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Silva v. Soderstrom

March 27, 2008

CECILIA SILVA, PLAINTIFF-APPELLANT,
v.
CHARLES SODERSTROM, DEFENDANT, AND ROSALEEN LIGHT-NEWBY, COLDWELL BANKER REALTY, DAN'S KITCHEN, DAN WATERS, DONNA FAHY-WATERS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-2774-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 10, 2008

Before Judges S.L. Reisner and Baxter.

Plaintiff Cecilia Silva appeals from two trial court orders dated May 12, 2006, and March 29, 2007, granting summary judgment, respectively, in favor of defendants Coldwell Banker Realty and its agent Rosaleen Light-Newby (realtor), and defendants Dan's Kitchen, its owner Dan Waters and his wife Donna Fahy-Waters.

I.

These are the most pertinent facts. On February 5, 2004, the realtor was holding an open house for other realtors, as part of an effort to sell a multi-million dollar house. The realtor arranged for a catered afternoon tea during the open house. She hired Dan's Kitchen to cater the tea.

Plaintiff primarily worked as a cleaning person, and Dan's Kitchen (Dan's) was among her many cleaning clients. However, on occasion she also worked for Dan's as a catering waitress on an hourly basis, for which she was paid in cash. She was working in this latter capacity at the afternoon tea. At the house, the catering truck was parked in the driveway, which was partially covered with ice. Plaintiff was well aware of the ice, because she asked Dan Waters to move the catering truck to a less icy location. He declined because other vehicles were parked behind his truck. While bringing a box out to the truck, plaintiff fell on the ice and was injured. She sued the homeowner, Soderstrom, as well as the realtor and the caterer. She settled with Soderstrom. The other defendants moved for summary judgment.

With respect to the realtor, in an oral opinion of May 12, 2006, the trial judge distinguished Hopkins v. Fox & Lazo Realty, 132 N.J. 426 (1993), which imposes a duty on a realtor to warn customers of dangerous conditions in a house the realtor is showing. The judge reasoned that plaintiff was not a customer but rather was hired to provide services to the realtor. He also reasoned that the realtor had no duty to warn plaintiff, because plaintiff was aware of the icy driveway, "the nature of the attendant risk was obvious to the plaintiff," and she "had a greater opportunity to exercise care than that of the defendant/broker."

In an oral opinion placed on the record on March 29, 2007, the court granted summary judgment to Dan's Kitchen, its owner and his wife, based on the bar of the Workers' Compensation statute. The judge concluded that plaintiff "was an employee of the defendant. He instructed her . . . what to do with respect to the catering. She was a waitress and she followed his instructions."

II.

We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendants to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Viewing the record in that light, we conclude that summary judgment was properly granted to the realtor defendants. We affirm the May 12, 2006 order, substantially for the reasons stated by the trial judge in his oral opinion. We add only the following comments. Hopkins does not impose on a realtor a duty to remedy dangerous conditions at the premises where an open house is being held. Rather, Hopkins imposes a limited duty to warn customers of dangerous conditions. Hopkins, supra, 132 N.J. at 448. Even if Hopkins could be extended to persons hired to provide services to the realtor, an issue we need not address here, Hopkins would not be on point because, as the trial judge noted, plaintiff was already aware of the icy condition of the driveway. Therefore, she needed no warning.*fn1 See Tighe v. Peterson, 175 N.J. 240, 241 (2002); Jiminez v Maisch, 329 N.J. Super. 398, 403 (App. Div. 2000).

We turn next to the issue of whether plaintiff was an employee of the caterer such that her negligence lawsuit would be barred by the Workers' Compensation Act, N.J.S.A. 34:15-8. The Act is to "be construed liberally, 'in order to bring as many cases as possible within the coverage of the act.'" Kertesz v. Korsh, 296 N.J. Super. 146, 157 (App. Div. 1996)(citation omitted). Moreover, the rule of liberal construction applies whether a plaintiff is seeking coverage or is seeking to avoid application of ...


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