On appeal from Superior Court of New Jersey, Law Division, Passaic County, PAS-L-1167-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Graves and Lihotz.
Plaintiffs Renzo Faustino Ferreras and Madeline Ferreras*fn2 appeal from a summary judgment dismissing their personal injury complaint against defendants North Haledon Fire Department (NHFD) and Omar Vasquez. We affirm.
On January 8, 2003, Vasquez rented premises from the NHFD for a surprise birthday party. NHFD frequently rented a portion of its firehouse for parties and other functions as a means of defraying its costs. The rental price was $350. The premises in question constituted a room of indeterminate size with a parquet wood dance floor approximately sixteen feet square. The area surrounding the dance floor was carpeted. The surface of the dance floor was cleaned before every event using a neutral cleaner applied with a mop. The floor was not waxed or buffed. According to the rental agreement, eighty people were to attend the party. There were ten round tables, with eight chairs per the table, which were apparently placed on the carpeted area surrounding the dance floor. In addition, there were several tables somewhere on the periphery of the room from which food was to be served, buffet-style. Drinks, including alcoholic beverages, were also provided for the guests. Plaintiff and his wife were among the invited guests, arriving about 7 p.m. Mrs. Ferreras, who was wearing boots, testified that as she entered the room and walked toward her seat, the floor (referring to the dance floor) felt "slippery." She said that she slipped three times before reaching her seat. However, she did not notice anything wet on the floor and did not mention her slipping to anyone, including plaintiff, claiming she did not have a chance to do so. It was raining outside that evening and it had snowed the day before. Plaintiff was the first person to dance and sustained serious injuries when he fell on the dance floor. Plaintiff's version of his fall changed over the course of the litigation.
In a signed, hand-written Notice of Tort Claim*fn3 dated March 1, 2003, plaintiff stated that he "fell due to the freshly waxed dance floor"; the dance floor was "freshly waxed and hazardous." In his complaint, plaintiff repeated that he was "caused to fall on a negligently and palpably unreasonably maintained highly waxed dance floor." In his answers to interrogatories, signed on May 24, 2004, plaintiff certified that he "slipped and fell on the dance floor because the floor was extremely slippery. It appeared to have been highly waxed."
Yet, in his deposition on December 15, 2004, plaintiff testified that the dance floor "was slippery" and that when he tried to get to up after his fall, he noticed "that it was wet." Prior to his fall, plaintiff had not had anything to eat but had ordered a beer at the bar that he "didn't finish." No witness corroborated plaintiff's testimony that the floor was wet. NHFD provided a monitor for the rental premises. On the date in question, Henry Tanski, a member of the volunteer fire department, was the assigned monitor. His responsibility was to be on hand for emergencies, such as when "a fuse gets blown or a toilet gets plugged up or something like that." Tanski stayed in a room adjacent to the function room, although he occasionally would look in to see that nothing unusual was going on. As part of his responsibilities he would clean the function room after the party. No one complained to him about the dance floor on the evening of plaintiff's accident.
The NHFD moved for summary judgment which was heard by Judge LaConte on January 6, 2005. Defendant Vasquez joined in the motion. At the outset, the judge found that the fire department had a duty to plaintiff who was an invitee. The judge rejected plaintiff's argument that his testimony that the dance floor was wet, together with the acknowledged fact that drinks were served at the party, put defendants on notice that a dangerous condition existed and that, as a result, they breached their non-delegable duty to use reasonable care to protect guests against known or reasonably discoverable dangers. LaRussa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156, 162 (App. Div. 2003). The judge stated:
THE COURT: I have reviewed the facts very carefully. I have looked at the photographs that are attached to the engineer's report of D'Onofrio Engineers.
I notice that -- and it's been pointed out in the papers -- that surrounding the dance floor is carpeting. There is a photograph of the front door into the firemen's hall.
There appears to be two runners right by the doorway that would appear to be there in order to absorb any moisture, water, etcetera, that pedestrians track into the premises.
I have searched the record very carefully to see if there is anything that remotely indicates negligence on the part of the fire department.
I don't see any expert report or anything that said because it had rained the day before or maybe earlier that day and it was drizzling, etcetera, that there were insufficient precautions taken by the fire department to see to it ...