Cummings v. Bahr

• Decision Date: 03 December 1996
• Citation: 685 A.2d 60,295 N.J.Super. 374
• Parties: Cynthia CUMMINGS and James Cummings, Plaintiffs-Appellants, v. Harvey BAHR and Madeline Bahr, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 374

295 N.J.Super. 374

685 A.2d 60

Cynthia CUMMINGS and James Cummings, Plaintiffs-Appellants, v. Harvey BAHR and Madeline Bahr, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 6, 1996.

Decided Dec. 3, 1996.

Michael D. Carroll, Northfield, for plaintiff-appellant Cynthia Cummings (Tomar, Simonoff, Adourian, O'Brien, Kaplan, Jacoby & Graziano, attorneys; Mr. Carroll, of counsel and on the brief; Julie L. Davis, on the brief).

John M. Amorison, Vineland, for defendants-respondents (Jay H. Greenblatt & Associates, attorneys; Nicholas Kierniesky, on the brief).

Before Judges MUIR, Jr., ¹ KLEINER and COBURN.

The opinion of the court was delivered by

KLEINER, J.A.D.

Plaintiffs Cynthia Cummings and John Cummings, suing per quod, appeal from the denial of their second motion for reconsideration of a prior decision which granted summary judgment to defendant Madeline Bahr. ² Our decision, affirming the Law Division, is predicated upon the theory of judicial estoppel and its interrelationship with R. 4:49-2.

I

Defendant, Madeline Bahr, is the widow of Harvey Bahr, who died of cancer in early 1992. Prior to the diagnosis of his fatal illness, Mr. Bahr performed all of the gardening chores on the ten-acre plot surrounding the family home. These chores included tending to rose bushes, planting fig trees, and cultivating grapevines. After Mr. Bahr became ill, he prepared a list of chores which still needed to be attended to on the property. Mr. Bahr had recently acquired some new fig trees and grapevines but had not had the opportunity to plant them formally. One of the tasks on Mr. Bahr's list of chores was the planting of these recent acquisitions.

On April 5, 1992, plaintiff Cynthia Cummings, accompanied by two friends, visited her mother Mrs. Bahr, the defendant. The primary purpose of that visit is in dispute.

Plaintiff contends that she visited her mother for the primary purpose of moving the fig trees and grapevines from where they had been placed by her father to the location where each tree or grapevine was to be permanently planted. As a secondary matter, she was going to partake in a spaghetti dinner. Upon her arrival at her mother's house, plaintiff and her friends were invited in, and refreshments were served. Later, defendant, plaintiff, and plaintiff's two friends walked to the rear of the property where the fig trees and grapevines had been temporarily placed. Although plaintiff had lived with her parents on this property, she had not visited this rear area since moving away in 1974.

Defendant contends that plaintiff, whose husband and children were out of town, was invited to her home primarily for dinner. After dinner, defendant accompanied her daughter and her daughter's two friends to the rear of the property to inspect the fig trees and grapevines to ascertain whether it was feasible to move them.

To reach the rear of the property, the foursome was required to walk through an unkempt, grassy area described by plaintiff as being, more or less, "like a meadow." While the area is not wooded, plaintiff stated in her deposition that there were fruit trees planted in the area. Although the grass in the rear of the home had been regularly cut by Harvey Bahr prior to his final illness, it had not been maintained after his death. The grass was approximately three or four inches high on that afternoon.

While walking in this area, plaintiff's foot became entangled in a "rose runner," or "green rose cane," which was hidden under the grass. Plaintiff, unable to untangle her leg, fell and suffered severe leg injuries including two fractures of her right ankle.

Plaintiff's complaint, filed April 4, 1994, alleged that defendant was negligent in maintaining the property and in failing to warn her of the deteriorated condition of the rear yard including "ground tree roots." The words "invitee," "licensee," or "social guest" are not contained in the complaint. There is, in fact, no allegation or discussion of plaintiff's status on the land within the complaint. Defendant's answer consisted of a general denial of plaintiff's allegations and several separate defenses but did not specifically refer to plaintiff's status.

Defendant filed a motion for summary judgment, returnable December 1, 1995. In the brief in support of her motion, defendant, relying on Snyder v. I. Jay Realty Co., 30 N.J. 303, 153 A.2d 1 (1959), asserted that plaintiff was a social guest at defendant's home and, as such, was a licensee. Defendant also cited Berger v Shapiro, 30 N.J. 89, 152 A.2d 20 (1959), which describes the duty owed by a landowner to a licensee:

A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he

(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and

(b) invites or permits them to enter or remain upon the land, without exercising reasonable care

(i) to make the conditions reasonably safe, or

(ii) to warn them of the condition and the risk involved therein.

[Id. at 99, 152 A.2d 20 (quoting Restatement of Torts § 342).]

Defendant also relied, in part, on defendant's deposition testimony indicating that her deceased husband maintained the grounds in the rear of her home, that she rarely frequented the rear ground, and had not personally maintained that area after her husband's death. Defendant contended that she was unaware that rose runners grew in that area or that rose runners had spread under and into the grass.

In plaintiff's response, it was admitted that plaintiff was a licensee:

Plaintiff recognizes that New Jersey law provides that a household social guest is generally classified as a licensee even when the guest is performing some incidental household task. Plaintiff also recognizes that defendant has no duty to discover latent defects when dealing with a licensee. However, the landowner must warn a social guest of any dangerous condition which he or she had actual knowledge of and of which the guest is unaware. (Citations omitted).

Plaintiff then proceeded to cite various portions of defendant's deposition testimony to demonstrate that, despite defendant's disclaimer of knowledge, defendant had actual knowledge of the dangerous condition resulting from rose runners. Plaintiff's brief also stated that rose runners are a "dangerous natural condition."

In deciding the motion, Judge Holston concluded:

In this case it seems to me clear that the defendant, the mother, didn't know of the dangerous condition and even had she known would not likely have reasonably foreseen the danger. Plaintiff in the exercise of reasonable care should have been more cautious. An owner is not liable for injuries to a social guest when the owner is not aware of the dangerous condition. I don't see how a reasonable jury could find that the defendant mother owed a duty to warn her daughter in this case. Defendant's deceased husband had done all the gardening and the defendant simply had no responsibility toward the roses. In effect she didn't promise her daughter a rose garden.

Plaintiff, pursuant to R. 1:7-4 and R. 4:49-2, filed a timely motion for reconsideration. R. 4:49-2 provides, in part, "[t]he motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." (Emphasis added).

Plaintiff's counsel's certification, filed in support of the motion for reconsideration, sets forth the following as the basis for reconsideration:

3. Prior [to the December 1, 1995 motion], an arbitration panel found the defendant and the plaintiff 50% negligent despite the argument made by defense counsel regarding liability.

4. Although the award was appealed de novo, and plaintiff's counsel realizes the Court cannot rely on the factual findings of the arbitrators, the fact that two arbitrators found liability in favor of the plaintiff, surely supports the conclusion that genuine issues of fact surrounding defendant's notice of the dangerous condition remain outstanding and should be left for the jury.

Plaintiff did not describe any "matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." See R. 4:49-2

The very language cited in R. 4:49-2 served as the response to plaintiff's motion for reconsideration and again at oral argument on the return date for that motion.

In denying plaintiff's motion for reconsideration, Judge Holston repeated a portion of his factual conclusions from when he granted defendant's summary judgment motion. He then properly held that plaintiff was not entitled, pursuant to R. 4:49-2, to relief. Specifically, Judge Holston stated:

[T]his defendant neither knew nor had reason to know of a dangerous condition on her own property. She had no requirement to go back there and cut that grass and to ascertain whether or not underneath that grass there may have been rose runners. What she had an obligation to do would be to reveal to her daughter or any social guest that which could not have been seen and would constitute a dangerous condition if she knew about it or had reason to know about it. I don't believe she had either.

I'm satisfied also that the standards for reconsideration haven't been met here, There is no new law cited nor has there--is no legal authorities about which this Court overlooked, nor do I believe any facts which this Court overlooked.

Plaintiff then filed her second motion for reconsideration. In addition to submitting a brief, plaintiff's counsel filed a certification which stated, in part:

2. Upon return to the office on January 19, 1996, [the associate who appeared on the motion for reconsideration] and I reviewed the denial [sic]...