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Donohue v. Polozzo

November 9, 2009

PATRICIA DONOHUE, PLAINTIFF-APPELLANT,
v.
ROBERT POLOZZO AND BARBARA POLOZZO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-861-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 7, 2009

Before Judges Sabatino and J. N. Harris.

In this personal injury case, the Law Division granted defendants, the lessors of a single-family house, summary judgment dismissing the negligence complaint of plaintiff, a lessee who fell on the basement stairway within the premises. Plaintiff appeals, and we affirm.

The underlying facts are not complicated. Defendants Robert and Barbara Polozzo, formerly husband and wife, purchased a two-story, single-family house in Toms River in September 2003. They bought the residence from the family of the late Hugo Agnoli, the builder and original owner of the house. At the time, defendants lived nearby in Toms River. Prior to closing, defendants had the house inspected by a licensed residential inspector. In anticipation of renting the house, defendants refinished the kitchen cabinets, painted the house, and replaced the exterior windows in the basement. Mr. Polozzo, who has worked in home construction as a carpenter since 1986, personally installed new basement windows.

The house consists of two floors above ground level and a partially-finished basement with some carpeting. The basement includes laundry facilities and a lounge area. Access to the basement from the first floor is through an internal stairway, which runs along one wall of the basement. At the time of the accident the stairway had no handrail, either along the wall or on the interior of the staircase. At the top of the staircase, set into the wall, was a shelf, which plaintiff eventually used to store canned goods.

At some point between September 2003 and April 2004, Mrs. Polozzo obtained an application for a municipal certificate of occupancy, in anticipation of being able to market the home for rental purposes. However, she neglected to fill out the application. The certificate of occupancy application includes a list of inspection requirements that the owner must satisfy prior to the issuance of a certificate. That list includes a requirement that "[a]ll hand rails[,] interior and exterior must be secured; you must have handrails when more tha[n] 4 risers or 30 inches or more in height." Defendants also failed to register the house as a rental property with Toms River Township, and did not have the house inspected by the Township, despite local ordinance requirements.

In April 2004, defendants entered into a lease agreement with plaintiff, Patricia Donohue and Daniel Conti, her fiancé.*fn1

On May 1, 2004, plaintiff moved into the home, along with Conti and her seventeen-year-old daughter.

During her lease of the premises, plaintiff regularly used the stairs to the basement on nearly a daily basis, either to gain access to the finished lounge area of the basement or to bring laundry to and from the washer and dryer.

At no time did plaintiff or Conti complain to defendants about the lack of a handrail along the stairs. Plaintiff did, however, complain that the stairs had no treads on them, and eventually Mrs. Polozzo installed plastic "non-stick" stair treads on the tops of each stair, although she did so after plaintiff's slip-and-fall accident.*fn2

Plaintiff's injury occurred on the evening of March 9, 2005. Her sister and nephew came to the house for a party to celebrate plaintiff's forty-sixth birthday. Also present at the party were Conti, his son, plaintiff's daughter, and a friend of Conti's. During the course of the party, plaintiff drank an estimated three or four glasses of red wine.

At approximately 10:00 p.m., after the birthday festivities had ended, plaintiff went down to the basement after seeing her sister out. Once she was downstairs, plaintiff said goodnight to Conti and his friend, who were in the basement lounge watching ...


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