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McNaboe v. Diner

August 12, 2009

FRANCIS (FRANK) W. MCNABOE, PLAINTIFF-APPELLANT,
v.
HORIZON DINER, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
RAMSEY RESTAURANT, LLC, T/A HOULIHAN'S RESTAURANT, THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-258-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2009

Before Judges Yannotti and LeWinn.

Plaintiff Francis W. McNaboe appeals from the May 23, 2008 order of the Law Division granting summary judgment dismissing his complaint against defendant Horizon Diner (Horizon); plaintiff also appeals from the July 18, 2008 order denying his motion for reconsideration. For the reasons that follow, we affirm.

On or about February 4, 2005, plaintiff was injured when he slipped and fell on ice in Horizon's parking lot. On that night, plaintiff had gone to Houlihan's Restaurant (Houlihan's); because Houlihan's parking lot was full, plaintiff parked his car in the lot of a Pathmark Supermarket and walked through Horizon's parking lot to get to Houlihan's. When returning to his car after spending time at Houlihan's, plaintiff again walked through Horizon's lot to access the Pathmark lot. It was at this point that plaintiff slipped and fell.

Plaintiff filed suit against Horizon and fictitious parties on January 10, 2007; he did not name Houlihan's in his complaint. At plaintiff's deposition one year later on February 12, 2008, he revealed for the first time that he had been at Houlihan's on the date in question. Horizon thereafter filed a third-party complaint against Houlihan's on April 21, 2008.

Prior to filing its third-party complaint, Horizon filed a motion for summary judgment, which was granted on May 23, 2008.

In support of that motion, Horizon submitted the deposition of its owner, Vasilios Saites, who had testified that he posted "a lot of signs" in the parking lot "that say you can only park here if you come into the diner . . . ." Saites further testified that he installed those signs when Houlihan's started. . . . They used to get a lot of people and they used to park in our parking lot. . . . Because Houlihan's probably didn't have enough parking and the overflow that used to come park in our place, we had no room for our customers. So we installed the signs to keep them out.

Plaintiff testified in deposition that, on the night in question, he had "no intention to go into the Horizon Diner. . . ."

The trial judge found that Horizon had no duty to plaintiff, for the following reasons:

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 person is gauged by the right of that person to be on the land. That status is determined by which of the three classifications applies to the entrant, namely that of a business invitee, licensee, or trespasser.

In this case, the [c]court concludes undisputedly that the plaintiff was a trespasser.

As a trespasser, the landowner owes [a] minimal degree of care to the plaintiff, who had essentially no privilege to be on the property. The duty owed to a trespasser is relatively slight. A landowner, under most circumstances, has a duty to warn trespassers only of artificial conditions on the ...


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