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Sussman v. Mermer12/21/2004
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued November 18, 2004
Plaintiff, Stanley J. Sussman, appeals from a summary judgment dismissing his personal injury negligence complaint against defendants, Robert and Mary Mermer. We reverse and remand, finding a genuine issue of material fact as to whether defendant-homeowners' conduct breached the standard of care.
Viewing the evidence most favorably to plaintiff, R. 4:46- 2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts are as follows. On the evening of June 21, 2000, defendants hosted a graduation party for their son at their Cherry Hill home. They had invited plaintiff, who lived around the corner, close to the back of their home. Plaintiff arrived at the party at about 8:00 p.m., entering through the back door, and stayed for two or three hours. Upon leaving the party, plaintiff, unaccompanied, exited via the front door, descending one step onto an exterior porch and then down another step leading to a cement pathway. However, as he descended the second step, plaintiff slipped and fell to the ground, fracturing his right elbow.
It was dark outside at the time. Although the porch is illuminated by two motion-activated 100-watt light fixtures positioned on either side of the front door, the lights had not been turned on when the accident occurred, and no warnings were given. And while plaintiff had visited defendants' home on at least three or four previous occasions to celebrate family events, he does not recall ever walking onto the front porch.
Plaintiff's expert, a professional engineer, inspected the area of the fall. He concluded that the porch-walkway setup was a hazardous condition and in violation of building codes, citing inadequate lighting, dimensionally non-uniform steps, and the lack of a railing or handrail. Despite the expert's report, which was the subject of an unsuccessful defense motion in limine to suppress, the motion judge ultimately granted summary judgment in favor of defendants, reasoning:
Plaintiff's expert indicates in his report the defendants' property was hazardous because of inadequate lighting, steps that were dimensionally non-uniform and single step separated by platforms in lieu of ramps, however plaintiff had been to the home before and was a neighbor of the defendants. Defendants owe no greater duty to the plaintiff as a social guest than they do for themselves.
Further, plaintiff has some responsibility... where he... says that he cannot see a step. The step was not in a place it would not be expected. That is, it was a step coming off of a porch. It was a single step. It's not related to the other step so there's no question that they should be uniform.
There was nothing inherently hazardous in the area. s a social guest the owner of the property is not a guarantor of... a social guest's safety and, therefore, the Court finds that there are no genuine issues of material fact and the motion is granted. On appeal, plaintiff contends that the facts are sufficiently contested as to foreseeable harm and whether the standard of reasonable care has been breached to preclude summary judgment. We agree.
Under the common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest, or business invitee. Parks v. Rogers, 176 N.J. 491, 497 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34 (1993); Synder v. I. Jay Realty Co., 30 N.J. 303, 311-12 (1959). Here, the motion judge considered plaintiff to be defendants' social guest. According him that status under
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