February 8, 2007
JOSEPH AGNELLI, SR. AND JULIA AGNELLI, PLAINTIFFS-APPELLANTS,
MARGARET AGNELLI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1757-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2006
Before Judges Sabatino and Messano.
Plaintiff appeals the Law Division's entry of a directed verdict in favor of defendant at the close of plaintiff's proofs in this negligence case. We reverse.
This matter arises out of a ladder accident that occurred on August 6, 2002. On that day plaintiff Joseph Agnelli, Sr. was on the premises of his widowed sister-in-law, defendant Margaret Agnelli. Plaintiff, who is handy, routinely had helped out Margaret around her house with assorted tasks after her husband, plaintiff's brother, passed away. At times plaintiff would go to Margaret's house, retrieve tools from her garage, and fix the item in need of repair. On this particular occasion, plaintiff came to Margaret's home with his son in order to reattach a gutter. Margaret had requested plaintiff to come to her house for that purpose.
The testimony in his case-in-chief reflected that upon arriving at Margaret's home, plaintiff removed a metal ladder from her garage. The ladder was eight feet long and had a conventional A-shaped frame. Margaret was not home. He placed the ladder in a dog pen near the detached gutter. His son lay on the roof holding the gutter in place. According to plaintiff, he opened up the ladder and checked it for steadiness. He then climbed up to the third rung, and paused briefly to remove a nail. At that point the ladder twisted and buckled, causing plaintiff to fall to the ground and fracture his hip.
Plaintiff alleged that Margaret was aware, or at least should have been aware, that her ladder was unstable prior to his use of it on the date of the accident. In support of that contention, plaintiff relied upon several items of testimony.
Among other things, plaintiff presented Margaret's deposition testimony, which was read aloud to the jury. The testimony recounted that Margaret and daughter Kathleen had taken the same ladder out of the garage on a day several weeks before the accident. Kathleen briefly attempted to ascend it, but then discontinued the effort. Specifically, Margaret stated in this regard:
We took the ladder out a few weeks prior to Joe [plaintiff] coming up because we were going to fix the gutter, and we don't do heights well. We got up one or two steps and said["]forget this,["] and that was the end of it.
Plaintiff also presented on this issue the testimony of his wife, Julia Agnelli. She contended on direct examination that, approximately two to four weeks before her husband's accident, her sister-in-law Margaret had intimated to her that there was "something wrong" with the ladder:
Q: Mrs. [Julia] Agnelli, I want to take you to anytime before August 6th of 2002 before your husband's accident. Do you recall ever having any conversations with [defendant] Mrs. [Margaret] Agnelli about any of the tools in her house?
A: Yeah. One time I was over, my husband was fixing a sink, and -- because she had a drip. So, I -- he used to fix things, and me and Peggy [defendant] would talk about family, whatever.
So, on this day he was fixing the sink and Peggy went somewhere, I don't know where she went. So, my husband left, he said he had to go get something for the sink. So, I was sitting in the kitchen, and by myself, and Peggy walked in and she said well, where's Joe [plaintiff]? I said he went to do something or get something for the sink. So, she said, oh, he didn't get the ladder did he? He's not using the ladder? I says no, I don't think so. I says why? She says you know, I think there's something wrong, but you know, I'm not sure. I have to talk to Kathy. [defendant's daughter Kathleen] Kathy knows about this. I am not sure.
So, she says I'll get back to you and that was it.
Q: Did you ever discuss that with your husband?
A: I completely forgot about it at that time, and we went about talking about the families, that's all you do, and our -- and nothing was said after that.
The proofs also included Kathleen's trial testimony acknowledging that she had perceived a problem with the ladder when she previously tried to use it herself:
Q: What did you notice, if anything? Did you make any observations about the ladder that you recall?
A: Yeah. I do recall that there was something loose, something wrong with the one side. At this point I could not tell you what.
Kathleen also confirmed at trial that her mother had been aware of some unspecified flaw with the ladder before plaintiff's accident:
Q: Did you have any conversations with your mother about the condition of the ladder?
A: I believe my mother said something about, you know, you've got to be careful with the ladder. I think she was referring to something loose, but I'm not sure what she was referring to exactly.
Q: And that time she said that to you was that before your uncle's accident?
Based upon these various proofs, plaintiff contended that defendant had actual or constructive notice of a dangerous condition and was obligated to either have the ladder repaired or to have alerted him to its hazardous condition before he used it. Defendant, who did not testify in plaintiff's case-in-chief, takes the position that she breached no such duty to her brother-in-law.
After plaintiff rested his case, defendant sought a directed verdict pursuant to R. 4:37-2(b). Defendant's arguments substantially repeated those she had made in moving for summary judgment before trial. That earlier motion had been denied by a different judge, who had determined that there were genuine issues of material fact. See R. 4:46-1. Defendant contended that her brother-in-law was at best a social guest, and that she had breached no duty to him arising out of the ladder's condition.
Unlike the motion judge, the trial judge was persuaded that plaintiff's evidence could not reasonably support a finding that defendant had been negligent in allowing plaintiff to use her ladder. The trial judge agreed with defendant that plaintiff should be legally classified as a social guest, to whom she owed only a duty to correct, or to alert him to, latent hazards on her premises. As a corollary to that principle, the trial judge further observed that if "the [plaintiff's] guest is aware of the dangerous condition, or by reasonable use of his faculties [able] to observe it, then the host is not liable, because there's a failure of the guest to use due care."
Applying these liability principles, the trial judge focused upon the physical condition of the ladder, which was admitted into evidence as a trial exhibit, as well as photographs taken of the ladder in defendant's yard a few days after plaintiff's accident. The trial judge observed that the ladder, both as depicted in the photographs and in its actual condition in the courtroom, was missing a locking mechanism on one side. The absence of that locking mechanism, as the trial judge described it, caused a separation of "one branch of the A" within the ladder's A-shaped frame. That observation led the trial judge to consider that either the locking mechanism was, in fact, missing when plaintiff ascended the ladder, or that it had been intact and was thereafter broken as a result of plaintiff's fall. The judge then reasoned:
In either circumstance I cannot find that this jury can conclude that Margaret [defendant] was aware of the specific knowledge . . . of the dangerous condition, a particular condition[,] and even if she were aware of the condition, or concerned about something wrong with . . . the ladder, [with plaintiff being] a social guest . . . a reasonable jury could not conclude that [defendant breached a duty to him].
He -- Mr. Agnelli did not check this ladder. He said he assumed it was okay. He didn't make independent observations[;] [a] reasonable use of his faculties. He opened it, he put it on spongy ground, he -- he started up three steps, and as he made movements to put nails up and take nails out of his pocket, and hand them on the roof, it collapsed. And I don't believe that that establishes that [defendant] should be responsible for that condition and his use of that ladder under the social guest situation.
The trial judge, therefore, granted defendant a directed verdict, and discharged the jury. Plaintiff then filed the present appeal.
As a preliminary matter, we sustain the trial judge's determination that, under the law of premises liability, plaintiff had the status of a social guest when he came to his sister-in-law Margaret's premises to repair her gutter. Plaintiff contends that his legal status should be viewed more flexibly or indulgently, citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), in which the Supreme Court expressed reservations about rigid adherence to the traditional classifications of injured persons as invitees, social guests or trespassers. Id. at 438. We discern no logical or policy reason in this particular case to depart from the traditional framework as to impose duties upon defendant any greater than those ordinarily owed by homeowners to social guests. That duty is "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 . . . except when the guest is aware of the condition or by reasonable use of [his faculties] would observe it." Parks v. Rogers, 176 N.J. 491, 494, 500 n.5 (2003) (emphasis omitted).
On the question of legal duty, the present case mirrors the circumstances we evaluated in Longo v. Aprile, 374 N.J. Super. 469 (App. Div. 2005). Plaintiff and defendant in Longo were neighbors. Plaintiff had purchased a new power-washer. He offered to power-wash defendant's roof for no compensation, an offer which defendant accepted. Plaintiff climbed upon defendant's roof and began power-washing it without any direction or assistance from defendant. While on the roof, plaintiff caught his foot on a "drip ledge" protruding from the roof, and fell to the ground. Id. 374 N.J. Super. at 471.
We regarded the circumstances in Longo as those in which plaintiff was assisting his defendant neighbor "in a friendly and cooperative way as part of regular social interchanges that exist in our communities." Id. at 472. As such, the plaintiff in Longo was not a business invitee but rather was a social guest. Id. at 473. Similarly here, plaintiff Joseph Agnelli was on his sister-in-law's premises for a gratuitous purpose to assist her in performing an act of home maintenance without any expectation of payment. She did not direct or oversee him in that endeavor. Nor would she have had any contractual recourse had he failed to respond to her need for a handyman. The parties' relationship, as in Longo, is a classic instance of a social guest and host.
However, we part company with the trial judge in her determination that the trial proofs raised no genuine issue for the jury of defendant's potential breach of her duty to plaintiff as his social host. Under R. 4:37-2(b), a motion for a directed verdict should be granted only if "upon the facts and upon the law the plaintiff has shown no right to relief." Conversely, "such [a] motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Id.; see also Verdicchio v. Ricca, 179 N.J. 1, 30 (2004). Dismissal is appropriate only when "no rational jury could draw from the evidence presented by plaintiff" that an essential element of the plaintiff's case is present. Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001).
We reject plaintiff's contention that the trial judge was, in effect, bound to send the case to the jury because of the motion judge's denial of defendant's pretrial summary judgment application. See Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988) (recognizing the inherent power of trial judges to reconsider their interlocutory orders at any time prior to final judgment). We do, however, agree with plaintiff that, viewing the evidence in his case-in-chief in totality, he presented sufficient proofs at trial to support a reasonable inference that defendant had breached her duties of care.
As we have noted in our recitation of the pertinent facts, plaintiff adduced testimony from three separate witnesses who supported his theory that the ladder was in a dangerous condition before the accident and that defendant knew or had reason to know of that danger beforehand. Plaintiff's niece Kathleen specifically noticed "something wrong" or "something loose" in handling the ladder about two weeks before plaintiff's mishap, and also recalled her mother telling her that there was "something wrong" with it. Additionally, plaintiff's wife Julia recalled her sister-in-law telling her on a prior occasion that there was "something wrong" with the ladder, a disclosure that Julia unfortunately did not, at least by her account, pass on to her husband. Finally, defendant in depositions admitted that she and Kathleen had attempted to use the ladder themselves a few weeks before the accident but abandoned that attempt. Considered in combination, we are satisfied that these proofs are adequate to support a jury's reasonable inference that defendant knew or should have known that the ladder was not safe before plaintiff's accident.
The trial judge appears to have been swayed considerably in her analysis by the physical condition of the ladder after the accident. We have examined the photographs of the ladder, which were supplied to us by counsel at our request after this appeal was briefed, and concur in the trial judge's observation that one of the ladder's two locking mechanisms is clearly absent. We also agree that if that locking mechanism was, in fact, missing before plaintiff ascended the ladder, its absence should have been visibly obvious to him. However, the record is inconclusive as to whether the locking mechanism was or was not missing before plaintiff's fall.
Kathleen Agnelli could not recall specifically if the locking mechanism was missing when she attempted to climb the ladder before the date of her uncle's accident. In fact, when shown the ladder in the courtroom, Kathleen indicated that she did not believe it looked the way it did when she last had seen it, stating that the trial exhibit looked "slightly different" and that she did not recall "that piece of metal hanging that's bent like that." We also suspect, without deciding the factual issue here, that the ladder's locking mechanism and the "A"-shaped bar connecting its two sides were altered when the ladder was twisted and collapsed in the process of plaintiff's fall. Indeed, if the mechanism were completely unattached it is doubtful that both Kathleen and plaintiff would have each succeeded in climbing up two or three steps on it on two separate occasions.
At a minimum, we conclude that there is a reasonable prospect that when plaintiff alighted the ladder, its locking mechanism was not in the unattached condition depicted in the post-accident photographs. That being the case, we do not share the trial judge's conclusion that plaintiff, as an experienced handyman, must have had reason to know of a problem with the ladder before he attempted to use it, since his less-than-handy relatives*fn1 both had sensed "something wrong" or "something loose" with the ladder themselves. To be sure, there are considerable indicia in the record of comparative fault by plaintiff, including his admitted failure to push down and secure both locks by hand, but that assessment is best reserved for the jury.
In sum, the corroborated proof that defendant Margaret Agnelli had recognized a problem with the ladder, albeit a non-specific one, before she allowed plaintiff to use it warrants a remand of this case. We thus order a new trial at which the jury should be afforded the chance to evaluate the strength and credibility of these proofs, and to decide whether it is persuaded that defendant unreasonably failed to apprise her brother-in-law of a known latent danger that he reasonably could not have perceived on his own.
In reaching our conclusion, we distinguish the facts from those in Longo v. Aprile, supra. In Longo, there was nothing hidden or defective about the open drip ledge on which the plaintiff tripped, nor was there any proof that the defendant homeowner had observed "something wrong" about his roof before his neighbor climbed upon it. Although the homeowners' legal duties in both cases are synonymous, we regard the facts here as warranting a jury's assessment of a potential breach that was not necessary in Longo.
Affirmed in part, reversed in part, and remanded for a new trial.