CAROL HOUSTON and JAMES M. HOUSTON, SR., Plaintiffs-Appellants,
PAUL GICHUHI, an individual, and LUWAN INVESTMENTS, LLC, Defendants/Third-Party Plaintiffs-Respondents,
BONNIE HOUSTON, Third-Party Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8717-10.
Steven P. Lombardi argued the cause for appellants.
Jason A. Meisner argued the cause for respondents (Coughlin Duffy LLP, attorneys; Mr. Meisner, of counsel and on the brief; Nicole J. Figliolina, on the brief).
Before Judges Reisner and Hoffman.
Plaintiffs Carol and James Houston appeal from a September 14, 2012 order granting summary judgment in favor of defendants Paul Gichuhi (Gichuhi) and Luwan Investments, LLC (Luwan), dismissing their slip-and-fall premises liability action. For the reasons that follow, we affirm as to the claim against Gichuhi, and reverse and remand as to the claim against Luwan.
These are the most pertinent facts. On January 16, 2009, plaintiff fell and broke her ankle while assisting her sister-in-law move into an apartment in Irvington. The apartment is located on the third floor of an apartment building (the building) owned by Luwan. The building is a three-family dwelling unit, with an apartment on each floor. There are two doors immediately located inside the building's entrance on the first floor. One door leads to the first floor apartment, while the other door leads to a staircase, which is used to access the second and third floor apartments. There is a landing located outside each apartment.
The stairwell has two light fixtures located in the landing areas, both of which are controlled by switches. One light fixture is located in the first floor landing area, while the other is located in the third floor landing area. The switch for the third floor landing light fixture is located on the wall in the immediate vicinity of the door to the third floor apartment. While the record is not clear, it appears the switch for the first floor landing light fixture, the one relevant to this case, is located somewhere on the wall between the second and third floor landings.
According to plaintiff, her fall occurred at approximately 8:00 p.m., when she walked down the stairs and tripped head first at the end of the second landing heading down to the first landing, resulting in injury. Prior to her fall, plaintiff had been up and down the stairs anywhere between five and fifteen times. Plaintiff testified at her deposition that at the beginning of the move, there was "some daylight, " but at the time of her fall, it was dark outside. According to plaintiff, the light fixture in the area of the first floor landing was off and it was dark in the area where she fell. Plaintiff testified that despite looking for it, no one who was helping her sister-in-law move into the apartment (plaintiff, her husband, her sister-in-law, and stepson) was able to locate the light switch prior to plaintiff's fall.
Plaintiff said that after she fell, a woman who was living in the first floor apartment came into the hallway and stated, "I told Paul to leave this light on. This light is supposed to be on at all times[.]" There is no indication that this woman was deposed nor was a statement from her produced.
Plaintiffs did not retain an expert. Following discovery, defendants filed a motion for summary judgment, arguing among other things that plaintiffs failed to present sufficient evidence that the lighting in the hallway of the building created a dangerous condition. Additionally, defendants argued that Gichuhi was individually entitled to summary judgment because ...