 132 N.J. at 439; Ocasio, supra, 299 N.J. Super. at 149-50; Campbell, supra, 348 N.J. Super. at 269.

Measured by this standard, we conclude sufficient foreseeable harm was present to raise a jury question regarding defendants' breach of the obligation to exercise reasonable care. In this regard, negligence can occur from failure to light premises"to protect from injury by reason of dangerous conditions which would not reasonably be discovered in the absence of such light, as for example, in the case of the... difference in floor levels." Campbell, supra, 348 N.J. Super. at 270-71 (internal citations ...


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