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Bagnana v. Wolfinger

April 21, 2006

MARY ANN BAGNANA, PLAINTIFF-APPELLANT,
v.
JENNIFER WOLFINGER AND FREDERICK WOLFINGER, DEFENDANTS-RESPONDENTS, AND JUMPKING, INC., DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, L-437-01.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 6, 2005

Before Judges Wefing, Wecker and Graves.

This case concerns the duty owed by homeowners to a social guest. Plaintiff*fn1 Mary Ann Bagnana and her husband had been "double jumping"*fn2 on defendants' fourteen-foot diameter trampoline when she suffered serious injuries to her right knee. In her complaint, plaintiff alleged defendants*fn3 knew their trampoline was dangerous----especially if used by two people at the same time----and she claimed defendants negligently "failed to warn" her of the dangerous condition, "failed to remove" the dangerous condition, and "failed to maintain the premises in a safe and reasonable fashion." Preliminarily, we note that our research has not disclosed any reported New Jersey decision addressing a homeowner's duty to a social guest injured while using the homeowner's trampoline.

In their motion for summary judgment, defendants argued they did not breach any duty owed to plaintiff because she was aware of the dangers involved in using their trampoline. The trial court agreed that plaintiff was aware of the "inherent" dangers associated with using defendants' trampoline and granted summary judgment dismissing plaintiff's complaint. Because we conclude a reasonable jury could find defendants knew or should have known that their trampoline posed an unreasonable risk of danger to plaintiff, that the risk was not obvious, that plaintiff was unaware of the danger, and that defendants failed to either disclose or remove the danger, we reverse.

It is undisputed that plaintiff was an invited guest at defendants' backyard barbecue. In such circumstances, if defendants knew or had reason to know that the use of their trampoline would expose their guest to an unreasonable risk of harm of which she was not aware, then defendants were obligated to exercise reasonable care to correct the condition or warn their guest of the danger. Restatement (Second) of Torts § 342 (1965). 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 v. Rogers, 176 N.J. 491, 494 (2003). A landowner, however, "is not required to provide greater safety on his premises for a social guest than he would for himself.

For example, the landowner does not have a duty to scour the premises to discover latent defects." Id. at 498.

In some cases, when it is abundantly clear that the risk of danger is open, obvious, and easily understood, there may be no duty to warn. See, e.g., Tighe v. Peterson, 175 N.J. 240, 241 (finding defendants had no duty to warn plaintiff of the danger of diving into the shallow end of their swimming pool), aff'g o.b., 356 N.J. Super. 322 (App. Div. 2002); Longo v. Aprile, 374 N.J. Super. 469, 475 (App. Div. 2005) (finding landowners did not breach duty of care by failing to warn neighbor, a social guest, who was working alone on defendants' roof, eight feet above ground, because the danger that neighbor encountered was self-evident); Endre v. Arnold, 300 N.J. Super. 136, 143 (App. Div.) (noting that alleged defects in stairway were obvious and, even if dangerous, "no reasonable fact finder could conclude that the decedent was unaware of those conditions."), certif. denied, 150 N.J. 27 (1997).

On the other hand, when a plaintiff is unfamiliar with the premises, and therefore unaware of the dangerous condition or situation, then summary judgment based on lack of a duty to warn is less likely. See, e.g., Parks, supra, 176 N.J. at 502-03 (reversing summary judgment in favor of homeowners where plaintiff, who fell down the stairs during her first visit to defendants' house, did not realize "the handrail did not extend the full length of the stairway . . . ."); Sussman v. Mermer, 373 N.J. Super. 501, 507-08 (App. Div. 2004) (finding a genuine issue of material fact existed as to whether plaintiff, who was injured while exiting defendants' home from the front porch, had ever used the front porch previously); Campbell v. Hastings, 348 N.J. Super. 264, 266, 269-272 (App. Div. 2002) (reversing summary judgment in favor of defendant homeowner where plaintiff, who had never been in defendant's home before, "fell into" a sunken foyer).

Trial courts must "employ a fact-sensitive analysis when determining whether a host has fulfilled his or her duty to warn a particular guest" of a known dangerous condition on the premises. Tighe, supra, 175 N.J. at 241. In the present case, defendant Jennifer Wolfinger testified that when she purchased the trampoline, she received a "Users Manual," and she acknowledged reading the manual. The manual, which plaintiff submitted to the trial court in opposition to defendants' summary judgment motion, states that "[i]t is the responsibility of the owner to insure that all users of this trampoline are adequately informed of all warnings and safety instructions." And the Users Manual provides the owner of the trampoline with this general warning:

WARNING

USING THIS TRAMPOLINE EXPOSES YOU TO THE RISK OF SERIOUS INJURY, INCLUDING PERMANENT PARALYSIS OR EVEN DEATH FROM LANDING ON THE BACK, NECK OR HEAD. THIS RISK EXISTS ...


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