Arvanitis v. Hios

• Decision Date: 22 January 1998
• Citation: 705 A.2d 355,307 N.J.Super. 577
• Parties: George P. ARVANITIS and Hristina Arvanitis, Plaintiffs-Appellants, v. George HIOS and Efstathia Hios, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 577

307 N.J.Super. 577

705 A.2d 355

George P. ARVANITIS and Hristina Arvanitis, Plaintiffs-Appellants, v. George HIOS and Efstathia Hios, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Jan. 6, 1998.

Decided Jan. 22, 1998.

Roberta L. Tarkan, Hoboken, for plaintiffs-appellants (Myers & Pico, attorneys; Deborah L. Pico, Fair Lawn, on the brief).

Robert K. Walsh, Cedar Grove, for defendants-respondents (Bashwiner and Woods, attorneys; Mr. Walsh, on the brief).

Before Judges PRESSLER, CONLEY and WALLACE.

The opinion of the court was delivered by

CONLEY, J.A.D.

Plaintiff George Arvanitis (plaintiff) was injured while attempting to assist defendant Efstathia Hios (Efstathia) in convincing her husband, defendant George Hios (George), to take his medication. Plaintiff and his wife, Hristina Arvanitis, appeal summary judgments granted in favor of both defendants. We reverse.

Since the appeal arises from summary judgments, we must decide " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533, 666 A.2d 146 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 106 S.Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)). The evidence, of course, must be considered most favorably towards the opposing party. Brill, supra, 142 N.J. at 523-24, 666 A.2d 146.

That evidence, as presented to the motion judge, is not complex. In 1992, following a recurrence of a 1985 episode of hallucinations, George was diagnosed as a manic depressive. Lithium was prescribed to control his condition. During the earlier episode, George had become violent and had "grabbed [Efstathia] by the throat like [he] was choking her...." A few weeks before the incident during which plaintiff was injured, George voluntarily stopped taking his medication. According to Efstathia's police statement following the incident, George "had been striking her lately." It is a reasonable inference that George's violence was a product of his not taking his medication.

There is no indication that plaintiff, who is George's nephew, was aware of the 1985 violent conduct or the then current violence on the part of George. He did know that George had stopped taking his medication and "was losing control somehow," and until the incident on May 20, 1993, he believed that George generally was "okay."

On the day of the incident, Efstathia called plaintiff and asked him to come to her house because George was "a little bit upset" and would not take his medication. After receiving the phone call, plaintiff went first to George's deli shop. George was there and after they had coffee, he closed the shop. When plaintiff asked him how he was, George told him he was "not feeling that well" and that he did not know what was wrong or what was bothering him. Other than that, George seemed fine to plaintiff.

They both then went to the defendants' home, where Efstathia asked plaintiff to come in with George. He came in and they sat down in the living room. At that point, Efstathia and plaintiff attempted to persuade George to take his medication. George refused and became angry. He suddenly stood up to knock the medication out of his wife's hand and reached out to strike her. Plaintiff stood up to intercede. During the commotion, his leg broke through defendants' glass coffee table and was cut by the glass. During his deposition testimony, plaintiff could not articulate exactly how he cut his leg. He said:

[George] wants to take the medication from his wife's hand, throw them up and then hit her ... I got up and stopped him ... I told him stop, don't do this type of nonsense ... I found myself with my foot cut on top of the table ... I must have lost my balance. The table was in front of me, and as I turn around was holding him, I lost my balance and I fell on the table.

And in his answers to interrogatories, he explained:

Defendant would not take his medication and was becoming very agitated. Defendant became violent and stuck his wife. During the commotion, I slipped and fell into the glass table.

I

During oral argument on the summary judgment as to Efstathia, plaintiff argued that Efstathia "knew of her husband's propensity for violence when he wasn't on the medication," and not only did not warn him of that but invited him to come in and help her try to get George to take his medication. Those circumstances, he urged, created a duty of care on Efstathia's part which she breached by either not warning him or by requesting his help. The motion judge, however, responded that plaintiff "doesn't even know how he got his foot cut," and then engaged in the following exchange:

[PLAINTIFF'S ATTORNEY]: No, I understand that, but that's why I don't think that you can grant summary judgment. It's a Jury question.

THE COURT: You watch me. You don't think so? You watch me.

[COUNSEL]: It's a Jury question.

THE COURT: It is not a Jury question until you show me that there's a breach of a duty. The motion is granted.

A prerequisite to recovery on a negligence theory is, of course, a duty owed by a defendant to a plaintiff. J.S. v. R.T.H., 301 N.J.Super. 150, 154, 693 A.2d 1191 (App.Div.), certif. granted, 151 N.J. 464, 700 A.2d 876 (1997). The existence of a duty is a question of law to be determined by a judge and, ultimately, is a question of fairness and policy. Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292, 676 A.2d 1036 (1996); Dunphy v Gregor, 136 N.J. 99, 108, 642 A.2d 372 (1994). Ordinarily, on the other hand, whether there was a breach of the duty, foreseeability, and proximate cause are issues "peculiarly within the competence of a jury." Anderson v. Sammy Redd & Assocs., 278 N.J.Super. 50, 56, 650 A.2d 376 (App.Div.1994), certif. denied, 139 N.J. 441, 655 A.2d 444 (1995).

The parties have addressed Efstathia's duty of care from the perspective of the traditional common law concepts applicable to a landowner towards a person on his or her property. Historically, whether a duty exists and to what extent has been measured by the right of that person to be on the property, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433, 625 A.2d 1110 (1993), with the status of the person determined to be a business invitee, licensee, or trespasser. Ibid.

The parties seem to agree that plaintiff should be considered a social guest on defendants' property. In this respect:

The social guest enjoys the hospitality of the host and expects that the host will take the same care of him as he does of himself and his family. However, the host must warn a social guest of risks of harm or dangerous conditions of which the host has knowledge and the guest is unaware.

[Benedict v. Podwats, 109 N.J.Super. 402, 407, 263 A.2d 486 (App.Div.), aff'd, 57 N.J. 219, 271 A.2d 417 (1970) (emphasis added).]

Moreover, as the Supreme Court observed in Hopkins v. Fox & Lazo Realtors, supra, " 'the historical classifications of the degrees of care owing to visitors upon land ... are undergoing gradual change in the law in favor of a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others.' " 132 N.J. at 435, 625 A.2d 1110 (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 277, 445 A.2d 1141 (1982)). But see Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 515, 694 A.2d 1017 (1997) ("[a]lthough we do not heavily rely on the common law classification of the [injured party] as an invitee, we cannot disregard that fact.").

Our recent decision in J.S. v. R.T.H., supra, 301 N.J.Super. 150, 693 A.2d 1191, is instructive. In J.S., plaintiffs, two young girls, were sexually assaulted by a neighbor for more than a year. Plaintiffs' parents brought an action against the neighbor and his wife, alleging that the wife was negligent because she knew of her husband's history of pedophilia and should have either warned the children or taken steps to protect them. Reversing the summary judgment granted in favor of the wife, we held that under the circumstances set forth by the plaintiffs, the wife did have a duty to take reasonable steps to prevent harm, and her knowledge or awareness of her husband's predilections was a disputed material fact. Id. at 154, 693 A.2d 1191. In doing so, we noted:

Our Supreme Court has described "[t]he determination of the existence of a duty ultimately [as] a question of fairness and policy." The facts of a case inform the court in determining whether a duty exists. While foreseeability alone does not create a duty, there can be no duty unless harm to another is reasonably foreseeable.

[J.S., supra, 301 N.J.Super. at 155, 693 A.2d 1191 (quoting Snyder v. American Ass'n of Blood Banks, supra, 144 N.J. at 292, 676 A.2d 1036 (1996)) (citations omitted).]

Further, we noted:

After "weighing ... the relationship of the parties, the nature of the risk, and the public interest," we conclude that if plaintiffs prove [the wife] was aware of her husband's conduct or history, it was foreseeable that he posed a danger to these young girls, and it is fair to hold that Mary had a duty to take reasonable steps to protect them from such danger.... It will be a jury's role to determine the specific contours of her duty, and whether she deviated therefrom, based upon its findings as to the extent of her knowledge and the foreseeability of harm.

[Id. at 156, 693 A.2d 1191 (quoting Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962)).]

Cf. Linebaugh v. Hyndman, 213 N.J.Super. 117, 121, 516 A.2d 638 (App.Div.1986), aff'd o.b., 106 N.J. 556, 524 A.2d 1255 (1987) (" '[a]n abnormally [vicious] domestic animal is like an artificial [dangerous] condition on the property,' " so that where a landlord, "either by his affirmative consent or by his failure to take curative measures, permits another...