April 30, 2012
CHRISTOPHER RUBESSA AND LAURIE RUBESSA, PLAINTIFFS-APPELLANTS,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Rubessa regarding dangers of which the invitee was unaware."
Plaintiff then filed the present appeal, contending that the trial court erred in granting summary judgment in Brown's favor. He argues that Brown owed him, as an invitee on the premises, a duty of reasonable care as to the condition of the ladder. He further contends that Brown breached that duty and that there are genuine issues of material fact as to her alleged liability for his injuries. In particular, plaintiff asserts that Brown should have inspected the ladder to see if it had been placed on uneven or unstable ground, or if it had been improperly secured.
As a preliminary matter, we address whether this court has jurisdiction over the appeal. Although Brown has not requested that we dismiss the appeal on jurisdictional grounds, there is no final judgment that resolves all issues as to all parties, as is required for an appeal as of right pursuant to Rule 2:2-3, because plaintiff's separate claims against Warner were never adjudicated. After filing the appeal, plaintiff voluntarily dismissed his claims against Warner in the trial court, without prejudice to those claims being potentially reinstated at a later time. That action does not eliminate the interlocutory character of the trial court's order granting summary judgment in favor of Brown, the co-defendant. See Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-59 (App. Div. 2008); CPC Int'l, Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 365-66 (App. Div. 1998), certif. denied, 158 N.J. 73, 74 (1999); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2.4 on R. 2:2-3 (2012) (noting that "a dismissal without prejudice of either an issue or a party . . . with the contemplation of commencement of a subsequent action and entered for the purpose of rendering an otherwise interlocutory order appealable will preclude the finality and hence the appealability of that order"). Nevertheless, given the nature of plaintiff's substantive arguments, we elect to consider the merits of the summary judgment order for purposes of expediency and, therefore, grant plaintiff leave to appeal that order, nunc pro tunc.
Even viewing, as we must, the record in a light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), there are no genuine issues of material fact to support a finding that Brown, by virtue of her status as the homeowner, is liable for plaintiff's fall from the ladder. That conclusion inexorably applies, regardless of whether plaintiff was a social guest, a business invitee, or had some other common-law status on the premises. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 435-38 (1993) (indicating the trend in the law to abandon the common-law classifications traditionally used in premises liability cases).
Several aspects of this case are similar to those presented in Longo v. Aprile, 374 N.J. Super. 469 (App. Div. 2005). In that case, the plaintiffs and defendants were neighbors who regularly helped one another out with household projects. Id. at 471. They were never paid for this neighborly assistance. Ibid. One day, plaintiff Ronald Longo was power-washing the defendants' roof when he tripped backwards on the drip ledge and fell to the ground. Ibid. The defendants were not involved in, nor did they supervise, the power-washing project. Ibid. The trial court found that the injured neighbor was a social guest because "there was no enforceable commercial promise" between the parties. Ibid. Moreover, the trial court found that the defendants were not liable because the drip ledge was not a latent condition, but rather was "open, clearly visible, and not concealed in any way[.]" Ibid. Thus, the trial court granted the defendants' motion for summary judgment. Id. at 470. We affirmed the trial court's decision, finding that the injured plaintiff was a social guest and that the danger he encountered was "self-evident and, therefore, not actionable." Id. at 474-75.
The present fact pattern is analogous to Longo in several respects. Plaintiff was performing a benefit for defendants -- either, as plaintiff contends, "baby-sitting" the property, or serving as an informal supervisor or contractor -- just as the injured plaintiff provided a benefit to his neighbors in Longo. Additionally, the dangers that plaintiff allegedly encountered, here, the ladder's allegedly-wobbly placement against the house on a frosty day, should have been similarly "self-evident." See id. at 474.
There is no contention here that the ladder had a cracked rung or some other latent defect. Brown was not on the property at the time of the accident. Moreover, plaintiff had an extensive background in construction. Brown could have reasonably believed that plaintiff, with his construction experience, would have recognized the danger of walking up a ladder that might have been placed on an uneven patch of ground or possibly covered in frost. Given these circumstances, Brown, like the homeowner defendants in Longo, should not be found liable for plaintiff's injuries. See also Restatement (Second) of Torts § 342 (1965) (noting that owners are only responsible for warning social guests of dangers the guests would not recognize and of which the owners are aware or should have been award).
The absence of liability on the part of Brown would not change even if, as plaintiff argues, he were classified as a business invitee. Plaintiff relies upon Sanna v. National Sponge Co., 209 N.J. Super. 60, 62 (App. Div. 1986), but that case does not compel a finding of liability here. In Sanna, the plaintiff was injured after falling from a temporary scaffold. Id. at 62. The plaintiff claimed that the accident had been caused by an unstable, greasy ladder. Id. at 64. At the end of the plaintiff's case in chief, the trial court dismissed his claim. Id. at 62. We reversed that dismissal because the jury could have determined that the defendant negligently maintained its premises and, specifically, set up faulty scaffolding. Id. at 68-69.
Unlike the defendant in Sanna, there is no proof here that Brown was directly involved in the placement or use of the ladder or, for that matter, in any facet of the home renovations. Although the defendant in Sanna might have negligently set up the scaffold, there is no evidence in the present case that Brown herself placed the ladder against the house. Indeed, one of the construction workers could have repositioned the ladder on the morning of the accident, regardless of where the ladder had been situated when Brown left for work that morning. Brown was entitled to reasonably assume that plaintiff, given his background in construction, would have discovered and realized the danger of climbing the ladder if it were, in fact, propped in an unstable manner. See Hopkins, supra, 132 N.J. at 434; see also Restatement (Second) of Torts § 343 (1965) (noting that owners are only responsible for warning business invitees of dangers the owners should have discovered and which the invitees would not have recognized).*fn3
In sum, the trial court did not err in granting summary judgment as to Brown, as there are no genuine issues of material fact that could support her liability in this case under the applicable principles of negligence law.