On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1353-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and King.
This is an appeal from a summary judgment entered in favor of defendants against plaintiff, a social guest, who fell in the back-yard of her daughter Laura Anne Sammon's residence in daylight and good weather at about 1 p.m. on September 25, 2006.
Plaintiff had visited her daughter's home to say good by before leaving on a vacation. Laura was packing in anticipation of a household move. She asked plaintiff, her mother, to watch Laura's four children so that Laura could rest and plaintiff agreed.
Plaintiff went into the back-yard with the four children and sat in a chair under a tree. The youngest child, an infant, became fussy. To soothe the child, plaintiff started to walk around holding her. As plaintiff was walking, she lost her balance, fell, and broke her ankle. This was the first time the plaintiff had walked around in the Sammon's back-yard.
We find no fault with the legal conclusion that plaintiff was a social guest as a matter of law. By her own testimony, the plaintiff went to the premises to visit her family before leaving on vacation. Her status did not change when she agreed to watch her grandchildren while her daughter rested. See Longo v. Aprile, 374 N.J. Super. 469, 473 (App. Div. 2005).
Traditionally, a visitor's status is determined by the circumstances which bring her to the property. See Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div. 2002); Russell v. Merck & Co., 211 N.J. Super. 413, 417 (App. Div. 1986); Daggett v. DiTrani, 194 N.J. Super. 185, 189 (App. Div. 1984); Pearlstein v. Leeds, 52 N.J. Super. 450, 458-59 (App. Div. 1958), certif. denied, 29 N.J. 354 (1959).
The duty owed to the plaintiff as a social guest or licensee is described in the Restatement (Second) of Torts and in our opinion in Tighe v. Peterson, 356 N.J. Super. 322, 325-26 (App. Div.), affirmed o.b., 175 N.J. 240 (2002):
The duty which hosts owe to their social guests with respect to the conditions of their property is limited. A host has a duty to warn only when dangerous conditions exist on the property of which the host has actual knowledge and of which the guest is unaware. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.)[, certif. denied, 150 N.J. 27 (1997)]; see Berger v. Shapiro, 30 N.J. 89, 98 (1959). Hosts are not required to improve or alter their home in order to render it safer for a guest than for themselves. Endre, 300 N.J. Super. at 142. "Where a 'guest is aware of the dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable.'" Ibid. We recently described the duty in detail in this manner:
The law is well settled regarding the duty a host owes to a social guest as to conditions of the property. The duty is limited. A host need only warn "of [any] dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993); see also Berger v. Shapiro, 30 N.J. 89, 97-98 (1959). A "host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself." Berger, supra, 30 N.J. at 97. The host is under no duty to inspect his or her premises to discover defects that which otherwise might not be known to the casual observer. Id. at 98. Where a "guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable." Id. at 99.
[Endre v. Arnold, [supra,] 300 N.J. Super. [at 143].]
The Restatement (Second) of Torts,  rule adopted in this State in Berger v. Shapiro, ...