DAWN O'NEILL VS. ROBERT NEUSCH (L-1740-16, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4925-17T2
DAWN O'NEILL,
Plaintiff-Appellant,
v.
ROBERT NEUSCH and
LINDA NEUSCH,
Defendants-Respondents.
______________________________
Submitted March 6, 2019 – Decided August 29, 2019
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey,
Law Division, Union County, Docket No. L-1740-16.
Timothy M. O'Donovan, attorney for appellant.
Methfessel & Werbel, attorneys for respondents
(Lori Brown Sternback, on the brief).
PER CURIAM
Plaintiff, Dawn O'Neill, appeals the summary judgment dismissal of her
personal injury action. She alleged in the complaint that she was seriously
injured when she was caused to fall down the exterior steps of her sister's home
due to a negligently maintained handrail. The trial court granted summary
judgment to defendants, her sister and brother-in-law, after determining they
breached no duty owed to plaintiff and the guardrail on the exterior stairs was
not a proximate cause of plaintiff's fall. Because genuinely disputed issues of
material fact existed as to both issues, we reverse and remand for trial.
Plaintiff commenced this action by filing a complaint in May 2016.
Defendants filed an answer, the parties completed discovery, and thereafter
defendants filed a summary judgment motion. According to plaintiff's brief,
defendants filed the motion "solely on the grounds of lack of proximate cause."
During oral argument, however, defendants argued not only that the handrail on
the exterior stairs of their home was not the proximate cause of plaintiff's
accident, but also that they owed no duty to plaintiff, a social guest. The trial
court resolved both issues in defendants' favor and entered the order for
summary judgment from which plaintiff appeals.
Construed in the light most favorable to plaintiff as the non-moving party,
Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 256 (2018), the
summary judgment record contains the following facts. On the day plaintiff fell,
she was visiting her sister, Linda Neusch, and her brother-in-law, Robert
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Neusch, at their Cranford home. Plaintiff had visited her sister on a regular
basis, approximately once each week, for approximately ten years. Plaintiff and
her brother, Fred, spent the afternoon and evening with their sister and brother-
in-law, and had dinner with them. Before dinner, plaintiff had done some wash.
Plaintiff's accident happened as she left the house.
A person exiting defendants' home through the exterior door had to
traverse five steps between the door and the ground. There were handrails on
each side of the steps. In interrogatories and her deposition, plaintiff attributed
her fall to an unstable handrail and described her attempt to grab the left
handrail:
Q: Okay. If you could briefly, just in your own
words, describe to me what happened.
A: I walked out the door. I had my laundry in my
[r]ight hand, and when I got to the top of the stairs I
went to put it over my shoulder and I kind of, like, had
to grab my -- not that I lost my balance, but just to
situate myself and I went to grab onto the hand railing
and then I fell.
Q: Okay. Did you and Fred leave at the same time?
A: Yes.
Q: Okay, and was Fred in front of you or behind
you?
A: Behind me.
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Asked to describe the movement of the handrail when she grabbed it,
plaintiff testified at her deposition as follows:
A: I don't recall. I know I grabbed the handrail, it
shifted and my -- I guess when I was walking down is
when, but I don't recall which foot was first or anything.
Q: Okay. So what happened when you grabbed the
handrail?
A: It gave way. It, like, kind of shifted.
Q: What do you mean it kind of shifted?
A: So it gave way. Like, instead of being steady
when I grabbed onto it, it shifted right -- like, if I'm
grabbing on it here (indicating), it shifted. It wasn't
steady.
Q: Could you describe if you can in relative terms of
distance how much it shifted? Did the whole railing
come loose? Was it a minor - -
A: I don't know – I don't know about distance. I just
know it was a reasonable shift. I don't know distance.
Plaintiff's brother, who witnessed plaintiff fall, gave a statement in which
he explained how she fell when she grabbed the handrail and it gave out. He
examined the handrail after plaintiff fell. He described what he observed:
"While we were waiting for the ambulance, I checked the handrail and it was
extremely loose and wobbly. It was unstable and I could see why it did not give
[plaintiff] any support."
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Over the years, plaintiff had noticed some issues with the handrails, but
in her judgment, "not severe issues." For example, she had noticed "they had
the things re-cemented and I notice[d] that . . . both of them [were] actually a
little bit loose, but not anything that would make me question it." This was
nothing more than a general observation she had made over the years.
Plaintiff's brother-in-law testified he had problems with the handrails over
the years. He testified at his deposition that the posts that supported the
handrails "go[] into the stairs." He explained that when water collected around
the handrail posts, where they go into the stairs, and the water freezes, the
supporting concrete tended to crack, so he would try to have it patched. If cracks
occurred, the handrails "wouldn't be held as securely as you would want it, so it
did create a wobble."
Plaintiff's brother-in-law had observed the loose handrail before plaintiff's
accident on May 31, 2015. He testified, "I noticed the wobble so I had it fixed."
However, he also testified he did not know if the repairs were done in the winter
immediately before plaintiff's accident, "or one year prior to that." He insisted
he did not notice the wobble from the time he had it repaired until the date of
plaintiff's accident.
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Plaintiff's sister was also aware that during the winters, the cement at the
bottom of the stairs would crack and cause the rail to become loose.
Specifically, she testified, "[i]t would seem that after every winter it would crack
or after every other winter it would crack." The last time her husband had the
situation repaired was approximately two years before plaintiff's accident.
Nonetheless, plaintiff's sister could recall no issues with the handrails being
loose before plaintiff's accident. Following the accident, plaintiff's sister
observed that the handrail "shook," that is, it moved right to left.
Plaintiff produced two expert reports. Their narratives as well as the
photographic evidence referenced in the reports showed the stairway on
defendants' home consisted of four treads and five risers with a concrete landing
at the top of the stairway.
The first expert opined plaintiff's injury was "caused by the loose and
unsecured left handrail that made a sudden movement as she attempted to grab
it after losing her balance." The first expert inspected the steps and found "the
left and right handrails move since they are not fully secured where the posts are
imbedded into the steps." The expert explained "[t]his loose fit allows the
handrails to move. In addition, these handrails had parts come apart in the past
with an attempt to hold them together as can be seen in [the photographs he
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took]." He opined "[t]hese repairs do not appear to have been completed by a
skilled iron worker and may have been done by the homeowner."
The first expert documented in one photograph that "the front post is
disconnected from the top rail of the left hand railing. The connection appears
to be the original weld that has broken[.] Pushing the top rail allows it to jump
away from the post since the broken weld does provide some resistance before
it suddenly becomes free and jumps toward the driveway about [one-quarter] of
an inch." The expert explained how the sudden movement of the loose handrail
would cause someone to fall.
Plaintiff's second expert reviewed a video of the railing "taken some time
shortly after the subject accident," as well as witness statements, interrogatory
answers, and other expert reports. Commenting on the first expert's report, the
second expert said:
While I agree that the condition of the interface
between the railing and the front post contributed to this
accident, the unsecured condition of the overall
handrail also allowed movement beyond that of a
properly maintained and secured handrail preventing
the plaintiff from regaining control after losing her
balance at the top of the subject stairway.
The second expert also opined the improperly maintained handrails on the stairs
were a proximate cause of plaintiff's accident.
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Appellate courts "review[] an order granting summary judgment in
accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217
N.J. 22, 38 (2014) (citations omitted). Our function is not "to weigh the
evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)); accord R. 4:46-2(c). A trial court's determination that a party is entitled
to summary judgment as a matter of law is not entitled to any "special
deference," and is subject to de novo review. Cypress Point Condo. Ass'n v.
Adria Towers, L.L.C., 226 N.J. 403, 415 (2016) (citation omitted).
Here, the parties do not dispute that plaintiff was a social guest at her
sister's home. The model jury charge explains a host's duty to a social guest:
A social guest is someone invited to his/her host's
premises. The social guest must accept the premises of
his/her host as he/she finds them. In other words, the
host has no obligation to make his/her home safer for
his/her guest than for himself/herself. The host also is
not required to inspect his/her premises to discover
defects that might cause injury to his/her guest.
If, however, the host knows or has reason to know of
some artificial or natural condition on the premises
which could pose an unreasonable risk of harm to
his/her guest and that his/her guest could not be
reasonably expected to discover it, the owner/occupier
owes the social guest a duty to exercise reasonable care
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to make the condition safe or to give warning to his/her
guest of its presence and of the risk involved. In other
words, although a social guest is required to accept the
premises as the host maintains them, he/she is entitled
to the host's knowledge of dangerous conditions on the
premises. On the other hand, where the guest knows or
has reason to know of the condition and the risk
involved and nevertheless enters or remains on the
premises, the host cannot be held liable for the accident.
[Model Jury Charges (Civil), 5.20F, "Duty Owed –
Condition of Premises" (approved Mar. 2000)].
Construing the summary judgment record in the light most favorable to
plaintiff as the non-moving party, we conclude a reasonable jury could infer
defendants either knew, or had reason to know, of the dangerous condition
caused by the loose railings. Defendants knew that winter weather conditions
caused the cracking in the cement or concrete in which the handrail's vertical
poles were anchored. Plaintiff's sister testified the condition was last repaired
two winters before the accident. Moreover, unlike plaintiff, defendants lived in
the home and used their exterior stairs frequently, perhaps daily. These facts
give rise to a reasonable inference that they were aware the railings were not
secured and would move when gripped. It is undisputed defendants did not
inform plaintiff about the condition of the handrails.
In contrast, plaintiff testified that although she had observed some
problems with the railings over the years, including the fact that sometimes they
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were a bit loose, there is no evidence she observed the condition of the
"extremely loose and wobbly" railing described by her brother and depicted in
the video taken of the railing shortly after her accident. Moreover, a jury could
readily infer from plaintiff's description of how she fell that the loose railing
was a proximate cause of her accident. A reasonable jury could infer that the
sudden movement of the railing as plaintiff attempted to steady herself is what
caused her to fall.
The motion record demonstrates not only numerous genuinely disputed
material facts concerning liability and proximate cause, but also significant
credibility questions. "Ordinarily, issues of proximate cause are considered to
be jury questions." Broach-Butts v. Therapeutic Alts., Inc., 456 N.J. Super. 25,
39 (App. Div. 2018) (quoting Perez v. Wyeth Labs. Inc., 161 N.J. 1, 27
(1999)). In other words, "[w]hile the existence of a duty is a question of law to
be determined by the court, whether the landlord breached that duty and created
an unreasonable and foreseeable risk of harm to the plaintiff is a question for a
jury." J.H. v. R & M Tagliareni, 454 N.J. Super. 174, 182 (App. Div. 2018).
For the foregoing reasons, we reverse the summary judgment and remand
the matter for trial. We do not retain jurisdiction.
Reversed and remanded.
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