Daily Development for Tuesday, August 27, 2002

 

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

 

LANDOWNER LIABILITY; LIABILITY FOR INJURY TO INVITEES; DANGEROUS CONDITIONS:   In evaluating potential liability for injury to person who is a social guest in a home resulting from a fall on some steps, the court will not consider in the abstract whether injury was caused by a "dangerous condition" per se, but rather will take into account all of the circumstances surrounding the injury, including the advanced age of the plaintiff and plaintiff's ability to anticipate the conditions that contributed to the injury.

 

Campbell v. Hastings, A-3018-00T5 (N.J. Super. App. Div. 2002).

 

While visiting a friend, an elderly woman fell and injured herself while entering a sunken family foyer in the house.  The homeowner "did not mention that there were two steps leading down to the foyer, and as [the elderly woman] stepped forward, she fell into the sunken foyer.

 

The lower court determined that the injured woman was either a licensee or social guest.  As such, the homeowner should have warned her "of any dangerous conditions known to him and unknown to [her]."  The lower "searched for a dangerous condition, and according to the judge, found none."

 

According to the lower court, "it's part of somebody's household and their household because they don't have a light on doesn't make part of their household a dangerous area or this foyer a dangerous condition."

Consequently, the lower court concluded that there was no duty to warn and dismissed the complaint.

 

The Appellate Division pointed out that there were recent Florida cases supporting the lower court's decision and stated that,"[u]nder these Florida cases and most New Jersey cases, if a particular condition of property is without defective design or operation it is generally considered not dangerous."

 

The court went on to say, however,  that "[t]he common law on premises liability in New Jersey . . . has undergone transition toward 'a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others."  Consequently, it felt obliged to "consider the standard four factors normally assessed to determine whether imposition of a duty would be fair and just. ...  The four factors, that must be weighed and balanced, include (1) the relationship of the parties, (2) the nature of the attendant risk, (3) the opportunity and ability to exercise care, and (4) the public interest in the proposed solution."  Proceeding with its analysis, the Court accepted that the injured woman, who had never before been in the house, was clearly on the premises with the homeowner's knowledge and willing participation.  "She knew of the sunken foyer, but did not know it was in front of her when she fell."

 

Although there was some dispute over what she actually knew about the foyer and how dark the premises were, for the purpose of deciding a motion for summary judgment, the court viewed the evidence most favorably to the injured woman.  The court also acknowledged that nothing in the record showed that the sunken foyer itself contained any claimed defect.  Although there was no expert testimony on that subject, the court believed that the lower court could use its common judgment and experience to determine that there was no defect.

 

Unfortunately, for the homeowner, the court likened "the sunken, darkened foyer" to a "partially concealed, open pit."  Moreover, the court held that "[t]he possibility of a seventy-five year old woman falling or stumbling into the unlit foyer should have been reasonably unforeseeable under these circumstances."  It felt that the homeowner could have exercised reasonable care with minimum effort either by more closely escorting or guarding the woman out of the house, warning her, or "simply putting on the light."  Although, it would not rule on the merits, it held that summary judgment should not have been granted in favor of the homeowner based on the non-existence of any dangerous condition.

It left it for a jury to assess whether the homeowner's conduct, "including its failure to protect [the injured woman] in any fashion, breached the standard of reasonable care and constituted negligence."

 

Comment 1: Ira Meislick, the reporter for this case, commented that distinctions between the duties owed by a property owner to licensees or social guests, and invitees or business invitees, are undergoing transition to a broadening application of general tort principles.

 

Comment 2:   Those of us steeped in the lore of earlier law school educations remember a time when tort responsibility was based upon the "real" negligence of a party causing an injury.  Modernly, it appears more and more that one cannot avoid liability simply by being careful.  Courts are looking for ways to justify passing on the cost of injury to individuals likely to have insurance to cover those costs, even to homeowners, as here.

 

Note that in this case the steps were not unusual or inherently dangerous or unreasonable.  They were nothing more than an architectural feature.

The court's emphasis on the age of the plaintiff and her consequent limited ability to anticipate the risk shifts to a homeowner complex series of required judgments in each individual case, leading to a far greater liklihood that the homeowner, in the event of injury, will be found by some later jury to be found wanting in ordinary care.

 

Surviving a summary judgment motion does not mean that the plaintiff will win, but it increases geometrically the liklihood that the defendant's insurer will settle.

 

Is this all a good thing or a bad thing?  It's hard to say.  Certainly individual homeowners will get caught up in the pincer.  Since the conditions themselves are not unreasonable, for now the builders will not get stuck.  But the homeowners, although insured, certainly will suffer an economic penalty in the form of higher insurance costs, both generally and particularly as to those unlucky enough to suffer a claim of this sort.

One wonders whether this is the best way for society to deal with the injuries suffered by the woman.  Shouldn't she be expected to have her own insurance for things like this that happen to her - and shouldn't that be the end of it?  Apparently they don't think that way in New Jersey.

 

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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