NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4090-15T4
JENNIFER PARELLA and THOMAS PARELLA,
Plaintiffs-Appellants,
v.
RICHARD COMPEAU and ROSANNA DIMARZIO,
Defendants-Respondents.
and
RITA HARKINS and SEAN HARKINS,
Defendants. _______________________________
Argued May 10, 2017 - Decided July 3, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3679- 13.
Michael E. Ellery argued the cause for appellants (Console and Hollawell, attorneys; Mr. Ellery, on the brief).
John J. Mastronardi argued the cause for respondents (Law Offices of Styliades and Jackson, attorneys; Mr. Mastronardi, on the brief). PER CURIAM
Plaintiff, Jennifer Parella, appeals from an April 10, 2015
summary judgment dismissal of her personal injury complaint, along
with a June 12, 2015 order denying reconsideration of that order.1
In her complaint, plaintiff alleged defendants, Richard Compeau
and Rosanna DiMarzio, negligently breached their duty of care by
failing to warn her of a dangerous condition in their home.
Plaintiff tripped over a dog, sleeping in the hall adjacent to the
doorway of a dining room, where a crowd of approximately twenty
guests were seated for Christmas dinner.2 The trial judge granted
defendant's motion for summary judgment following discovery. In
his written opinion accompanying the order, the judge found no
dispute of material facts. Further, he concluded plaintiff was
aware of the dog's presence.
On appeal, plaintiff argues the judge erred in granting
defendants' motion for summary judgment, asserting chairs, the
crowd, and the wall obscured the dog from her view, but defendants
were aware of the dog's presence in the hall. Plaintiff maintains
1 For ease in our opinion, we limit our designation to Jennifer Parella as plaintiff. We are aware plaintiff Thomas Parella, Jennifer's spouse, is also a plaintiff, who alleges derivative claims of loss of consortium. 2 Other defendants alleged to be the dog's owners were dismissed from the action.
2 A-4090-15T4 the Law Division judge "did not completely understand the facts
of the case," and failed to afford her all reasonable inferences.
We are not persuaded and affirm.
The record includes these facts surrounding plaintiff's fall
and the resultant injuries. After finishing the second course,
plaintiff rose from the table to place her dish in the kitchen
sink and check on her child who was in an adjoining room. The
other dinner guests remained seated around the table. Looking
into the dining room from the hallway, plaintiff sat on the left
side of the rectangular table. She walked between the guests
without asking anyone to move, until she reached the end of the
table, where she was unable to pass behind DiMarzio, who sat at
the corner with her chair blocking the path. DiMarzio attempted
to move her chair forward to allow plaintiff to pass. Plaintiff
"squeeze[d] behind [DiMarzio's] chair, and . . . put the plate in
[her] right hand with the glass in [her] left." Plaintiff lifted
the glass and plate over DiMarzio's head, turned her back to the
wall and shuffled her feet to pass behind DiMarzio's chair. As
she cleared the chair, plaintiff turned right to enter the hall
toward the kitchen, and fell.
A "tan, fairly large dog" was lying in the hallway, past the
threshold of the dining room. Plaintiff landed with her legs
draped over the dog's body. The wine glass she held broke during
3 A-4090-15T4 the fall, cutting her finger. Her husband was in the kitchen and
came to her aid. Defendants both stated they knew the dog was
lying in the hallway, adjacent to the dining room doorway,
acknowledging they stepped over the dog as they entered the dining
room and took their seats at the end of the table. Approximately
two weeks after her fall, plaintiff was treated by an orthopedic
hand specialist to address continuing pain and swelling in her
finger. An x-ray revealed glass remained in plaintiff's finger,
which required surgical removal. The surgery revealed the glass
pieces severed a tendon. Plaintiff also suffered radiating pain
down her arm, for which she sought separate medical treatment.
We review an order granting summary judgment applying the
same standard guiding the trial judge. Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016). After considering the competent evidential materials
submitted by the parties to identify whether there are genuine
issues of material fact, "summary judgment will be granted if
there is no genuine issue of material fact and 'the moving party
is entitled to a judgment or order as a matter of law.'" Conley
v. Guerrero, 228 N.J. 339, 346 (2017) (citation omitted) (quoting
R. 4:46-2(c)).
In this review, the facts are viewed in a light most favorable
to the non-moving party, "keeping in mind '[a]n issue of fact is
4 A-4090-15T4 genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion, . . . would
require submission of the issue to the trier of fact.'" Schiavo
v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div.
2015) (alteration in original) (quoting R. 4:46-2(c)), certif.
denied, 224 N.J. 124 (2016). A motion for summary judgment will
not be defeated by bare conclusions lacking factual support,
Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div.
2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super.
388, 413-14 (App. Div. 2013), or disputed facts "of an
insubstantial nature." Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.1 on R. 4:46-2 (2016). "[I]t is evidence that must
be relied upon to establish a genuine issue of fact. 'Competent
opposition requires "competent evidential material" beyond mere
"speculation" and "fanciful arguments."'" Cortez v. Gindhart, 435
N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v.
Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div.
2009)), certif. denied, 220 N.J. 269 (2015).
It is only "when the evidence 'is so one-sided that one party
must prevail as a matter of law,' the trial court should not
hesitate to grant summary judgment." Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed.
5 A-4090-15T4 2d 202, 214 (1986)). Such a legal determination is "not entitled
to any special deference" by this court, which considers legal
issues de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
The parties agree plaintiff is a social guest.
The law is well settled regarding the duty a host owes to a social guest as to conditions of the property.
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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-4090-15T4
JENNIFER PARELLA and THOMAS PARELLA,
Plaintiffs-Appellants,
v.
RICHARD COMPEAU and ROSANNA DIMARZIO,
Defendants-Respondents.
and
RITA HARKINS and SEAN HARKINS,
Defendants. _______________________________
Argued May 10, 2017 - Decided July 3, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3679- 13.
Michael E. Ellery argued the cause for appellants (Console and Hollawell, attorneys; Mr. Ellery, on the brief).
John J. Mastronardi argued the cause for respondents (Law Offices of Styliades and Jackson, attorneys; Mr. Mastronardi, on the brief). PER CURIAM
Plaintiff, Jennifer Parella, appeals from an April 10, 2015
summary judgment dismissal of her personal injury complaint, along
with a June 12, 2015 order denying reconsideration of that order.1
In her complaint, plaintiff alleged defendants, Richard Compeau
and Rosanna DiMarzio, negligently breached their duty of care by
failing to warn her of a dangerous condition in their home.
Plaintiff tripped over a dog, sleeping in the hall adjacent to the
doorway of a dining room, where a crowd of approximately twenty
guests were seated for Christmas dinner.2 The trial judge granted
defendant's motion for summary judgment following discovery. In
his written opinion accompanying the order, the judge found no
dispute of material facts. Further, he concluded plaintiff was
aware of the dog's presence.
On appeal, plaintiff argues the judge erred in granting
defendants' motion for summary judgment, asserting chairs, the
crowd, and the wall obscured the dog from her view, but defendants
were aware of the dog's presence in the hall. Plaintiff maintains
1 For ease in our opinion, we limit our designation to Jennifer Parella as plaintiff. We are aware plaintiff Thomas Parella, Jennifer's spouse, is also a plaintiff, who alleges derivative claims of loss of consortium. 2 Other defendants alleged to be the dog's owners were dismissed from the action.
2 A-4090-15T4 the Law Division judge "did not completely understand the facts
of the case," and failed to afford her all reasonable inferences.
We are not persuaded and affirm.
The record includes these facts surrounding plaintiff's fall
and the resultant injuries. After finishing the second course,
plaintiff rose from the table to place her dish in the kitchen
sink and check on her child who was in an adjoining room. The
other dinner guests remained seated around the table. Looking
into the dining room from the hallway, plaintiff sat on the left
side of the rectangular table. She walked between the guests
without asking anyone to move, until she reached the end of the
table, where she was unable to pass behind DiMarzio, who sat at
the corner with her chair blocking the path. DiMarzio attempted
to move her chair forward to allow plaintiff to pass. Plaintiff
"squeeze[d] behind [DiMarzio's] chair, and . . . put the plate in
[her] right hand with the glass in [her] left." Plaintiff lifted
the glass and plate over DiMarzio's head, turned her back to the
wall and shuffled her feet to pass behind DiMarzio's chair. As
she cleared the chair, plaintiff turned right to enter the hall
toward the kitchen, and fell.
A "tan, fairly large dog" was lying in the hallway, past the
threshold of the dining room. Plaintiff landed with her legs
draped over the dog's body. The wine glass she held broke during
3 A-4090-15T4 the fall, cutting her finger. Her husband was in the kitchen and
came to her aid. Defendants both stated they knew the dog was
lying in the hallway, adjacent to the dining room doorway,
acknowledging they stepped over the dog as they entered the dining
room and took their seats at the end of the table. Approximately
two weeks after her fall, plaintiff was treated by an orthopedic
hand specialist to address continuing pain and swelling in her
finger. An x-ray revealed glass remained in plaintiff's finger,
which required surgical removal. The surgery revealed the glass
pieces severed a tendon. Plaintiff also suffered radiating pain
down her arm, for which she sought separate medical treatment.
We review an order granting summary judgment applying the
same standard guiding the trial judge. Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016). After considering the competent evidential materials
submitted by the parties to identify whether there are genuine
issues of material fact, "summary judgment will be granted if
there is no genuine issue of material fact and 'the moving party
is entitled to a judgment or order as a matter of law.'" Conley
v. Guerrero, 228 N.J. 339, 346 (2017) (citation omitted) (quoting
R. 4:46-2(c)).
In this review, the facts are viewed in a light most favorable
to the non-moving party, "keeping in mind '[a]n issue of fact is
4 A-4090-15T4 genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion, . . . would
require submission of the issue to the trier of fact.'" Schiavo
v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div.
2015) (alteration in original) (quoting R. 4:46-2(c)), certif.
denied, 224 N.J. 124 (2016). A motion for summary judgment will
not be defeated by bare conclusions lacking factual support,
Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div.
2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super.
388, 413-14 (App. Div. 2013), or disputed facts "of an
insubstantial nature." Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.1 on R. 4:46-2 (2016). "[I]t is evidence that must
be relied upon to establish a genuine issue of fact. 'Competent
opposition requires "competent evidential material" beyond mere
"speculation" and "fanciful arguments."'" Cortez v. Gindhart, 435
N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v.
Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div.
2009)), certif. denied, 220 N.J. 269 (2015).
It is only "when the evidence 'is so one-sided that one party
must prevail as a matter of law,' the trial court should not
hesitate to grant summary judgment." Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed.
5 A-4090-15T4 2d 202, 214 (1986)). Such a legal determination is "not entitled
to any special deference" by this court, which considers legal
issues de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
The parties agree plaintiff is a social guest.
The law is well settled regarding the duty a host owes to a social guest as to conditions of the property. The duty is limited. A host need only warn "of dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993); see also Berger v. Shapiro, 30 N.J. 89, 97-98 (1959). A "host need not undertake to make improvements or alterations to render his [or her] home safer for those accepting his hospitality than for himself." Berger, supra, 30 N.J. at 97. The host is under no duty to inspect his or her premises to discover defects which otherwise might not be known to the casual observer. Id. at 98. Where a "guest is aware of the dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable." Id. at 99.
[Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div. 1997).]
Plaintiff urges we reverse the summary judgment dismissal
asserting defendants "knew that a dog they allowed to remain in
front of a doorway posed a tripping hazard" and failed to warn
plaintiff of this known hazardous condition or eliminate the
danger. She argues whether the dog, which is a movable object,
6 A-4090-15T4 created a dangerous condition was a fact question for the jury to
evaluate.
Defendants argue the dog's presence was not unknown as
plaintiff knew there were two dogs in the house and could
reasonably anticipate he was lying in the home. Nor did the dog
represent a dangerous condition; both the size of the dog as well
as the dog's location in the hallway, beyond the area of the dining
room, made him easily seen and avoided.
We distinguish this matter from cases concluding host
liability exists to warn guests unable to appreciate dangerous
conditions or latent defects in the home. For example, in Giordano
v. Mariano, 112 N.J. Super. 311 (App. Div. 1970), an eleven-year-
old plaintiff ran into a closed sliding glass door. Id. at 313-
14. The sliding door had no discernable handle or markings;
further, the area on the other side of the door was "pitch black,"
and an adult almost made the same error before seeing a reflection
at the last moment. Ibid.
Summary judgment dismissal was reversed in Bagnana v.
Wolfinger, 385 N.J. Super. 1 (App. Div. 2006). In that matter,
the plaintiff was injured on a trampoline, from which defendant
removed safety notices required by the trampoline manufacturer's
manual. Id. at 7-8.
7 A-4090-15T4 In this matter, the facts show the dog was not hidden from
view. Plaintiff was aware of the presence of the dog in the home.
Importantly, photographs in the record reflect plaintiff herself
identified the dog lying in the hallway, not in the dining room,
under the table, or on the dining room threshold. The hallway was
lit. Finally, others walking into the dining room from the hallway
saw the dog.
Plaintiff's injuries were not caused by the dog's actions,
causing her to trip and fall. There is no evidence the dog was
moving and his size, again as depicted in the photographs, would
make him clearly visible to anyone who was watching where he or
she was walking. Plaintiff's suggestion she could not see the dog
because he was below eye level begs the question. See Tighe v.
Peterson, 356 N.J. Super. 322, 326 (App. Div. 2002) ("Hosts are
not required to improve or alter their home in order to render it
safer for a guest than for themselves.") (citing Endre, supra, 300
N.J. Super. at 142).
Finally, we reject plaintiff's arguments she presented
material factual disputes requiring the jury's determination and
the judge's misstatement of facts in rendering summary judgment
required reversal. We have considered the facts in the light most
favorable to plaintiff. We cannot say the mere presence of the
dog sleeping in the hallway created an unreasonable risk or a
8 A-4090-15T4 dangerous condition, triggering defendant's legal duty to warn
guests walking in their home. We also find no abuse of discretion
in the denial of plaintiff's motion for reconsideration. See
Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.
2002).
Affirmed.
9 A-4090-15T4