Not For Publication
HONORABLE JEROME B. SIMANDLE
This case arises from an accident which plaintiff, James Nugent, had while attempting to serve a subpoena on the defendant, John Simpson. Plaintiff alleges that defendant was negligently responsible for the accident, and he seeks to recover damages, costs of suit, and attorneys fees. Now before the Court is defendant's motion for summary judgment. For the reasons stated herein, defendant's motion will be granted, and judgment will be entered for the defendant.
On October 16, 1996, at approximately 2:00 p.m., plaintiff, who worked for Philadelphia Express Courier, arrived at defendant's home in Lindenwold, New Jersey, with the intention of serving a subpoena upon defendant to compel his attendance for deposition in a lawsuit filed in the Philadelphia Court of Common Pleas. (Nugent Dep. at 31:9-23.) Plaintiff knocked on the door of defendant's home in an attempt to determine whether anyone was home, but no one responded. (Id. at 31:18 -32:2.) As plaintiff was knocking on the door and looking in the window (id. at 32:13-17), a car pulled up in front of the residence and three boys exited the car. (Id. at 33:8-17.) Plaintiff did not know who these three boys were and did not ask them who they were. (Id. at 33:18-20; 34:6-8). However, as the three boys approached the door, plaintiff greeted them and explained why he was there. (Id. at 33:8-17.)
According to the defendant, none of the three boys was related to the defendant, but rather they were three friends of defendant's son. (Def.'s Br. at 1.) According to the plaintiff, one of the three boys either indicated that he was defendant's son or that he resided with defendant. (Nugent Dep. at 37:2-4.) That same boy indicated that he did not want to get involved with the subpoena. (Id. at 37:4-6.) Though no one used the words "come into the house" (id. at 38:8-11), one of the boys said "let's see if anyone is home." (Id. at 37:4-7.) Following this statement, the boy opened the front door and walked in. (Id. at 37:8-12.) The other two boys followed him, and plaintiff followed behind them. (Id.)
Within two seconds of entering the house (id. at 51:17-20), while standing approximately two or three feet into the house (id. at 46:22-24), plaintiff saw defendant's nine year old Labrador Retriever sitting on the couch in the living room. (Id. at 47:9-21.) No one warned plaintiff about the presence of the dog. (Id. at 61:10-11.) Upon plaintiff's entry into the house, defendant's dog allegedly growled, bared its teeth, and began rising off of the couch, causing plaintiff great fear. (Id. at 47:14-21: 58:14.) Plaintiff turned and quickly exited the house in an attempt to seek safety. (Id. at 57-15-20.) He does not know if defendant's dog ever moved off of the couch (id. at 45:14-15), and there is no evidence that the dog ever moved toward Mr. Nugent.
Plaintiff exited the house and quickly moved down the front steps, falling on his way, leading to a broken wrist and multiple facial contusions and abrasions. (Id. at 42:4-10.) According to plaintiff's expert, Ronald P. Kobelin, the steps are defective and could cause missteps and falls. His report, based in part on his own visual site inspection, indicates that the handrails on the steps are blocked by a rhododendron bush growing through them. (Kobelin Report at 3.) Moreover,
"[t]he stairway risers, treads and nosings are a uniform color and texture resulting in difficulty to individuals to readily see the specific step locations. Sunlight, glare and shadows further create situations which obscure the ability of individuals to properly perceive step locations. The absence of a clearly distinguishable tread nosing results in a dangerous conditions [sic] causing individuals to misstep and fall. . . ."
"The first riser and tread down from the porch landing are significantly different in dimension from the remaining risers and treads. The first riser is between one-half (½") and three-quarter (3/4") inch smaller than the others and the first tread is approximately three and one-quarter (3 1/4") inches larger than the others. Building codes and industry standards establish reasonable variance from dimensional uniformity to be no greater than three-sixteenths (3/16") inch in the height of adjacent risers or in the depth of adjacent treads. Significant dimensional irregularities are dangerous in that they will deceive individuals to expect conditions that then change causing missteps, stumbles and falls." (Id. at 3-4.)
Plaintiff does not know if he tripped or slipped on something or if he missed a step, (id. at 52:1-6), but he was standing on the first or second step from the top when he fell. (Id. at 45:9-15.) According to plaintiff's deposition testimony, there was nothing wrong with the porch or the steps other than that they were made of brick, which is rougher than concrete (id. at 42:11-21), and nothing caused him to fall except the speed with which he was trying to travel down the stairs. (Id. at 46:2-8.)
On March 18, 1998, plaintiff filed a Complaint in the United States District Court for the Eastern District of Pennsylvania, and the case was transferred to this Court on May 14, 1998. According to the Complaint, defendant's negligence caused the defendant's fall. More specifically, plaintiff alleges the following acts of negligence:
"a. allowing a dangerous dog to exist on the aforesaid premises;"
"b. failing to warn Plaintiff...of the dangerous, vicious dog;"
"c. failing to keep the dangerous, vicious dog on a leash;"
"d. failing to erect [warning] signs...;"
"e. failing to maintain the front porch stairs;"
"f. allowing the front porch stairs to be unreasonably dangerous;"
"g. allowing the front porch stairs to be uneven;"
"h. failing to erect/construct a railing on the front porch stairs;"
"i. vicarious liability for actions of a son/relative/agent;"
"j. vicarious liability of Defendant's son/relative/agent for failure to warn Plaintiff of the large, vicious dog;"
"k. vicarious liability of Defendant's son/relative/agent for failure to control Defendant's large, vicious dog;"
"l. vicarious liability of Defendant's son/relative/agent for failure to warn Plaintiff of the defective front porch stair;"
"m. negligence at law; and"
"n. such other acts of negligence as shall be revealed by discovery." (Compl. at ¶ 15.)
In the Final Pretrial Order (filed May 7, 1999), however, plaintiff does not argue that defendant was negligent in failing to control his dog, leash the dog inside the house, or warn of the dog's presence. Rather, he indicates only that he will prove that defendant owned a vicious dog, that the dog caused plaintiff great fear, and that the front steps were defective. (Final Pretrial Order at ¶ 4.) For the purposes of this litigation, then, plaintiff is not alleging that the defendant was negligent because of actions related to the dog, but rather that he was reasonable in moving quickly down the stairs because he was fearful of the dog, and he fell and was hurt because of defendant's negligent maintenance of the front steps. 1
This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, and the law of New Jersey provides the rule of decision.
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods. , 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party, here the defendant, always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as in the present case, "the burden on the moving party may be discharged by `showing' -- that is, pointing out to the district court --that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). It must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
In order to sustain his claim at trial, the plaintiff must prove (in addition to damages), that some action or omission of the defendant caused the plaintiff's injuries, and that such action or omission fell below the applicable standard of care. In his summary judgment motion, defendant argues that, based on the record currently before the Court, plaintiff was clearly a trespasser, and thus defendant owed plaintiff no duty of care. Secondly, defendant argues that even if plaintiff was a licensee or invitee to whom defendant did owe a duty of care, the evidence leaves no genuine doubt that defendant did not act negligently. The Court finds that there is a genuine dispute as to plaintiff's status at the time of the fall, but that summary judgment is nonetheless appropriate for lack of evidence of causation.
1. Plaintiff's Legal Status at the Time of the Fall
In New Jersey, the question of whether a duty is owed by a defendant is one of law, to be determined by the court. Snyder v. I. Jay Realty Co., 30 N.J. 303, 311 (1959). A breach of that duty is a question of fact which must be proven by the plaintiff. McIntosh v. Milano, 168 N.J. Super. 466, 495 (Law Div. 1979).
The duty of an owner or occupier of land varies according to the status of the plaintiff at the time he enters the owner/occupier's land--trespasser, licensee, or invitee. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). Those who come upon an owner/occupier's land by invitation, whether express or implied, are invitees; those who are not invited but whose presence is suffered are licensees; and those who are neither invited nor suffered are trespassers. Id. To trespassers, with a few exceptions not applicable here, owners of land owe no duty of care except to "warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm to a trespasser." Id. at 434 (citing Renz v. Penn Cent. Corp., 87 N.J. 437 (1981)). For licensees, owners or occupiers of land must take reasonable care to fix or warn of unreasonable risks on the land of which the owner/occupier is aware and which the licensee would not observe and avoid. Hopkins, 132 N.J. at 434 (citing Berger v. Shapiro, 30 N.J. 89, 97-98 (1959)). Finally, for invitees, the owner/occupier must exercise ordinary care to render the premises reasonably safe--which means that owners/occupiers may be liable for risks on the land of which they should have been aware, even if they were not in fact aware of the risk. Hopkins, 132 N.J. at 434 (citing Handleman v. Cox, 39 N.J. 95, 111 (1963)).
Here, defendant argues that this Court should grant summary judgment to him because there is no dispute that the plaintiff was a trespasser in his house. The Restatement definition of a trespasser, which has been adopted by New Jersey courts, see Hallacker v. Nat'l Bank & Trust Co. of Gloucester Cty., 806 F.2d 488, 490 (3d Cir. 1986), is that a trespasser is one "who enters or remains upon land in the possession of another without a privilege to do so without the possessor's consent or otherwise." Restatement (Second) of Torts § 329. First, defendant contends, the phrase "let's see if anyone is home" does not mean "come in," and it is uncontested that the words "come in" were never uttered. Second, defendant argues, even if the words uttered by one of the three boys who exited the car did constitute an invitation, none of those boys was defendant's son and none had the ability to grant permission to enter. Third, defendant argues that the plaintiff merely followed the boys through the door that they had entered before him.
However, because the only claim remaining in this case, as stated in the Final Pretrial Order, is that plaintiff's injuries were caused by defective porch steps negligently maintained by the defendant, the issue of whether the plaintiff was actually invited into the house is irrelevant, except perhaps as to whether the plaintiff's own actions were reasonable. Plaintiff's injury occurred outside of the house, on the steps, where a jury could find from plaintiff's version of the facts that he was at least a licensee.
The exact legal status of the plaintiff is unclear. It would appear most likely that plaintiff, as an uninvited person on the outside premises to deliver a subpoena, is a licensee whose presence is suffered. However, this is not the plaintiff's own motion for summary judgment, and thus the law on this issue has not been briefed and is not before this Court for the moment. For now, it is enough that defendant is not entitled to summary judgment on the basis that plaintiff was clearly a trespasser. At the very least, there are material issues of disputed fact to be resolved before plaintiff's legal status can be resolved, and we will therefore assume plaintiff's status to be that of a licensee for the purposes of this motion.
Defendant also argues that he is entitled to summary judgment because, based on the evidence presented, plaintiff cannot prove by a preponderance of the evidence to any reasonable jury that negligent conduct by the defendant is the cause-in-fact of plaintiff's injury. See Thorn v. Travel Care, Inc., 296 N.J. Super. 341, 345 (App. Div. 1997) (citing Kulas v. Public Serv. Elec. & Gas Co., 41 N.J. 311, 317 (1964)).
Plaintiff has presented evidence from which a reasonable jury could find that the steps themselves constituted a dangerous condition: plaintiff's expert is prepared to testify that the top step had "significant dimensional irregularities" that can cause missteps, stumbles, and falls. However, plaintiff's case fails because he has no evidence that that is in fact what happened. A plaintiff must do more than prove that the defendant acted negligently in failing to make safe or warn others of a dangerous condition; the plaintiff must also prove that the negligence caused the injury. See Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 74 (3d Cir. 1996) (plaintiff's expert opined that strips on bottom of bathtub were too far apart and that someone could slip if standing between them, but no proof of causation because no evidence that plaintiff was actually standing between the strips); Coffman v. Keene Corp., 257 N.J. Super. 279, 286 (App. Div. 1992) (to prove causation in a negligence case based on defect, plaintiff must show that the harm resulted from the defect), aff'd, 133 N.J. 581 (1993).
Here, plaintiff's expert, although superbly credentialed as an architect, cannot tie in the mere possibility that someone would misjudge the step with the facts of the case, and plaintiff himself has not presented any evidence from which a reasonable trier of fact could find that the steps caused his fall. The Kobelin Report nowhere mentions plaintiff's version of the happening of the accident. Kobelin's mentioning of problems with some obstructed access to the wrought-iron railings is not germane to this case, since plaintiff never stated that he attempted to use the railings nor that the railing played any role in his accident. Kobelin's mention of the uniform color of these brick front porch steps is likewise of no moment, since plaintiff never says he was unable to see where each step began and ended. If plaintiff fell on the first descending step, as he speculates, then the difference in rise between the first descending step and the second descending step is likewise immaterial. That he "might have" reached the second step before falling is likewise not probative because a jury could not reasonably conclude that he did so. Kobelin's speculations about sunlight, glare, and shadows that may create a dangerous condition likewise do not fit the circumstances of this case because Mr. Nugent has not produced evidence that these factors actually played a role. According to plaintiff's own testimony, he fell on either the first or the second step from the top, but he is not sure which, and there was nothing that caused him to fall, as far as he knew, other than the speed with which he was trying to travel down the stairs. (Nugent Dep. at 45:10 - 46:6.) Thus, no reasonable jury could conclude that the condition of the stairs was a proximate cause of this accident. Because the plaintiff cannot meet his burden of proving causation, his claim cannot stand, and summary judgment is appropriate for the defendant.
For the foregoing reasons, this Court will grant summary judgment for the defendant. While it is not clear, as a matter of law, that plaintiff was a trespasser, and thus defendant is not entitled to summary judgment on that alone, plaintiff has not shown that evidence exists from which a reasonable jury could find that the allegedly dangerous condition on the steps caused the fall. Plaintiff's proofs are insufficient to present a material factual dispute as to causation, upon which he would have the burden of proof at trial. Accordingly, summary judgment for the defendant is appropriate. The accompanying Order is entered.
JEROME B. SIMANDLE U.S. District Judge
This matter having come before the Court upon the defendant's motion for summary judgment; and the Court having reviewed the parties' submissions; and for the reasons stated in an Opinion of today's date;
IT IS this day of May 1999 hereby
ORDERED that defendant's motion for summary judgment be, and hereby is, GRANTED.
JEROME B. SIMANDLE U.S. District Judge
1. Rule 16(e) of the Federal Rules of Civil Procedure provides that a pretrial order "shall control the subsequent course of the action unless modified by a subsequent order." Fed. R. Civ. P. 16(e). A final pretrial order supersedes the pleadings, see Batista v. Weir, 340 F.2d 74, 85 (3d Cir. 1965), and "claims or defenses set forth in the pleadings but omitted from the final pretrial order are not properly before the district court." See, e.g., Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 842 F.2d 1466, 1475-76 (3d Cir.) (Trial court properly refused to consider claim for consequential damages not preserved in final pretrial order), cert. denied, 488 U.S. 908 (1988). Indeed, the Third Circuit has emphasized that one of the purposes of final pretrial orders is "to harness unwieldy litigation by simplifying the dispute and narrowing the issues for trial." Phoenix Canada, 842 F.2d at 1476. Here, plaintiff preserved only his claim that the defective steps caused his fall, and he abandoned his claims of negligence related to control of/warning about the dog. This does not mean, however, that the plaintiff's "interaction" with the dog is irrelevant; rather, it becomes relevant to whether the plaintiff acted reasonably in leaving the house and moving down the front steps quickly.