May 21, 2013
ROBERTA BUFFALOE, Plaintiff-Appellant,
EUGENE GILBERT and PEARL GILBERT, Defendant-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3153-09.
Demetrius J. Parrish argued the cause for appellant.
Renee E. Scrocca argued the cause for respondents (Testa, Heck, Scrocca & Testa, P.A., attorneys; Justin R. White, on the brief).
Before Judges Axelrad and Nugent.
In this premises liability action, plaintiff Roberta Buffaloe appeals from the summary judgment dismissing her complaint against defendants Eugene Gilbert and Pearl Gilbert, who owned but did not occupy the house where plaintiff was injured while attending a cookout. The trial court determined that plaintiff, a social guest, had produced no evidence that defendants knew about the defect in the floor of a deck that allegedly caused her injury. We affirm.
Viewed in the light most favorable to plaintiff as required by Rule 4:46-2, the evidence the parties presented on the summary judgment motion established the following facts. During the afternoon of September 2, 2007, plaintiff attended a holiday family cookout along with approximately forty other people at her cousin, Steven Moore's Sicklerville home. The home was owned by defendants, who were Moore's father-in-law and mother-in-law.
While at the cookout, plaintiff walked to the upper level of an outside deck where there were two tables with food. Beneath but protruding from one of the tables was a rug approximately "two feet by three feet." As plaintiff approached that table, she stepped on the protruding portion of the rug with her right foot, heard a crack, and "went through a hole." According to plaintiff, the hole did not look like someone had cut it out, but rather looked like the deck "had broken."
Plaintiff did not know who put the rug beneath the table, but another guest said she had seen Steven Moore place the rug before plaintiff arrived at the cookout. The other guest also told plaintiff that when Steven placed the rug there was no hole beneath the rug, but the deck "was kind of flimsy." Plaintiff had no other information from any source suggesting that defendants put the rug over that area of the deck. Defendants had moved out of the house and into a new home shortly before the weekend of the cookout.
Plaintiff filed a single-count complaint against defendants in June 2009. She named no other parties. Defendants filed an answer and later filed a summary judgment motion after discovery ended. In December 2011, following oral argument on the summary judgment motion, the trial court delivered an oral opinion and granted the motion, explaining that defendants had a duty to warn guests of known defects, but that plaintiff had presented no evidence that defendants knew of the weakness or hole beneath the carpet on the deck. The court filed a memorializing order the same day. Plaintiff appealed.
On appeal, plaintiff contends the trial court erred by evaluating defendants' credibility when she presented evidence contradicting their assertions of material fact. A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so onesided that one party must prevail as a matter of law, ' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214, (1986)).
When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J.Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.
The parties do not dispute that plaintiff was a social guest at the home occupied by Steven Moore and his family, and owned by defendants. "The duty of care owed to a social guest is greater than that owed to a trespasser, but less than that owed to a business visitor." Parks v. Rogers, 176 N.J. 491, 497 (2003). Although landowners have no "duty to scour the premises to discover latent defects[, ]" they must disclose to social guests or repair known dangerous conditions. Id. at 498. A plaintiff must produce proofs that "show that the landowner knew of a particular condition of the property[.]" Ibid.
Here, plaintiff did not establish whether the defect in the deck was latent or patent, although a jury could infer from the placement of the rug that Steven Moore was aware of it. Plaintiff produced no proofs, however, that defendants knew about the defect. Absent such proofs, defendants had no duty to warn plaintiff of the dangerous condition or repair it.
Plaintiff argues that a jury could infer that defendants knew about the defect based upon contradictory evidence as to whether defendants were present at the cookout. Defendants say they were not. To contradict defendant's assertions, plaintiff produced affidavits from Sara Wesby and Derrick Buffaloe in which they stated they saw defendants at the cookout. But Derrick Buffaloe, plaintiff's son, stated in his affidavit that he did not see defendants at the cookout until after he returned from taking his mother to the hospital following her accident. Sara Wesby, Steven Moore's mother, stated in her affidavit that she thought the home was her son's home and that she did not see defendants at the cookout until after plaintiff's accident. Neither affidavit suggests that defendants were present at the cookout before plaintiff had her accident. For that reason, no inference can be drawn from the affidavits that defendants knew of any defect in the deck.
Plaintiff also argues that a jury could infer from defendant Pearl Gilbert's deposition testimony that she and defendant Eugene Gilbert knew about the defect in the deck before plaintiff's accident. Specifically, plaintiff cites defendant Pearl Gilbert's testimony that her daughter, Delores Moore, said plaintiff had gone up to the patio "where it was blocked off"; and that plaintiff "wasn't supposed to go up there or something and she fell[.]" Plaintiff suggests that from defendant's testimony that the area where plaintiff fell was blocked off, a jury could infer both defendants knew there was a defect in that area. We disagree. Even assuming Delores Moore's hearsay statement to defendant Pearl Gilbert was competent evidence on the motion it did not establish Pearl Gilbert's pre-accident knowledge about the condition of the deck
Plaintiff presented no evidence in opposition to defendants' summary judgment motion to establish either the nature of the defect in the deck or that defendants knew a defect existed Consequently she failed to establish a necessary element of a landowner's liability to a licensee or social guest