Cerciello v. MacConchie

Decision Date05 July 1995
Docket NumberA-Z
Citation660 A.2d 552,282 N.J.Super. 436
PartiesJoseph CERCIELLO, Jr., Plaintiff-Appellant, v. Thomas MacCONCHIE and Gale MacConchie, husband and wife; Defendants-Respondents, and John Almand, manufacturer; and Angler Manufacturing, manufacturer; Frank's Boats; Walter Rogers; John Doe, being a fictitious name for a supplier or distributor of pleasure boats and/or boat seats; Pomtanette, Inc.; Garelick Manufacturing Co., manufacturer of the seat on which plaintiff was injured; and John Moe, being fictitious name for a manufacturer of the boat, Defendants.
CourtNew Jersey Superior Court — Appellate Division

Drazin & Warshaw, Red Bank, for appellant (John R. Connelly, Jr., of counsel, and on the brief).

Dowd & Reilly, Red Bank, for respondents Thomas and Gale MacConchie (Bernard M. Reilly, on the brief).

Before Judges PRESSLER and PETRELLA.


This personal injury action arises out of a pleasure-boating accident that occurred on the afternoon of August 13, 1988. Plaintiff Joseph Cerciello, Jr. appeals from an order granting summary judgment dismissing his complaint. Because the trial court relied upon principles of liability not here applicable, we reverse the court's order dismissing plaintiff's cause of action against defendant Thomas MacConchie, the owner and operator of the vessel herein involved. We affirm, however, that part of the order dismissing plaintiff's claim against defendant Gale MacConchie.

The relevant facts are undisputed. Plaintiff and defendant Thomas MacConchie were friends of long-standing, and plaintiff was MacConchie's frequent guest on recreational excursions on the twenty-one-foot fiberglass open fishing boat which MacConchie purchased from its previous owner in 1986. Plaintiff sometimes assisted MacConchie in performing minor repairs to the boat, most often relating to a faulty charging system, and in wiping down the boat at the end of the day's outing. The craft was propelled by an engine situated at the rear and was equipped with two seats, one for the operator and one for a passenger, located in the cabin toward the front of the boat. A pole supported each seat, the underside of which consisted of a piece of plywood. The seat base was affixed to the pole by means of a bracket screwed into the plywood. The seat back was, in turn, attached to the seat base by means of additional brackets that were also screwed into the plywood.

On the day of the accident, plaintiff met MacConchie in the early afternoon and assisted him in charging the boat's batteries. Gale MacConchie, Thomas's wife, then arrived at the dock, and all three went for a ride in the boat. After spending a few hours in Belford Channel, where they swam and met other friends, the party returned to shore in order to drop off Mrs. MacConchie, who had a late afternoon appointment.

The two men again headed out into the channel, MacConchie driving and plaintiff seated in the passenger chair. Mr. MacConchie was increasing speed as the boat approached the end of Belford Channel when suddenly the back of the passenger chair gave way causing plaintiff to fall backwards, landing on his neck, back and shoulders. As a result of this fall, plaintiff suffered spinal injury. Evidently, neither plaintiff nor defendant Thomas MacConchie had been aware that the seat was in any imminent danger of collapsing, and, in fact, Gale MacConchie had earlier that day been seated there with her child. It appears, however, that the cause of the accident was the rotted state of the plywood underneath the seat causing the seat-back brackets to tear away.

Plaintiff filed a complaint and amended complaint asserting causes of action in negligence against Thomas MacConchie and Gale MacConchie. 1 The MacConchies answered and, following discovery, they moved for summary judgment dismissing the complaint and cross-claims against them. They argued that the actionability of their conduct was subject to the standard governing liability to social guests and consequently that their only duty was to warn of a known danger. Since plaintiff was unable to adduce facts supporting their knowledge of the hazardous condition, they contended that his cause of action failed. Moreover, defendants contended that no viable cause of action existed against Mrs. MacConchie, who was neither owner nor operator of the boat.

In opposing the motion, plaintiff argued that ordinary due-care principles of negligence applied. He thus contended that since Thomas MacConchie had had the opportunity to observe the deteriorated condition of the wood prior to the accident, and should have made that observation, he was negligent in allowing plaintiff to use the seat which he knew or should have known was in a state of disrepair. Plaintiff relied both on the deposition testimony of MacConchie, who described his practice of removing the seats for winter storage, as well as on photographs showing the rotted condition of the plywood base of the seat. The trial court, relying on the common-law principles governing the liability in negligence of owners and possessors of real estate, granted defendants' motion, concluding that they had only a duty to warn of a dangerous condition of which they were aware and that plaintiff had failed to demonstrate directly or by inference defendants' requisite knowledge. R. 4:46-2.

The trial court relied upon well-settled principles governing the obligations an occupier of land owes to those coming upon the land. Traditionally, the nature of the duty depends upon whether the person is an invitee, a licensee or a trespasser. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), affirming, 252 N.J.Super. 295, 599 A.2d 924 (App.Div.1991). See, e.g., Snyder v. I. Jay...

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  • Bruno v. Merv Griffin's Resorts Intern. Casino
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • February 23, 1999
    ...owner created dangerous condition even though plaintiff did not have evidence of how accident occurred); Cerciello v. MacConchie, 282 N.J.Super. 436, 660 A.2d 552, 555 (N.J.Super.1995) (reversing grant of summary judgment because issues of material fact existed in negligence action against ......

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