On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0160-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
Plaintiff, a guest in defendant's home, fell while descending a serpentine staircase, and sued for damages resulting from the personal injuries sustained. In granting defendant's summary judgment motion, the trial judge determined that plaintiff's familiarity with the staircase negated defendant's duty to warn of its alleged defects. We agree and affirm.
As the opponent of defendant's summary judgment motion, plaintiff was entitled to the trial judge's assumption that all her sworn statements were true and the benefit of all reasonable inferences flowing therefrom. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In reviewing the summary judgment entered against plaintiff, we apply the same standard that governed the trial judge. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008). Accordingly, we accept as true plaintiff's deposition testimony and the opinions of her liability expert as to the defects in the staircase.
Plaintiff testified at her deposition that she and defendant began dating on September 11, 2006, and that she first visited defendant's home in Woodbine at the end of that month. By October 30, 2006, the date of plaintiff's fall, plaintiff had visited defendant's home approximately fifteen times and stayed the night seven or eight times. When asked how many times she used the staircase, plaintiff testified that she went up or down the staircase [r]oughly the same amount of times that I spent the night there. So, going up and down, if I was there -- if I spent the night there seven to eight times, it would be I guess double that.
Q: So, approximately 15 times?
Plaintiff denied ever using the stairs during any visits that did not result in her staying the night.
According to plaintiff's liability expert, this "very unusual" staircase consisted of fourteen steps. Starting on the second floor, the first step downward consisted of what the expert called "a standard, rectangular oak tread, 9 3/16 inches deep." In descending, the user would next encounter four triangular treads -- referred to by the expert as "winders" --approximately nine inches deep as the staircase made a 90 degree turn to the user's right. Once completing that right-angle turn, the user would then encounter three more standard rectangular treads approximately nine inches deep. Those three treads are followed by four more winders as the staircase turns another 90 degrees in the opposite direction from the prior turn. The last of those winders leads to a single rectangular tread, after which the user would step down onto the first floor.
Plaintiff's expert found the staircase defective in four ways: (1) the winders were too narrow and not uniform; (2) the height of the risers varied by as much as three-quarters of an inch; (3) the height of the mounted handrails departed from the applicable building code provisions in a manner that would tend to discourage their use; and (4) the handrail toward the bottom of the staircase was dislodged on one end on the date of plaintiff's fall and therefore, was unavailable to the user.
Based on this expert opinion and her own deposition testimony, plaintiff argued that she had provided evidence of all the elements of her negligence claim sufficient to defeat summary judgment. The judge rendered a written decision, holding that defendant did not breach the common law obligation to social guests or invitees because of plaintiff's familiarity with the staircase. He also determined that plaintiff failed to provide sufficient evidence of a link between the fall and the defects alleged by her expert.
We agree that plaintiff's familiarity with the staircase absolved defendant of any obligation to warn of the defects alleged by plaintiff's expert. That is, defendant owed plaintiff, his social guest, only a duty to warn of dangerous conditions of which he had "actual knowledge and of which the guest is unaware." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993); Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). A host "need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself," Berger v. Shapiro, 30 N.J. 89, 97 (1959); see also Parks v. Rogers, 176 N.J. 491, 498 (2003), nor "inspect [the] premises to discover defects which otherwise might not be known to the casual observer," ...