Endre v. Arnold

• Citation: 300 N.J.Super. 136,692 A.2d 97
• Parties: John T. ENDRE, as administrator ad prosequendum for the Estate of Terrill Jan Endre, Plaintiff-Appellant, v. Diane ARNOLD, Defendant-Respondent.
• Decision Date: 24 April 1997
• Court: New Jersey Superior Court — Appellate Division

Page 136

300 N.J.Super. 136

692 A.2d 97

John T. ENDRE, as administrator ad prosequendum for the Estate of Terrill Jan Endre, Plaintiff-Appellant, v. Diane ARNOLD, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued March 25, 1997.

Decided April 24, 1997.

Mark J. Molz, Hainesport, for plaintiff-appellant (Stephen Cristal, on the brief).

John T. Bazzurro, Newark, for defendant-respondent (Wolff, Helies & Duggan, attorneys; Mr. Bazzurro), on the brief.

Before Judges MICHELS and MUIR, Jr.

MUIR, Jr., J.A.D.

Plaintiff, John T. Endre, appeals from a summary judgment dismissing his complaint in this wrongful death-survivorship action where plaintiff alleged defendant, Diane Arnold, breached duties of care owed to plaintiff's decedent which proximately caused the latter's death. Plaintiff alleged that defendant breached not only the duty of care a host owes to a social guest as to conditions of the host's property but also the duty a host owes to a social guest to render aid to one who is injured while on a host's premises and is put at risk by the injury. The trial court granted summary judgment finding no breach of duty.

We affirm. We conclude that, while a host has a well-settled duty to warn a social guest of dangerous conditions of which the host has actual knowledge and of which the guest is unaware, a host also has a duty to exercise reasonable care to render aid to a social guest who the host knows or has reason to know has seriously injured himself or herself. Nevertheless, the evidence presented here, when viewed most favorably to the plaintiff, does not support a conclusion that the defendant-host breached either duty which was the proximate cause of death.

I.

We review the competent evidential facts, which come essentially from depositions of defendant and plaintiff, in a light most favorable to the plaintiff. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523, 666 A.2d 146 (1995). Many of the facts are undisputed.

Decedent, Terrill Endre, an alcoholic, and defendant, Diane Arnold, were longtime intimate friends. Decedent, who was divorced and unemployed, spent a considerable amount of time at defendant's home. He had his own key to the home. During his visits, decedent would consume alcoholic beverages. He was a "vodka person" according to defendant, although he also would bring and drink beer.

Decedent had a history of falling when intoxicated. He fell at his own home, at an apartment defendant rented prior to buying her home, and at her home. According to defendant, "[decedent] was always falling, and he would never let [her] call an ambulance or anything because he said he didn't have hospitalization...."

On July 16, 1993, when defendant returned home around 2 p.m., she found decedent waiting for her. The two planned to go shopping the next day. That afternoon and evening, decedent consumed beer and vodka "right from the bottle." He had brought the beer and vodka with him. Around midnight, defendant ate some food. He "was drunk; very drunk, and just slopping [the food] all over." Prior to the meal, he had eaten nothing that day at defendant's home.

After the decedent finished eating, he went upstairs to go to bed. Defendant followed him "[t]o make sure he made it up all right, because he was drunk." The defendant then came downstairs and fell asleep on the living room couch.

The next morning, sometime between 7 and 7:30, the defendant awoke. She heard a noise, "like stirring." Decedent was lying at the foot of the stairs. She spoke to him. He appeared conscious and in no pain. She told him, "When I come downstairs, you better be up." Decedent responded as she said he always did with an "Uh-huh." Defendant then stepped over him to go upstairs and get dressed to go out shopping. When upstairs, she looked down the stairs and did not see decedent. So, she "figured he was up."

About 7:50 a.m., she came back down the stairs. Again, she found decedent lying at the foot of the stairs. She did not like the way decedent looked. She saw, for the first time, decedent had thrown up. The regurgitation contained blood. She claims she said, "Terry, I'm calling the ambulance," and he grabbed her leg and said, "No." She then said that she would call plaintiff, decedent's son, and decedent said, "All right."

Plaintiff said he received the call about 8:45 a.m. He said defendant had no urgency in her voice when she asked if plaintiff would come over and help pick up his father. Plaintiff arrived between 8:55 and 9 a.m.

Plaintiff said at first he noticed decedent was worse than he had ever seen him before. He stated his father mumbled, slurring his words, and moved only one side of his body. Plaintiff, on deposition, asserted decedent could not speak except to say "no, no," but he also stated at one point during his deposition his father said "I don't know" twice when asked if he could move or get up. Plaintiff acknowledged defendant asked him to pick up his father.

Defendant then called a neighbor. The neighbor refused to pick decedent up due to concern for possible injury. At that point, 9:06 a.m., six to eleven minutes after plaintiff arrived, defendant called the police. An ambulance took decedent to Rancocas Hospital, where around 10 a.m. he was found alert but not speaking. Subsequently, based on a diagnosis of subdural hematoma, decedent was airlifted to Cooper Trauma Center, where he died on July 18 after craniotomy surgery. When the ambulance left defendant's home, defendant and plaintiff followed in plaintiff's car, but plaintiff stopped to get something to eat at a McDonald's before proceeding to the hospital.

Plaintiff testified defendant told him she heard "a thump, like a bang, a thump" around 4 a.m. on July 17 but that she went back to sleep. He also claimed defendant told him she thought decedent fell at that time. He further testified defendant told him she gave decedent Xanax, a prescription drug, and asserted his father smoked marijuana on July 16 but did not say defendant gave it to him.

There is no evidence in the record as to exactly how decedent ended up at the bottom of the stairs that July 17, 1993. The parties had completed discovery at the time the trial judge granted summary judgment.

II.

Three elements are essential for the existence of a cause of action in negligence: (1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach. See Anderson v. Sammy Redd and Assoc., 278 N.J.Super. 50, 56, 650 A.2d 376 (App.Div.), certif. denied, 139 N.J. 441, 655 A.2d 444 (1995). Whether a duty exists is solely a question of law to be decided by a court and not by submission to a jury. Wang v. Allstate Ins. Co., 125 N.J. 2, 15, 592 A.2d 527 (1991).

Here, there is a dichotomy in the duties plaintiff claims defendant owed to decedent. First is the duty a host owes a social guest as to conditions of the property. Second is the duty a host owes to render aid to a social guest who is at peril due to a physical injury sustained while on the host's property. We address these claims separately in the context of the parties' concession the decedent was a social guest of defendant.

The law is well settled regarding the duty a host owes to a social guest as to conditions of the property. The duty is limited. A host need only warn "of dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110 (1993); see also Berger v. Shapiro, 30 N.J. 89, 97-98, 152 A.2d 20 (1959). A "host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself." Berger, supra, 30 N.J. at 97, 152 A.2d 20. The host is under no duty to inspect his or her premises to discover defects which otherwise might not be known to the casual observer. Id. at 98, 152 A.2d 20. Where a "guest is aware of the dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable." Id. at 99, 152 A.2d 20.

Plaintiff alleges several defects existed that could have caused decedent to fall. These defects were: (1) the riser depth of the individual steps violated the building code; (2) the headroom above the stairway was too low and also violated the building code; (3) the light illuminating the staircase was insufficient; (4) the carpeting on the steps camouflaged defects; and (5) the handrailing along the stairway wall was loose.

Given the scope of the duty and the principles of law relevant to it, we are satisfied a rational fact finder could not conclude defendant breached her duty of care as to conditions of the property. See Brill, supra, 142 N.J. at 523, 666 A.2d 146. The conditions listed, if they were dangerous, were not hidden. They had existed during the entire time defendant owned the house. As plaintiff concedes in his brief, they were "obvious." If they were obvious, decedent could not have been unaware of them. The evidence discloses he continuously frequented defendant's home, often staying overnight. It is therefore undisputed that he had travelled the stairs fairly often, just as he did around midnight on July 16, 1993. It is also undisputed decedent removed and then replaced the "loose" railing on the stairway wall when he helped defendant move furniture upstairs. Given this evidence, we are satisfied that, even if the conditions noted could be considered dangerous, no reasonable fact finder could conclude that the decedent was unaware of those conditions. Consequently, plaintiff's evidence fails to support a conclusion defendant breached her duty to her social guest concerning conditions of her home.

The law as to the duty a host owes to a social guest who is at peril due to an injury sustained on the host's premises is not as well settled. We have not been able to unearth any...