Katz v. Voorhees
| Decision Date | 26 November 2018 |
| Docket Number | DOCKET NO. A-5225-16T4 |
| Parties | FRED KATZ and MARLA KATZ, Plaintiffs-Appellants/Cross-Respondents, v. CHARLES E. VOORHEES, Defendant-Respondent/Cross-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Hoffman, Geiger and Firko.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2675-14.
Christa F. High argued the cause for appellants/cross-respondents (Law Offices of Daniel J. Siegel, LLC, attorneys; Daniel J. Siegel, on the briefs).
Steven Antinoff argued the cause for respondent/cross-appellant (Parker Young & Antinoff, LLC, attorneys; Steven Antinoff, on the briefs).
Plaintiffs Fred and Marla Katz1 appeal from the summary judgment dismissal of their slip and fall negligence complaint. Defendant Charles Voorhees cross-appeals from an earlier order which effectively vacated an order confirming a no-cause arbitration award in defendant's favor. For the following reasons, we vacate and remand the summary judgment dismissal of plaintiff's complaint, and affirm on defendant's cross-appeal.
We begin with a summary of the pertinent facts, viewed in the light most favorable to plaintiffs, the parties opposing summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see R. 4:46-2. On a rainy day in June 2013, plaintiff went to defendant's home on a service call, in the course of his employment as an air-conditioning technician. As plaintiff inspected the unit, defendant stood next to him, holding an umbrella over both of them. When plaintiff started to walk around the house to access his service vehicle, defendant encouraged him to walk through the house to avoid the rain. After putting cloth booties over his shoes, plaintiff followed defendant throughthe house and into a mudroom, which had a doorway to access steps leading to a garage. Defendant did not wipe his shoes on a mat in the mudroom before descending seven steps ahead of plaintiff to the garage floor. As he walked from the mudroom into the garage, defendant did not turn on the garage overhead lights; instead, he hit the button to open the garage door. The light on the garage door opener provided only dim light as plaintiff began to descend the steps from the mudroom. Defendant's stairs consisted of unusually steep risers with narrow treads.
According to plaintiff, when he "stepped on the first step," he fell backwards, and "went down all the steps," sustaining serious injuries.2 Plaintiff was "shocked" to learn, after falling, that there were more than two or three descending steps. He also stated he did not see any handrail before he fell. Additionally, plaintiff claims that immediately after he fell, defendant ran over to him and said, He also told plaintiff that his son fell there, and got hurt.
Plaintiff further claims that when he stood up, he turned and looked at the steps, and began touching them because he "was curious why [he] fell." Plaintiffstated that he remembers "touching the steps and they [were] shiny, [and] very slippery." Specifically, plaintiff stated he was feeling "one of the top" stairs at this time.
Defendant's house was built in 1966. In the twelve years he lived there before plaintiff's accident, defendant never repaired or updated the garage stairs. Plaintiff submitted a report from a premises liability expert, Ronald Cohen, P.E. After reviewing deposition testimony and physically examining the steps, Cohen concluded that plaintiff's fall was the result of an "overstep," because the end of his foot extended beyond the edge of the step. He opined that tread depths should be "eleven inches minimum," which meant defendant's treads were undersized by almost four inches, in violation of "long standing engineering practice," and several building codes, including the BOCA3 National Building Code of 1987. Cohen further opined that defendant should have verbally warned Katz of the shallow tread depths. Other defects noted by Cohen were an ineffective handrail which did not extend to the garage floor; failure to maintain uniform treads and risers; and failure to provide an adequate stair landing.
Cohen noted that the stairs' "effective tread depths varied and the effective depth of the top/incident tread was 7-1/16 inches," while a Based on these facts, Cohen found that plaintiff's fall "was consistent with an overstep," which occurs when "too much of the foot projects beyond the [tread] nosing; the body's full weight is transferred to the leading foot, which may slide over the edge, causing a loss of balance." Cohen further opined that in order for plaintiff to have avoided overstepping, he "would have had to know to descend with his feet turned outward in a duck-like manner." Cohen therefore concluded, "Absent a warning marker and because [plaintiff] was unfamiliar with the residence, at the very least [defendant] should have provided a verbal warning to be careful because the stair tread depths were shallow."
Defendant's expert, Keith Bergman, P.E., did not dispute the contention that defendant's stairs were not code compliant on the date of plaintiff's accident. Instead, he expressed the opinion that since New Jersey did not adopt the BOCA building code until 1975, and since defendant's home was constructed "circa 1965," the opinions of plaintiff's expert were "unreasonable and inappropriate."
The motion court granted defendant's motion for summary judgment, after ruling that Cohen's report constituted "a net opinion." The judge explained thatbecause he would "not allow the expert to testify . . . there's no evidence now, [so] I'm going to dismiss the plaintiff's complaint."4 This appeal followed.
We review a trial court's grant of summary judgment de novo. Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016) (citation omitted). "[The] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted). Summary judgment may be granted when the evidence before the trial court on the motion, viewed in a light most favorable to the non-moving party, indicates there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); see also Brill, 142 N.J. at 540. In reviewing an order granting or denying summary judgment, we employ the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).
The trial court's "function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial." Brill,142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). To make the determination, the trial judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. The judge must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
Broadly speaking, to recover on a negligence claim, a plaintiff must prove 1) the defendant owed the plaintiff a duty, 2) the defendant breached that duty, and 3) the breach of the duty proximately caused the plaintiff's injury. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984). In a premises liability case, as here, the type of duty owed by defendant to plaintiff generally depends upon plaintiff's classification. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993) (). Business invitees are defined as individuals that "come by invitation, express or implied." Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959) (citation omitted). The duty owed to business invitees, such as plaintiff here, is a Hopkins, 132 N.J. at 434. See also, Daggett v. Di Trani, 194 N.J. Super. 185, 192 (App. Div. 1984) ().
"A homeowner is intimately acquainted with his or her residence and consequently aware of many of the problems that remain hidden to the untrained or unfamiliar eye." Hopkins, 132 N.J. at 445. At a minimum, reasonable care requires a homeowner to warn a business guest of any defects or dangerous conditions of which the homeowner is aware or should be aware. See Filipowicz v. Diletto, 350 N.J. Super. 552, 560 (App. Div. 2002).
We first address the judge's determination that plaintiff could not sustain his burden of proof to establish that defendant violated a duty to him without expert testimony. In determining whether a plaintiff must provide expert testimony, a court must consider "whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a validjudgment...
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