On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2704-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
This premises liability action was tried before a jury and resulted in a verdict in favor of plaintiff Tinatin Takaichvili in the net amount of $162,000. Defendant George Gabouniia appeals from the judgment, arguing, among other things, that the trial judge erred in ruling, as a matter of law, that defendant owed a duty to plaintiff as an invitee, rather than as a social guest.*fn1 We agree, and therefore reverse and remand for a new trial on liability only.
The relevant facts are fairly straightforward. This matter arises from plaintiff's fall from a deck attached to the rear of the home of defendant, her son. Plaintiff, who lived in New York, had arrived at defendant's home on Friday, May 7, 2000, and stayed overnight for a barbeque that her son was hosting the next day for family and friends from the Republic of Georgia. The party was to be held, in part, on the rear deck, which was about thirteen feet above the ground. A set of stairs off the deck led to the backyard, the top step of which was shorter than the other four and with a higher rise. There was no railing on the stairs.
Plaintiff helped prepare for the party by baking some food in the oven. During the party, plaintiff was standing at the railing of the deck in the vicinity of the barbeque when defendant asked her to cut some chicken he had cooked on the grill. He then either placed a tray of four chickens on the railing, or handed the plate to plaintiff, who placed it on the railing. In any event, facing the railing with a knife in her right hand, she proceeded to cut the chickens, stepping incrementally to the right as she moved down the line of chickens spread out on the tray. After cutting the third chicken, plaintiff moved to the fourth and, focusing her attention on the chicken, took a step right off the end of the deck. There being no railing to break her fall and dropping "two steps at once," plaintiff sustained serious injuries to her knee.
Before this incident, plaintiff had been a frequent guest at the home defendant purchased in November 2003, visiting her son and his family every other weekend. She was familiar with the deck, having been on it about ten times before the accident. Plaintiff had also been up and down the deck stairs on two prior occasions. The general configuration of the deck and steps was visible and apparent. It was also obvious that there was no railing on the stairs, that the riser on the first step from the top was higher than it should be, and its overhang shorter.
Plaintiff sued defendant for negligence. Defendant moved for summary judgment, arguing that as his social guest, defendant only owed plaintiff the duty to warn her of defects of which she was not otherwise aware. The motion judge appeared to agree that plaintiff's status was that of a social guest, but nevertheless denied summary judgment relief, finding issues of material fact whether the staircase constituted an open and obvious risk such as to extinguish defendant's duty of care and whether plaintiff was aware of this risk. However, another judge presided over the trial, and, mistakenly believing the issue already decided, determined plaintiff's status to be that of an invitee as a matter of law. In fact, following plaintiff's expert's testimony, the trial judge instructed the jury as to the higher duty of care owed to an invitee, and at the close of plaintiff's case, denied defendant's motion for a directed verdict on the same basis. After again being charged as to the elevated duty of care owed an invitee, the jury returned a verdict finding defendant 60% liable and awarding plaintiff a gross amount of $270,000 in damages.
On appeal, defendant argues, among other things, that the court erred in determining plaintiff's status as an invitee and thus applied the wrong legal standard. We agree.
New Jersey courts have not abandoned the traditional classifications for establishing premises liability, i.e., invitee, licensee, and trespasser. According to our Supreme Court,
The traditional common law approach to landowner or occupier tort liability toward a person who has been injured because of a dangerous condition on private property is predicated on the status of the person on the property at the time of the injury. Historically, the duty of the owner or occupier to such a person is gauged by the right of that person to be on the land.
That status is determined by which of three classifications applies to the entrant, namely that of a business invitee, licensee, or trespasser.
An owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related. A lesser degree of care is owed to a social guest or licensee, whose purposes of being on the land may be personal as well as for the owner's benefit. ...