Opinion
DOCKET NO. A-1083-13T2
02-09-2015
FRANK J. DANLEY and BARBARA T. DANLEY, H/W, Plaintiffs-Appellants, v. PASQUALE PAPPALARDO, Defendant-Respondent.
Herbert J. Stayton, Jr., argued the cause for appellants (Ridgway & Stayton, L.L.C., attorneys; Mr. Stayton, on the brief). Patrick J. Reilly, III, argued the cause for respondent (Nelson, Levine, de Luca & Hamilton, LLC, attorneys; John M. Clark and Mr. Reilly, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Maven. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1072-12. Herbert J. Stayton, Jr., argued the cause for appellants (Ridgway & Stayton, L.L.C., attorneys; Mr. Stayton, on the brief). Patrick J. Reilly, III, argued the cause for respondent (Nelson, Levine, de Luca & Hamilton, LLC, attorneys; John M. Clark and Mr. Reilly, on the brief). PER CURIAM
Plaintiff Frank Danley (Danley) and his wife Barbara Danley appeal from the September 19, 2013 order granting summary judgment to defendant Pasquale Pappalardo and dismissing their complaint. We reverse and remand.
I
The facts in this premises liability case are essentially undisputed. Pappalardo rented a vacation home in Long Beach to the Danleys, who were vacationing with a group of family and friends. Recent renovations to the property included a third-floor space accessible by an eight-step interior staircase. Facing a window at the top of those stairs, to the left is an open kitchen counter and kitchen area beyond, and to the right a living room. The steps terminate in a forty-five-inch landing just below the window. The landing has a single step some eight and one-quarter inches in height leading to the rest of the third floor. The architectural plans for the construction were approved by the Township and complied with all applicable building codes. A certificate of occupancy was issued for the premises approximately two months before this rental.
The Danleys arrived on September 17, 2011. Danley used the steps without incident several times during that day and the following. On September 18, Danley was talking to a friend standing on the other side of the counter in the kitchen, and walking along the kitchen counter as he moved a loaf of bread from his left to his right. He missed the step down, fell onto the landing and down the stairs, suffering injuries.
The Danleys and Pappalardo retained engineers who issued expert reports. The Danleys' expert opined that the design of the single step leading to the landing at the top of the stairs, because it was located along the open kitchen counter, was a hazard. The risks attendant to the design could have been ameliorated, in his opinion, by the installation of handrails on either side of the area and a "step-down" warning sign that would have reminded occupants to focus on the single step upon approaching the landing.
Pappalardo's expert disagreed, grounding her opinion on the design's conformance to the New Jersey Residential and Rehab Codes. She concluded that the addition "met the [S]tate['s] specified criterion for public health and safety." The expert disagreed with the Danleys' expert that the use of the handrails, contrasting floor colors, or any other device was even relevant, as those features are not required by the applicable codes. Furthermore, since at the time he fell, Danley was talking to a person standing on the other side of the counter, she opined that his injuries were caused by his inattention, which would not have been corrected by the installation of warning signs or handrails.
Following discovery, Pappalardo moved for summary judgment. After hearing argument, the judge granted the motion. The entirety of the judge's decision is as follows:
I'm ready to move on. I understand you make your best argument, I will state, is that the fact that that landing is in the middle of the one side of the counter. That is your best argument. However, I am—I've read all the other—and for the information contained in there, the fact that your client had been up and down those stairs before and the case law, I think as a trial judge, I'm bound by the case law and the case law as I interpret it, the defendant abided by the code. The plaintiff had navigated those stairs before and was aware of the circumstances. And, therefore, based on the case law, I feel obligated to grant the summary judgment motion of the defendants. So I'll sign the order for that. Thank you.
The Danleys raise several points on appeal as a basis for reversal.
I. AS THIS MATTER AROSE ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, THE FACTS MUST BE VIEWED IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFFS.
II. THE QUESTION BEFORE THE COURT SHOULD NOT BE DETERMINED ON THE BASIS OF COMPLIANCE WITH THE 2006 INTERNATIONAL RESIDENTIAL CODE.
A. THE 2006 INTERNATIONAL RESIDENTIAL CODE ESTABLISHES MINIMUM REGULATIONS.
B. THE ISSUE IN THIS MATTER DOES NOT INVOLVE A CODE VIOLATION; BUT RATHER, A COMBINATION OF
CONDITIONS INVOLVING THE DESIGN AND REASONABLY FORSEEABLE USE OF THE PREMISES WHICH CREATED A SAFETY HAZARD FOR BUSINESS INVITEES.
III. THE COMBINATION OF DESIGN ELEMENTS, REASONABLY FORSEEABLE USAGE, VISUAL DISTRACTION, VISUAL INVITATION, LACK OF SENSORY OR VISUAL CUES, LACK OF A SLOPED HANDRAIL AND LACK OF A GATE WAS A MATERIAL PROXIMATE CAUSE OF THE PLAINTIFF'S ACCIDENT/INJURY(IES).
IV. THE DEFENDANT KNEW OR SHOULD HAVE KNOWN THAT A HAZARDOUS CONDITION EXISTED THAT CREATED AN UNREASONABLE RISK OF INJURY THROUGH REASONABLY FORESEEABLE USE.
II
An appellate court reviews a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). An appellate court must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is '"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."'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
To demonstrate negligence, a plaintiff must establish a duty of care, a breach of the duty, proximate cause, and damages. D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011). The duty of care in this case, where the Danleys were Pappalardo's tenant, was described in D'Alessandro as requiring "'[] reasonable care to make the premises safe, including the duty to conduct a reasonable inspection to discover defective conditions.'" Id. at 579 (quoting Daggett v. Di Trani, 194 N.J. Super. 185, 192 (App. Div. 1984)).
"[T]he duty a lessor owes a tenant in the particular context of a short-term vacation rental property . . . should be defined consistent with Section 358 of the Second Restatement of Torts." Id. at 580. The relevant language provides:
(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should
realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.
[Restatement (Second) of Torts § 358 (1965).]
A.
We do not, as a general proposition, consider compliance with applicable building codes and the issuance of certificates of occupancy to be dispositive of a lessor's duty of care. See Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 403 (App. Div. 2006). Certainly, as Pappalardo's expert noted, the adoption of the applicable construction codes was intended to address public safety. As the Legislature expressly noted in N.J.S.A. 52:27D-120(e), for example, the purpose of the Uniform Construction Code Act (UCCA), N.J.S.A. 52:27D-119 to -141, was "to adequately protect the health, safety[,] and welfare of the people." In N.J.S.A. 52:27D-122(d), the Legislature reiterated that adoption would "[e]nsure health[y], safe[,] and sanitary construction."
Nothing in the statute, however, expresses an intent to circumscribe tort liability for design defects to only those instances where it is alleged the site violated the UCCA. In fact, Pappalardo's expert noted in her report that the residential code does not address single-step safety. The omission does not mean that the topic cannot be a safety concern or that it cannot be a basis for premises liability.
In the context of the electrical and manufacturing industries, compliance with regulation does not preclude negligence liability. In Black v. Public Service Electric & Gas Company, 56 N.J. 63 (1970), for example, the Court found that the standards in the National Electrical Safety Code did not conclusively establish that the defendant owed no duty to the plaintiff to post warning signs. In Jackson v. New Jersey Manufacturers Insurance Company, we said compliance with the Occupational Safety and Health Administration (OSHA) regulations and American National Standards Institute (ANSI) standards was not the answer to the question of whether a reasonable manufacturer could have taken precautions which would have prevented the injuries caused to that plaintiff. 166 N.J. Super. 448, 461-62 (App. Div. 1979). The codes are probative but not conclusive evidence.
In support of the argument that the codes his expert relied upon in her report are dispositive, Pappalardo offers both D'Alessandro and Reyes v. Egner, 404 N.J. Super. 433, 455-56 (App. Div. 2009), aff'd by an equally divided court on other grounds, 201 N.J. 417 (2010). We disagree with this reading.
In D'Alessandro, we affirmed summary judgment in a premises liability case involving a single step in a vacation rental in part because of design compliance with building codes. 422 N.J. Super. at 580-81. Paramount to the analysis, however, was the fact the plaintiff had no expert in support of her position, was dragging a suitcase into her summer rental as she entered the front door, and had a visual cue to the step as the carpeting color on the lower level contrasted with the landing from which she fell. Id. at 578.
In Reyes, the plaintiff sought damages for injuries he alleged were caused by deviations from the applicable code requirements regarding handrail placement. 404 N.J. Super. at 456-57. There we said that "statutory or regulatory violations [are] non-dispositive proof of negligence," a proposition not in conflict with the notion that although non-compliance is not dispositive, compliance is not dispositive either. Id. at 456-58. Here, Pappalardo's compliance with construction codes, and procurement of construction permits and a certificate of occupancy, does not bar the imposition of a duty of care which requires more. See Geringer, supra, 388 N.J. Super. at 403.
B.
That Danley had safely traversed the area on several occasions that same day and the day before is not dispositive either. Like the plaintiff in D'Alessandro, presumably on notice of the step from the use of contrasting color between the landing and the floor level one step down, this plaintiff knew about the change in floor level. But nothing in the record suggests he walked along that pathway while engaging in the everyday activities of moving objects on a kitchen counter while speaking to someone on the other side. There is a difference in use between walking through an area, using it as a corridor for travel, and walking along the same pathway for a different purpose, while turned sideways in a manner made possible by its design. This case presents facts more like those found in Hopkins v. Fox & Lazo Realtors, where the plaintiff sought to recover for injuries from a fall which he claimed were caused by the use of flooring material which did not indicate a change in level. 132 N.J. 426, 432 (1993).
Even if we were to accept for the sake of argument that the risks inherent in the step-down should have been self-evident to a vacationer who had spent twenty-four hours on the premises, that issue raises a question of fact which makes the grant of summary judgment inappropriate. See Bagnana v. Wolfinger, 385 N.J. Super. 1, 5 (App. Div. 2006). Just as the Court stated in Rowe, "[b]ecause there is no evidence that plaintiff believed the stairs were dangerous originally, the suggestion that similarity of appearance was notice of danger presents a question for the jury." 209 N.J. at 49-50. In other words, just because Danley may not have found the landing hazardous as he walked up and down the stairs did not mean that he would have been on notice of the hazard as he moved a loaf of bread from the left to the right while speaking to someone on the other side of the kitchen counter.
C.
Finally, like the issue of the extent to which Danley should be found to have knowledge of the design, the extent to which Pappalardo should have been cognizant of the hazards is a question for the jury. Actual knowledge is not necessary; constructive knowledge will suffice. A defendant may be charged with constructive knowledge so long as he is "'in a position' to 'discover the risk of harm.'" J.S. v. R.T.H., 155 N.J. 330, 338 (1998) (quoting Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 578 (1996)). Addressing an owner's constructive knowledge in the context of social guests, the Supreme Court in Parks v. Rogers explained:
The Restatement was revised to impose liability on the land possessor if he "has
reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees [social guests]." The landowner is not the measure of whether a known condition of the property is dangerous. The inquiry is an objective one, whether the landowner should realize the condition posed an unreasonable risk of harm.The Parks Court also cited to Taneian v. Meghrigian, which states:
[176 N.J. 491, 499 (2003) (citations omitted).]
[T]he real significance of an act of commission is that it means that the occupier must have actual knowledge of the state of affairs he has created. . . . Once he has that knowledge, then if he knows or ought to know that it is a danger, he is under a duty to use reasonable care to prevent damage from that danger.Said differently, "[i]f an occupier actually knows of a state of affairs on his land which a reasonable man would realize was a danger, he should not be allowed to escape from his responsibilities on the plea that he was not a reasonable man and did not realize it." Id. at 277 (internal quotation marks omitted). Thus, an owner has knowledge of an allegedly dangerous condition if he creates it or is aware of the "state of affairs," and will be held liable if a reasonable man would have realized the risk.
[15 N.J. 267, 276 (1954) (internal quotation marks omitted).]
In the present case, there is no dispute that Pappalardo observed the construction of the third-floor staircase and landing. There is also no dispute that he was familiar with the design of the premises. His subjective belief that the location of the single-step riser did not present a dangerous condition is irrelevant. The question is whether a reasonable person would have realized that the design created a dangerous condition. That question should be resolved by a jury. See Parks, supra, 176 N.J. at 502 (finding that "a reasonable trier of fact could conclude" that the persons who owned a rental home "before, during, and after" the installation of an allegedly dangerous condition "knew the defective condition posed an unreasonable risk of injury"); Reyes, supra, 404 N.J. Super. at 439-40, 442, 461 (finding that an issue of fact existed as to whether persons who owned a rental home for a few months knew or had reason to know of an allegedly dangerous condition installed by previous owners).
In sum, viewing the facts in the light most favorable to the non-moving parties, there are issues of material fact requiring answer by a jury. The evidence is not so one-sided that one party must prevail as a matter of law. Liberty Surplus, supra, 189 N.J. at 445-46.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION