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Willie C. Rowe and Karen Rowe, His Spouse v. Mazel Thirty

February 2, 2012

WILLIE C. ROWE AND KAREN ROWE, HIS SPOUSE, PLAINTIFFS-APPELLANTS,
v.
MAZEL THIRTY, LLC AND 40-50 LENOX REALTY ASSOCIATES, LLC, DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Justice Long

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Willie C. Rowe v. Mazel Thirty, LLC

(A-95) (067237)

Argued November 30, 2011

Decided February 2, 2012

LONG, J., writing for a unanimous Court.

In this appeal, the Court considers whether summary judgment properly was granted to a landowner on whose private premises a police officer, engaged in a safe-streets initiative, fell and was injured.

Plaintiff, Officer Willie Rowe, was patrolling a particular area as part of the police department's "Safe Block" initiative. Plaintiff's duties included checking vacant apartment buildings and houses. Between 4:00 p.m. and 5:00 p.m., plaintiff approached a vacant apartment building owned by defendants to verify that the basement door was secured. Plaintiff had visited defendants' building once before on a similar patrol. As he descended the stairs that led from the sidewalk down to the basement door, grasping the handrail and shining his flashlight, the cement that was covering the steps broke, causing him injuries. At his deposition, plaintiff stated that when he began his descent, the staircase had "the same appearance" as it had had during his previous visit. Defendants' representative testified that he was aware of the Safe Block initiative, that he had received a notice to cure from the building department regarding an unsecured basement door, and that he was aware that a police officer had come to check the basement door in the past. Plaintiff's complaint alleged that defendants carelessly and negligently supervised, maintained and controlled their premises and failed to adequately warn him of the hazardous conditions. Defendants moved for summary judgment, arguing that plaintiff's presence was unforeseen and that he was aware of the condition of the steps. Plaintiff countered that both of those contentions were based on contested issues of fact. The trial court granted summary judgment, concluding that defendants could not have foreseen that police officers would be performing their duties at the time and place of the accident; that the defect was obvious; and that plaintiff knew the stairs were dangerous yet proceeded down them. The Appellate Division affirmed, finding it unnecessary to determine what duty was owed because, as a result of his prior visit, plaintiff was aware of the dangerous condition before he decided to descend the stairs. The Court granted plaintiff's petition for certification. 205 N.J. 318 (2011).

HELD: The police officer stood in the shoes of a licensee to whom the landowner owed a duty to warn of any dangerous conditions of which the owner knew or had reason to know and of which the officer was reasonably unaware. Because this record presented a genuine issue of material fact regarding the officer's awareness of the dangerous condition, the grant of summary judgment was a usurpation of the jury's function.

1. Dissatisfaction with the "firefighters' rule," which prevented emergency responders injured on private property from recovering in tort from a negligent landowner, led to the enactment of N.J.S.A. 2A:62A-21 and N.J.S.A. 2A:62A-22. That law abrogated the firefighters' rule, permitting public officers to have their claims against landowners adjudicated based on the same standards that govern all other citizens. (pp. 6-8)

2. The classic common law approach to premises liability is predicated on the status of the person on the property at the time of the injury as an invitee, licensee, or trespasser. The invitee comes by invitation, express or implied, generally for some business purpose of the owner. A landowner owes the invitee a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered. The landowner is required to conduct a reasonable inspection to discover latent dangerous conditions. The licensee is permitted to come upon the property, and does so for his own purposes. Although the owner does not have a duty to discover latent defects when dealing with licensees, the landowner must warn a licensee of any dangerous conditions of which the owner knows or reasonably should know and of which the licensee is reasonably unaware. The trespasser is neither invited nor suffered. A landowner has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm. (pp. 8-11)

3. Where the status of the plaintiff does not fall into one of the pre-determined categories, the Court must determine whether the landowner has a duty to exercise reasonable care. That inquiry involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and public policy concerns. The same considerations apply to the common law categories, but through the evolution of our common law, the duty analysis has already been performed in respect of invitees, licensees, and trespassers. Those standards continue to guide the Court. (pp. 11-13)

4. Officers performing their official duties may theoretically be categorized either as an invitee or licensee, depending on the facts. Where the presence of the officer is requested for a purpose directly or indirectly connected to the owner's business, or where an official enters an area of private property to which the public is invited, the officer is afforded the status of an invitee. Where the officer, in the performance of his duties, enters onto property to which the public is not invited, he is not there to advance an interest of the owner, and there is no expectation that the premises have been prepared for him, he is deemed to be a licensee. That status springs from a number of different notions, including the officer's privilege to enter, the fact that the officer knows his coming is not completely unanticipated, and the public's understanding that police and firefighters may, from time to time, enter onto private areas of private property in furtherance of their public duties. (pp. 13-17)

5. Plaintiff was not invited onto defendants' premises for business purposes; nor did he enter an area of defendant's property open to the public. Rather, plaintiff was privileged to and, in fact, did enter a non-public portion of defendants' premises in furtherance of the Safe Block initiative. Under those circumstances, plaintiff was a licensee, entitled to a warning of dangers of which the landowner was aware or reasonably should have been aware and of which the officer was reasonably unaware. (p. 18)

6. The Appellate Division's conclusion that plaintiff was aware of the dangerous condition before deciding to descend the stairs rests largely on plaintiff's deposition testimony that the steps looked the same as on his previous visit. That testimony does not indicate that plaintiff observed the stairs to be in a state of obvious disrepair on either visit, or that what he observed put him on notice of a dangerous condition. Because there is no evidence that plaintiff believed that the stairs were dangerous originally, the suggestion that similarity of appearance was notice of danger presents a question for the jury. The Appellate Division also cited the fact that plaintiff took precautions in descending the stairs by shining a flashlight and holding onto the railing as evidence of his foreknowledge of the danger. However, a jury could conclude that those precautions would have been taken by any reasonable person descending a flight of stairs at dusk. (pp. 19-20)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and JUDGE WEFING (temporarily assigned) join in JUSTICE LONG's opinion.

Argued November 30, 2011

On certification to the Superior Court, Appellate Division.

JUSTICE LONG delivered the opinion of the Court.

The issue presented in this appeal is whether summary judgment properly was granted to a landowner on whose private premises a police officer, engaged in a safe-streets initiative, fell and was injured. In such circumstances, the police officer stood in the shoes of a licensee to whom the landowner owed a duty to warn of any dangerous conditions of which the owner knew or had reason to know and of which the officer was reasonably unaware.

Here, the Appellate Division ruled that the officer's foreknowledge of the dangerous condition of the property eliminated any duty on the part of the landowner, as a matter of law. Because this record presented a genuine issue of material fact regarding the officer's awareness of the dangerous condition, the grant of summary judgment was a usurpation of the jury's function, requiring reversal.

I.

Because of the posture of this case -- the grant of summary judgment -- we view the evidence in a light most favorable to the non-moving party and afford that party all legitimate inferences. R. 4:46-2(c). So viewed, the facts are as follows: On December 23, 2005, Officer Willie Rowe (plaintiff) was patrolling Lenox Avenue between South Arlington and South Walnut Streets in East Orange, New Jersey as part of the local police department's "Safe Block" initiative. Plaintiff's duties were to "control peoples' entrance on the streets, check the . . . vacant apartment buildings and the houses on the street, [and] arrest anyone for criminal violation[s], be it [for] drugs, thefts or warrants." Sometime between 4:00 p.m. and 5:00 p.m. plaintiff approached a vacant apartment building that was undergoing construction and renovations, to verify that the basement door was secured. The owners of the building in question are Mazel Thirty, LLC and 40-50 Lenox Realty Associates, LLC (defendants). Plaintiff had visited defendants' building once before on a similar patrol.

A set of exterior stairs made of brick and covered in a cement wash led from the sidewalk down to the basement door, and as plaintiff descended, grasping the handrail and shining his flashlight, "the cement that was covering the steps broke." Plaintiff's left foot got caught on the step and "bent backwards" while his right foot slid down several steps as he held onto the railing with his legs in a "split" position. Although he never fell to the ground completely, plaintiff felt numbness in his left leg and had difficulty limping back up the stairs. At his deposition, plaintiff stated that when he began his descent, the staircase had "the same appearance" as it had had during his previous visit. As a result of the incident on December 23, plaintiff experienced chronic pain in his legs and is no longer able to work as a police officer.

Abraham Brender, the building owners' representative, testified that he was aware of the Safe Block initiative but had never personally seen officers on foot patrol. Brender acknowledged that he had received a notice to cure from the building department regarding an unsecured basement door. He further stated that he was aware that a police officer had come to check the basement door in the past. On that occasion, according to Brender, the building superintendent had sent the officer away after explaining there was ongoing construction work and that the building was locked at night with guard dogs in place after working hours.

Procedurally, the case arose when plaintiff filed suit against defendants alleging that they "carelessly and negligently supervis[ed], maintain[ed] and controll[ed]" their premises and "fail[ed] to adequately warn plaintiff of the hazardous conditions present on the building and stairs." Defendants moved for summary judgment. Although acknowledging the dangerous condition of the stairs, they argued that plaintiff's presence was unforeseen and that, in any event, plaintiff was aware of the condition of the steps because he had previously been "on that ...


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