On appeal from the Superior Court of New Jersey, Law Division, Union County, L-3479-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Plaintiff Sandra Dabrowski appeals from orders dated July 6, 2007, and August 3, 2007, which granted summary judgment in favor of defendants Gail M. Mohammed, Nabile Mohammed and Thomas Young respectively.*fn1 The July 6, 2007, order indicates the order was entered "for the reasons stated on the record." On the August 3, 2007, order, the court wrote: "[p]laintiff was a social guest on these premises at the time of the accident and had previously been on the deck in the same condition as it was when the accident occurred. This defendant did not violate a duty to the plaintiff." Based upon our review of the record, the arguments advanced and the applicable law, we reverse and remand.
The incident precipitating the negligence claim in the action occurred in Elizabeth, on December 4, 2004, at approximately 4:30 p.m. At defendant's request, plaintiff was assisting with some interior household cleaning at defendant's home. Plaintiff had been to the home several times. She was married to the cousin of defendant Gail Mohammed. Gail and her husband, Nabile, had recently separated and they had sold the house to co-defendant Thomas Young, who was holding money in escrow pending the clean-out of the home.
It is undisputed that plaintiff had been to the deck area on at least one previous occasion. At that time, she had responded to an urgent call by defendant Gail Mohammed, whose uncle was lying on the deck. Ms. Mohammed was unsure whether her uncle was sleeping or had expired. Upon plaintiff's arrival, plaintiff found Ms. Mohammed's uncle had indeed passed away while on the rear deck.
According to plaintiff, after she finished cleaning the home, defendant Gail Mohammed instructed her to leave through the rear exit. Ms. Mohammed, however, maintains that she had warned plaintiff not to take that exit because she knew defendant had not taken her medication, which might cause plaintiff's legs to be weak. Nonetheless, plaintiff exited through the backdoor onto a deck area. Plaintiff alleges that the weather conditions at that time were dark and misty. The parties dispute the degree to which the flood lights illuminated the deck. Whereas plaintiff contends the deck was entirely unlit, defendant contends that the backyard was adequately illuminated. Plaintiff also testified at deposition that debris littered the entire yard.
Plaintiff proceeded onto the elongated step along the top part of the deck, and she stumbled off the side of the deck onto the ground covered with debris. As described by plaintiff's engineering expert, Edwin C. Berry, P.E., the deck is twelve feet three-inches wide, and there is a full width ten-inch high step running across the deck at a point four feet nine inches from the rear face of the house. There is a guard on the western side of the deck, however, on the eastern side where the accident took place, there is no hand railing or guard. According to Mr. Barry's report, there was supposed to be a rail pursuant to the model code of the Building Officials and Code Administrators International, Inc., known as the BOCA National Building Code/1999 (BOCA), adopted by the State of New Jersey in 1976. The engineer's report indicates the revision of the BOCA Code, which was in effect at the time of the accident, states that the maximum riser height shall not exceed between seven and three quarter inches and eight and one quarter inches. In addition, the plaintiff's engineering expert's report indicated that guards are required along open-sided walking surfaces, mezzanines, stairways, ramps and landings which are located more than fifteen and one-half inches above the floor or grade below. The edge of the deck where plaintiff fell is thirty-six and one-half inches above the grade below.
In June 2007, defendant and plaintiff both made motions for summary judgment which were heard at a July 6, 2007, oral argument. The trial court was convinced that plaintiff should be considered a social guest for common law negligence classification purposes. The court's various comments disclose the basis for the order granting summary judgment in favor of defendants:
THE COURT: Actually the memo that was prepared for me says it's an issue that whether plaintiff knew about the absence of the handrail, but I seem to find today that she did. Whether she was instructed to leave through the backdoor, I, or she was or the defendant tried to stop her, I'm not sure legally what the difference it makes.
THE COURT: And, but you know, . . . whether the plaintiff was weak as a result of needing insulin for her diabetic condition and needed to get home to take a shot, I don't see what that has to do with the price of beans really --
THE COURT: If there was a hidden defect, of course, you know, we would have a trial. We'd probably have it settled, but there's nothing different. It's just that she didn't notice it which is really too bad, but it's my job not to let cases go to juries if there's no case for them to, there's no facts for them to call. There's no duty to do more than they did to a social guest.
THE COURT: And no one's disputing that the husband took the rail off --
THE COURT: -- before Thanksgiving.
THE COURT: So therefore it was done and it's not in dispute. Whether she noticed it or not is a good question but that's not dispositive.
THE COURT: As I said before, it's not the defendant's fault if she didn't look around while she was out there. I'm not saying somebody would say she was terrible that she didn't, but she didn't I guess.
THE COURT: But that doesn't make the defendant have a duty. I'm sorry. As I said, I did the very same thing walking out of church which I did for 28 years or 20 something years and just forgot about the fact that ...