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Marie Clinedinst v. Anthony Visco and Lorraine Visco


April 27, 2011


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9695-08.

Per curiam.


Submitted March 22, 2011

Before Judges Wefing and Hayden.

This case concerns the duty owed by a homeowner to a social guest. Plaintiff Marie Clinedinst appeals the grant of summary judgment in favor of defendants Anthony and Lorraine Visco, the daughter and son-in-law of plaintiff, in a premises liability suit. Because the record below demonstrates that defendant-homeowners met the duty they owed to their plaintiff guest, we affirm.

Viewed most favorably to plaintiff, the motion record reveals the following. On the afternoon of August 2, 2007, plaintiff visited her daughter and son-in-law's home, which she did every few weeks or at least every month. In their backyard defendants had a paved patio, which enclosed an in-ground pool, and a separate grassy area. Plaintiff had been in the pool area at least two or three times that year and the same number of times the previous year.

Defendants' teen-aged children regularly left toys and items for the pool in the patio area. Plaintiff often told the children to pick up their things. Dog toys used by defendants' dog were commonly lying around, mostly, but not always, in the grassy area. Plaintiff sometimes picked up the children's toys and put them away. Generally, she left the dog toys so the dog could play with them.

While on the patio on August 2, 2007, plaintiff went to move her hat and glasses from a chair. She stepped backward onto an object she did not see, lost her balance and fell. As a result she injured her shoulder and broke her hip. Although plaintiff did not see the object she stepped on, she was fairly certain it was a dog toy. The dog had been outside when plaintiff first came into the backyard but had gone inside before her fall.

That day plaintiff's daughter knew that there were things lying around the patio area but she did not pick them up. Generally she picked up around the patio area at the end of the day. Nor did she warn her mother during the visit to be careful to avoid anything lying on the patio that might create a dangerous condition.

The trial judge granted summary judgment to defendants after discovery had been completed based upon the failure of plaintiff to prove a breach of the duty owed her by defendants. The trial judge held that defendants, by failing to warn plaintiff of a danger of which she knew or should have known, had not breached the limited duty owed to plaintiff, as a social guest. On appeal plaintiff argues that the trial judge erred in so finding.

In reviewing an order granting summary judgment, this court must apply the same standard as the trial judge. Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 131 (App. Div. 2011). A judge will grant summary judgment where the moving party can prove "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). An issue of material fact is genuine if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party . . ., are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Soto v. Scaringelli, 189 N.J. 558, 567-58 (2007)(citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If it is possible for a rational factfinder to decide in favor of the non-moving party, granting summary judgment is improper. Brill, supra, 142 N.J. at 523.

To prove a cause of action for negligence three elements are essential: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.) certif. denied, 150 N.J. 27 (1997). Whether a duty exists is solely a question of law to be decided by the court. Piscitelli v. Classic Residence by Hyatt, 408 N.J. Super. 83, 113 (App. Div. 2009) (citing Wang v Allstate Ins. Co., 125 N.J. 2, 15 (1991)).

This court has described the duty owed to a guest in this manner:

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.

Hosts are not required to improve or alter their home in order to render it safer for a guest than for themselves. 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. [Tighe v. Peterson, 356 N.J. Super. 322, 325-6 (App. Div.), aff'd, 175 N.J. 240 (2002) (internal quotations and citations omitted).]

The above cases apply the test set out in the Restatement (Second) of Torts. It states as follows:

§342. Dangerous Conditions known to Possessor.

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or had reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved. [Restatement (Second) of Torts § 342 (1965).]

It is undisputed that plaintiff was a social guest of defendants. Thus, if defendants knew or should have known of an unreasonable risk of harm or a harm of which plaintiff would be unaware, defendants had a duty either to correct the condition or warn their guest of the danger. Ibid. Yet a landowner is not required to provide greater safety for his guest than for himself and need not "scour the premises to discover latent defects." Parks v. Rogers, 176 N.J. 491, 498 (2003). Where a danger is obvious or self-evident, there generally is no need to warn. See, e.g., Tighe, supra, 175 N.J. at 242 (finding no duty to warn plaintiff who frequented the pool of danger of diving in the shallow end of the swimming pool); Longo v. Aprile, 374 N.J. Super. 469, 474 (App. Div. 2005) (finding no need to warn neighbor working on defendants' roof of the self-evident danger of falling); Endre, supra, 300 N.J. Super. at 143 (finding no need to warn when defects on stairway were obvious and the decedent frequented the premises). Of course, when a plaintiff is unfamiliar with the premises or unaware of a dangerous condition, a duty to warn is more likely to be found. See, e.g., Parks, supra, 176 N.J. at 502 (finding duty to warn plaintiff on first visit to house of short handrail).

Courts must use a fact-sensitive analysis to determine if a host fulfilled his or her duty to warn the guest in each case. Tighe, supra, 175 N.J. at 241. In the present case, plaintiff was familiar with the backyard area of her daughter's home. She knew that toys were regularly left around the patio area and the grassy area. In fact, plaintiff often helped the children pick up their toys at the end of the day. When her daughter was last in the patio area that day, she noticed items on the ground. Plaintiff also knew that the dog left toys around the backyard and knew that he had recently been in the area.

Given the above facts and the scope of the duty owed to a social guest, we are satisfied that a rational factfinder could not conclude that defendants breached a duty to plaintiff. See Brill, supra, 142 N.J. at 523. The facts show that plaintiff had knowledge of the general condition of the patio from prior visits. Further, that day she could have seen any toys that were lying on the patio. Therefore, defendants did not have a duty to warn her of the potentially dangerous condition about which she knew or should have known. Consequently, plaintiff's evidence fails to support her claim that defendants breached a duty to her as a social guest.

Plaintiff also asserted that defendants' motion for summary judgment should not have been granted because it was filed less than sixty days before trial in violation of Rule 4:46-1. We disagree. The trial judge adjourned the trial date to allow the motion to proceed. Such an adjournment is within the sound discretion of the trial judge. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995).



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