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Susan D'alessandro v. Norman & Judith Hartzel

October 27, 2011

SUSAN D'ALESSANDRO, PLAINTIFF-APPELLANT,
v.
NORMAN & JUDITH HARTZEL, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS, AND BERGER REALTY AND DOUGHERTY & JOHNSON BUILDERS, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0352-08.

The opinion of the court was delivered by: Parrillo, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 26, 2011

Before Judges Parrillo, Alvarez and Skillman.

The opinion of the court was delivered by PARRILLO, P.J.A.D.

Plaintiff Susan D'Alessandro appeals from the summary judgment dismissal of her negligence action against defendants Norman and Judith Hartzel. We affirm.

The facts are in all material respects undisputed. This matter arises out of a one-week rental of defendants' vacation condominium at the Jersey Shore. Prior to walking through the front door at the start of her vacation on June 17, 2006, plaintiff never visited the condominium, but had viewed its layout in on-line pictures about four or five months before. On arrival, plaintiff was dragging a suitcase on wheels with her right hand. As she crossed the threshold of the front door, she had to prop open the inward swinging-hinged door with her left hand while rolling her luggage with her right hand. Her left shoulder was therefore angled in first, and her body passed through the threshold sideways while her vision was "facing forward across" the interior of the foyer. Upon crossing the threshold, plaintiff fell on the step leading from the landing into the sunken living room and sustained injuries.

Plaintiff assumed the foyer to be flat and level when in fact the level changed within one foot of the side of the front door. She acknowledged, however, that had she walked straight in, she would have had a clear view of the landing, steps and living room. Indeed, the step carpeting was distinguishable from, and a different color than, the front tile landing. Moreover, it was a bright and sunny day and the lighting was adequate. In fact, there were no prior complaints about the entranceway or previous falls by other guests on the steps immediately adjoining the front door.

Plaintiff sued defendants*fn1 in negligence, alleging a design defect in the uneven floor level immediately adjoining the door, and failure of defendants to warn her of, or otherwise protect her from, the so-called dangerous condition. Defendants answered, denying liability. Following discovery, in which plaintiff offered no expert proof as to the condition of the entranceway or living room steps, defendants moved for summary judgment. After hearing argument, the judge granted defendants' motion and dismissed plaintiff's complaint, reasoning:

Negligence is not presumed and the burden of proving it is on the Plaintiff. There is no proof for the jury to consider as to defective design or defective construction. In addition, the issue of negligence of the Plaintiff herself dragging a suitcase as she tried to enter the premises as she described it in her deposition is quite visual and overwhelming. No reasonable jury on these facts could find for the Plaintiff against the owner of the property absent proof of a design defect or negligent construction.

There is no proof of breach of a duty.

On appeal, plaintiff argues that the motion judge erred in granting summary judgment by ignoring disputed issues of material fact and by requiring expert testimony. These issues lack merit.

To establish a prima facie case of negligence, a plaintiff must establish the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages. Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996). The duty owed to a plaintiff is determined by the circumstance that brought him or her to the property. Daggett v. Di Trani, 194 N.J. Super. 185, 189 (App. Div. 1984). Whether a defendant owes a legal duty, as well as the scope of the duty owed, are questions of law for ...


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