VOGEL v. HATHAWAY
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 4/10/2013. (nr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PHYLLIS CENTANTI VOGEL,
Civil Action No. 12-1869
(SDW)(MCA)
Plaintiff,
v.
OPINION
CHERYL HATHAWAY,
Defendant.
April 10, 2013
WIGENTON, District Judge.
Before the Court is Defendant Cheryl Hathaway’s (“Defendant”) Motion for Summary
Judgment (“Motion”) against Plaintiff Phyllis Centanti Vogel (“Plaintiff”) pursuant to Federal
Rule of Civil Procedure 56. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §
1332. Venue is proper under 28 U.S.C. § 1391. This Court, having considered the parties’
submissions, decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78. For the reasons stated below, Defendant’s Motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
In the afternoon of July 20, 2011, Plaintiff attended a family picnic held at Defendant’s
house in Rahway, New Jersey. (See Def. Ex. B, Plaintiff Phyllis C. Vogel Deposition “Pl. Dep.”
at 36:25-37:9 (September 12, 2012); Compl. ¶¶ 5, 7.) Approximately thirty minutes after
arriving at the picnic, Plaintiff went to retrieve cigarettes from her car which was parked near the
curb in front of Defendant’s house. (Def. Ex. B, Pl. Dep. 37:22-44:18.) While en route to her
car, Plaintiff exited the front door of Defendant’s house and tripped and fell on a step leading to
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the sidewalk. (Def. Ex. B, Pl. Dep. 44:13-54:23, 76:24-77:8.) Plaintiff suffered wrist injuries
and subsequently underwent two surgeries. (Pl. Br. at 3; see Ex. D. at ¶¶ 3-5.)
On March 27, 2012, Plaintiff filed her Complaint alleging negligence and Defendant’s
failure to warn Plaintiff of unsafe and hazardous conditions. On January 23, 2013, Defendant
moved for Summary Judgment.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A fact is only “material” for purposes of a summary judgment motion if a dispute over that fact
“might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a
material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d
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Cir. 2001). “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255).
The nonmoving party “must present more than just ‘bare assertions, conclusory
allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the
nonmoving party is required to “point to concrete evidence in the record which supports each
essential element of its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284,
286 (D.N.J. 2004). If the nonmoving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which . . . [it has] the burden of
proof,” then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S.
at 322-23.
DISCUSSION
To establish a claim for negligence under New Jersey law, a plaintiff must prove: (1) a
defendant owed a duty to plaintiff; (2) the same defendant breached that duty; and (3) plaintiff
suffered injuries proximately caused by the breach. Conklin v. Hannoch Weisman, 145 N.J. 395,
416 (1996). In premise liability cases, the scope of the duty owed to the plaintiff is based on the
plaintiff’s status on the property at the time of the incident. Snyder v. I. Jay Realty Co., 30 N.J.
303, 311-12 (1959). New Jersey courts employ the traditional classifications of business invitee,
social guest, or trespasser to determine what duty is owed to the plaintiff. Id.
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In the instant matter, the parties do not dispute that Plaintiff was a social guest at
Defendant’s house. (See Pl. Br. at 5; Def. Br. at 7.) Consistent with well-settled law, the parties
agree that “a homeowner has a duty to warn the unwary social guest of a condition of the
premises that the homeowner knows or has reason to know creates an unreasonable risk of
injury.” Parks v. Rogers, 176 N.J. 491, 494 (2003). Additionally, both parties note New Jersey’s
evolutionary trend in considering “whether the imposition of such a duty satisfies an abiding
sense of basic fairness under all of the circumstances in light of considerations of public policy.”
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Housing Auth.,
38 N.J. 578, 583 (1962)). Thus, in determining the nature of the duty owed, courts weigh and
balance the following factors: (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. Id.
Here, the central factual issue is whether Defendant knew or should have known about
the allegedly defective step. Plaintiff testified that she fell because the step had an unexpected
height differential. 1 (Def. Ex. B, Pl. Dep. 44:21-45:5, 56:7-22.) Plaintiff’s expert, Paul Stephens
(“Stephens”), opined that the steps were hazardous because of the “excessive dimensional
variations between the steps.” (Pl. Br. at 3.) Stephens noted that “[a] higher than expected step
during descent such as the over 10 inch high single step at the sidewalk versu[s] the 7 to 7 5/8
inch entry steps . . . violate user expectation.” (Pl. Br. at 3.) Stephens further opined that “[t]he
house’s exterior steps, with a single step at the sidewalk with a riser height of 10 inches, and the
house entry steps with tread dimensional variations of 5/8 inch were not compliant with the
building code in effect at the time of construction and such noncompliance was a proximate
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Plaintiff testified that she used the handrail for the first two steps down, but was unsure on the third step. (Def. Ex.
B, Pl. Dep. 50:2-4.) However, in her answers to interrogatories, Plaintiff stated that she fell on “the one step that is
located immediately before the sidewalk adjacent to [the] defendant’s home.” (Def. Ex. D ¶ 2.)
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cause of [Plaintiff’s] accident.” (Pl. Br. at 4.) Based on this expert report, Plaintiff argues that
Defendant either knew or should have known about the condition and had a duty to warn
Plaintiff of the defective steps. (Pl. Br. at 6.)
On May 9, 2005, Defendant signed an application with the Township of Rahway to
replace the front steps and railings. (Def. Ex. G.; Pl. Br. at 6.) Defendant testified the front steps
were in fact replaced in 2005. (Def. Ex. F, Defendant Cheryl Hathaway Deposition “Def. Dep.”
at 11:3-15:10 (October 8, 2012).) Defendant further testified that she was not aware of any
problems with the steps and that no one had previously fallen on the steps. (Def. Ex. F 15:1121.)
In considering Defendant’s Motion, this Court finds that summary judgment is not
appropriate. There are genuine issues of material facts relating to whether Defendant knew or
should have known about the alleged defect in the steps and whether the steps’ height differential
posed an unreasonable risk of harm to Plaintiff. Additionally, there is a dispute regarding
whether Plaintiff should have realized the allegedly defective condition and whether she had the
opportunity and ability to exercise care while walking down the steps. In light of Plaintiff’s
expert report, the relevant deposition testimony, and answers to interrogatories, there are genuine
factual issues for a jury to determine. In light of the disputed facts, Defendant is not entitled to
summary judgment.
CONCLUSION
For the reasons set forth above, Defendants’ Motion is DENIED.
s/Susan D. Wigenton, U.S.D.J.
Cc:
Madeline Cox Arleo, U.S.M.J.
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