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Marie Clinedinst v. Anthony Visco and Lorraine Visco

April 27, 2011

MARIE CLINEDINST, PLAINTIFF-APPELLANT,
v.
ANTHONY VISCO AND LORRAINE VISCO, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE. APPROVAL OF THE APPELLATE DIVISION

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 ...


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