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Calamia v. Kempton

February 13, 2008

EDITH CALAMIA, PLAINTIFF-APPELLANT,
v.
JOHN KEMPTON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, L-2404-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 14, 2008

Before Judges A.A. Rodríguez and C.L. Miniman.

Plaintiff Dr. Edith Ann Calamia-Ombrellino appeals from the mid-trial dismissal of her complaint against defendant John Kempton for personal injuries sustained in a fall on a short flight of stairs to the basement of defendant's home. We conclude that the trial judge erred in two respects and reverse.

Plaintiff and her fiancé accompanied by a realtor went to inspect defendant's home, which was listed for sale. They arrived in the afternoon of May 24, 2003, and entered through the front door. Defendant was home at the time. Plaintiff and her companions looked at the bedrooms upstairs and walked back down to the main level. They then went to the basement staircase. The first step down from the landing was awkward and plaintiff lost her footing. She grabbed for a handrail but none was there. Plaintiff fell down all five steps and landed on the basement floor. Plaintiff injured her right ankle, left shoulder, back and neck. She was diagnosed with a torn ligament in her right ankle.

Plaintiff's complaint was filed on September 5, 2003, and an answer was filed the following month. Plaintiff's experts, Tom McNamara and Andrew Nilsen of Hard Facts Investigative Engineering, inspected the premises on February 20, 2004, and issued a report four days later. They opined that the basement staircase revealed several building code violations.

First, the landing length was only twenty-eight inches and should have been thirty-eight pursuant to the building code. Second, the riser heights were not uniform. Although the building code requires a maximum riser height of seven and three-quarter inches with all risers uniform, the first riser at the top was a half inch less then code, the second riser was an inch more than code, the third riser was a half inch more than code and the fourth and fifth risers were three-quarters of an inch more than code. Third, the tread dimensions also were not uniform although the building code requires minimum tread widths of not less than nine inches exclusive of nosing with all treads uniform in width. The first tread was half an inch wider, the second tread was three-quarters of an inch wider, the third tread was one and a quarter inches wider and the fourth tread was one inch wider. Fourth, the building code required at least one handrail for this staircase yet none was provided. Fifth, both sides of the staircase were not enclosed with walls as required by the building code. Sixth, although the staircase was adequately lit, there was insufficient headroom over the staircase.

The experts concluded as follows:

The opinions and conclusions expressed in this report are based on the information available and are within a reasonable degree of engineering probability and scientific certainty.

1. The subject staircase contained numerous code violations specific to the current and applicable building code requirements.

2. The variation of raiser [sic] and tread dimensions in conjunction with the lack of any handrails would be considered a tripping hazard.

Nothing in the record suggests that this report was not served on defendant shortly after it was received.

The matter was first reached for trial on December 11, 2006, although it had been listed for trial more than a dozen times before, and plaintiff and a fact witness testified on December 12, 2006. Plaintiff's expert was scheduled to testify the following day, but the case was mistried when plaintiff's doctor was not available. The case was again reached for trial on February 7, 2007, and plaintiff, a witness and plaintiff's doctor all testified. Plaintiff's husband and her engineering expert, Tom McNamara, were scheduled to testify on February 8, 2007. After plaintiff's husband ...


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