On appeal from Superior Court of New Jersey, Law Division, Sussex County, L-737-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2009
Before Judges Wefing and Grall.
Plaintiff Dawn Gokey commenced this litigation to recover damages for injuries she sustained as a consequence of falling down the stairs of a single-family home she rented from defendant Lois R. Doring. Doring and her brother, defendant Paul E. Prokopy, own the property. Gokey appeals from a grant of summary judgment in favor of defendants. Because defendants are entitled to judgment as a matter of law, we affirm.
These are the facts stated in the light most favorable to Gokey. In July 1992 Gokey and Mark Haubrich rented a single-family residence, which is located in Vernon, New Jersey, from Doring.*fn1 Haubrich died in September 2004, but Gokey continued to live in the house. She fell on January 29, 2005, nearly thirteen years after she took possession of the property and the house.
Gokey fell at about 11:45 p.m. while descending a stairway that leads from the front door of the house to the driveway. The night was clear but cold, and Gokey was wearing work boots. There was no ice or debris on the dry steps, which were lighted by fixtures at the front door and on the garage.
The wooden stairway has twelve steps and one wooden railing. When Gokey placed one foot on the second stair from the top, "something got" her. To Gokey, the incident was "a blur." She recalled attempting, without success, to grab the wide handrail to stop her "free fall," but she "just hit" the railing with her hand and ended up in a sitting position on the second step from the bottom with her ankle behind her. Although she heard a "crackling" sound as she started down the stairs, a noise she had heard before when the weather was cold, Gokey did not feel the step move beneath her foot.
Over the years, Haubrich had done some work on the stairs. In 2000, he installed outdoor carpet because the steps became slippery when wet. In addition, he blocked the open space between the handrail and the stairs by placing "slats" or "spindles" that run from the top surface of each step to the underside of the railing. Apart from those improvements and ordinary removal of debris, ice and snow, no one did anything to repair, maintain or modify the stairway during Gokey's tenancy.
Other than discussing the slipperiness of the steps prior to Haubrich's installation of the carpeting, Gokey had not complained to Doring about the steps. Although Gokey recalled Haubrich telling her that Doring suggested they use the back door when he said something about the stairway, Gokey was not present when they had that conversation. Doring had spoken to Gokey about the stairs, however. About a year before Gokey's fall, Doring discussed the condition of the house with Gokey and, as she had in the past, mentioned the steps and recommended Gokey greet children on Halloween at the foot of the stairway.
Gokey's expert, a professional engineer, examined the steps on October 10, 2006, about a year and one-half after the accident. He described the general condition of the stairway as "poor," noting its construction and inadequate structural support, the "badly worn and torn" carpet covering, and uneven "tread surfaces." The engineer pointed to the fact that the top sections of the separate steps were composed of more than one piece of untreated wood which were not even with one another. There was a one-quarter-inch ridge across the center of the first step down from the top and a one-eighth-inch ridge across the center of the second step. The engineer gave this explanation for that condition:
The multiple boards used for each tread, and the wood braces and risers, are untreated lumber. That is, these structural members are bare wood with no treatment or coating. These untreated/uncoated structural members are exposed to the elements. Moreover, there are no roof gutters above the top stairway landing. Accordingly, water runoff from the roof of the structure is channeled onto the stairway. This water seeps through the carpeting, and directly runs through the torn sections of the carpeting, to the structural wood members below. Because these members are exposed and untreated/uncoated, this exposure is causing them to rot, splinter, warp, and break down. These various problems make the stairway in question structurally unsound and allow tread surfaces to flex/move inordinately underfoot.
These ridges are, as previously discussed, caused by the use of multiple boards for tread construction and the unsound, warped, and deteriorating condition of these stairway members. The presence of these ridges create[s] unsound/unstable footing on these treads.
The engineer did not, however, refer to any standard proscribing the use of multiple boards to form the ...