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Christopher Rubessa and Laurie Rubessa v. Michael Warner

April 30, 2012

CHRISTOPHER RUBESSA AND LAURIE RUBESSA, PLAINTIFFS-APPELLANTS,
v.
MICHAEL WARNER, DEFENDANT,
AND CARRIE BROWN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4952-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2012

Before Judges Sabatino and Fasciale.

This negligence action arises out of injuries that plaintiff*fn1 Christopher Rubessa sustained when he fell off a ladder propped against the private home where a friend lived. The trial court granted summary judgment to the home's owner, finding no genuine issues of material fact to establish that the owner had breached any duty of care to plaintiff. We affirm.

These are the pertinent facts developed in discovery. In 2007, defendant Carrie Brown bought a house in Pompton Lakes. Her boyfriend at the time was co-defendant Michael Warner. Only Brown's name appears on the deed as the sole purchaser, although Warner claimed at his deposition that he and Brown had contemplated buying the house together but that his name was removed from the title at closing for financing purposes.

Renovations on the house began shortly after the purchase. Warner oversaw the construction as it progressed. Brown generally was not involved with the construction.

In January 2008, plaintiff, a long-time friend of Warner's, came to New Jersey from Georgia. Plaintiff had worked in the construction trade since about 1985 and had supervised a number of projects. According to Warner's deposition testimony, plaintiff came to New Jersey to oversee the renovations on the home. Brown testified that she wrote several checks to plaintiff's wife to pay him for the work that he did at the property. However, there was no written contract for plaintiff's services. According to plaintiff's own deposition testimony, he was not placed in charge of the job site, and supervising responsibilities were exercised by Warner. Plaintiff contends instead that his role was simply to "baby-sit" the property, acting as a caretaker for the defendants.

On the morning of January 10, 2008, plaintiff climbed up a ladder that was leaning against the side of the house. The ladder was propped against the roof, but not tied to it. Plaintiff went up and handed coffee and donuts to the day laborers who were then working on the roof. As he came back down the ladder, it began to slide to the left. Plaintiff fell off the third or fourth rung and struck the ground. He fractured his left ankle and sustained other injuries.

Warner, who had witnessed plaintiff's fall, testified he had never seen the ladder slide or move before. He recalled that on the morning of the accident, the ladder had been level, with both of its feet flat on the ground, and the ground was not frozen. Plaintiff, on the other hand, stated that he "remember[ed] seeing the leg, the left leg of the ladder had been sunk into the ground, which made [him] believe that that's probably what caused the ladder to start sliding[.]" Plaintiff also stated that he thought "[t]here may have been frost on the top [] where the ladder was leaning[.]"

Brown, the homeowner of record, was not present at the time of plaintiff's fall. There is no allegation or proof that she had placed the ladder in its position against the house. Nor is there any proof that she was aware of the manner in which the ladder had been propped or that she had told anyone to put it there.

Plaintiff did not know who owned the ladder or brought it to the property. Brown testified that the ladder did not belong to her, but that she believed it belonged to Warner. Warner testified at his deposition that he did not know who owned the ladder and that it "may have been left [by the seller] with the house." However, in 2010, Warner apparently told an insurance investigator that he owned the ladder.

Plaintiff sued Brown and Warner, alleging that they were negligent with respect to the ladder's placement against the house and responsible for his injuries. In the meantime, Brown and Warner ended their relationship. Brown filed an answer to the complaint, denying liability. Warner did not file an answer, and default was entered against him.*fn2

The trial court granted Brown's motion for summary judgment and dismissed the complaint against her. In the motion judge's oral ruling, he noted that "it is quite clear that Carrie Brown had no duty to warn Mr. ...


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