Plaintiff claimed injuries in a N.J. trip and fall accident because of a design defect in the uneven floor level immediately adjoining the door, and failure of defendants to warn her of, or otherwise protect her from, the so-called dangerous condition. Defendants answered, denying liability. Plaintiff retained a NJ personal injury lawyer, who instituted suit. Near the end of discovery, defendant filed a motion for summary judgment; which was granted by the trial judge.
Negligence is not presumed and the burden of proving it is on the Plaintiff. There is no proof for the jury to consider as to defective design or defective construction. In addition, the issue of negligence of the Plaintiff herself dragging a suitcase as she tried to enter the premises as she described it in her deposition is quite visual and overwhelming. No reasonable jury on these facts could find for the Plaintiff against the owner of the property absent proof of a design defect or negligent construction. There is no proof of breach of a duty.”
The appellate division affirmed. [D'Alessandro v. Hartzel et al. A-3736-09T3-Approved for Publication on October 27, 2011].
Prior to walking through the front door at the start of her vacation on June 17, 2006, Susan never visited the condominium, but had viewed its layout in on-line pictures about four or five months before.
On arrival, Susan was dragging a suitcase on wheels with her right hand. As she crossed the threshold of the front door, she had to prop open the inward swinging-hinged door with her left hand while rolling her luggage with her right hand.
Her left shoulder was therefore angled in first, and her body passed through the threshold sideways while her vision was “facing forward across” the interior of the foyer. Upon crossing the threshold, plaintiff fell on the step leading from the landing into the sunken living room and sustained injuries.
Susan assumed the foyer to be flat and level when in fact the level changed within one foot of the side of the front door. She acknowledged, however, that had she walked straight in, she would have had a clear view of the landing, steps and living room. Indeed, the step carpeting was distinguishable from, and a different color than, the front tile landing. Moreover, it was a bright and sunny day and the lighting was adequate. In fact, there were no prior complaints about the entrance way or previous falls by other guests on the steps immediately adjoining the front door.
- There has been no showing, for instance, that the layout of the entrance way violated requirements or standards set forth in state statutes and regulations or in local construction codes. In this regard, mere allegations of a design flaw or construction defect, without some form of evidential support, will not defeat a meritorious motion for summary judgment. N.J. Mortg. & Inv. Corp. v Calvetti, 68 N.J. Super. 18, 25 (App. Div. 1961).
- Here, no reasonable jury could find, on the facts of the summary judgment record, that plaintiff did not know or have reason to know of the condition of the property of which she now complains. Prior to her visit, plaintiff viewed photos of the interior layout. At all times, the change in elevation from landing to living room was entirely visible and conspicuous. Indeed, plaintiff herself acknowledged that had she walked straight in, she would have had a clear view of the landing, steps and living room; unlike Campbell v. Hastings, 348 N.J. Super. 264 (App. Div. 2002)
- In Reyes v. Egner, 404 N.J. Super. 433 (App. Div. 2009), aff’d on other grounds by an equally divided court, 201 N.J. 417 (2011), we specifically addressed the duty a lessor owes a tenant in the particular context of a short-term vacation rental property. We concluded such duty should be defined consistent with Section 358 of the Second Restatement of Torts. Id. At 456. That provision permits liability if the plaintiff demonstrates that the lessor has failed to disclose a condition which involves unreasonable risk physical harm to persons on the land:
if “(a) the lessee does not know or have reason to know of the condition or 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.” [Ibid. (quoting Restatement (Second) of Torts, § 358 (1965).]
The failure of plaintiff to present expert testimony was a killer. In my humble opinion, a sunken living room in close proximity to the entrance of the vacation rental is not a per se construction or design defect. If plaintiff tried to obtain the services of an expert, but was unable to secure a favorable opinion, it may have been time to “fold ‘em.”
Kudos for the plaintiff’s passion and fighting spirit.
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