Premises Liability / Slip and Fall Accidents

Have You Been Injured On Residential Property?

In New Jersey, the duty of care owed by a residential landowner traditionally depends upon the status of the party injured on the landowner’s property and whether he or she was a licensee, invitee or trespasser.

• Invitee: Under the law, an invitee is owed the highest duty of care. An invitee is anyone who has been invited onto another person’s property - which could be the customer of a business establishment or the visitor of a public park.
• Licensee: Under the law, a licensee is owed an intermediate duty of care. A licensee is anyone whose presence has been permitted, but who does not qualify as an invitee – such as someone making a delivery or repair at a home.
• Trespasser: Under the law, a trespasser is owed a minimal duty of care. This includes anyone who has entered property unlawfully or without permission, but there are certain exceptions for child trespassers.

Have You Been Injured On Commercial Or Public Property?

Determining the scope of tort liability has traditionally been the responsibility of the courts. Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (1984). The actual imposition of a duty of care and the formulation of standards defining such a duty derive from 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. Goldberg v. Housing Authority of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962). “The analysis leading to the imposition of a duty of reasonable care is “both fact-specific and principled….” Alloway v. Bradlees, Inc., 157 N.J. 221, 230, 723 A.2d 960; Id. This analysis must also “lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.” Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993). The courts will impose a duty where foreseeable events posing a risk of harm necessitate that a duty of due care be imposed on those able to prevent the harm.

In New Jersey, the duty of care owed by a landowner traditionally depended upon the status of the party injured on the landowner’s property. Despite the fact that this common law approach is favored in residential premises liability cases, courts have employed another methodology of duty analysis in other instances. Sussman v. Mermer, 373 N.J. Super. 501, 503 (App. Div. 2004) (applying a more flexible analysis in a case where the plaintiffs had been invited to a residence for an evening graduation party, and the plaintiff fell from an outside deck to the ground injuring himself). “The common law on premises liability in New Jersey…has undergone transition toward ‘a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others.’” Id. at 505. In fact, “[t]he only type of tort cases in which the New Jersey Supreme Court has continued to apply common law principles of premises liability are those involving claims against the owners of property used for non-commercial purposes.” Raimo v. Fischer, 372 N.J. Super. 448, 454, 859 A.2d 709 (App. Div. 2004).

In J.S. v. R.T.H., 155 N.J. 330 (1998), the New Jersey Supreme Court explained:

”Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists. The ability to foresee injury to a potential plaintiff is crucial in determining whether a duty should be imposed. Id. at 337-38. (citations and quotations omitted).

Likewise, in Campbell v. Hastings, 348 N.J. Super. 264 (App. Div. 2002), it was observed that “the question thus becomes whether under all the circumstances it [i]s fair and just to impose a duty…to exercise reasonable care to prevent foreseeable harm to [the social guest] and, if so, whether sufficient foreseeable harm was present to raise a jury question regarding breach of this obligation.” Id. at 266.

In Campbell, the seventy-five (75) year old plaintiff had been invited to defendant’s home to view some photographs shortly before dark. She was escorted through the front door crossing over a sunken foyer area. Id. at 266. On her way out of the home, the defendant escorted plaintiff through that same sunken foyer area but via a different pathway. The plaintiff did not see the steps and fell. Ibid. The court noted that there was no indication in the record that the sunken foyer itself contained any claimed defect. Id. at 269. Nevertheless, the court found that “dangerousness is closely related to foreseeable harm” and that “[t]he possibility of a seventy-five year old woman falling or stumbling into the unlit foyer should have been reasonably foreseeable under these circumstances.” Id. at 271. The harm could have been avoided with “minimum effort” on the part of the defendant. Ibid.

The scope of the duty is “determined by the ‘totality of the circumstances.’” Thorne v. Miller, 317 N.J. Super. 554, 560 (Law Div. 1998). “Factors used to determine the scope of a duty include the risk of harm and practicality of preventing it, and where the relevant behavior is easy to correct and the consequential harm serious, it is fair to impose a duty.” Thorne, 317 N.J. Super at 560-61. In Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005), the Court observed:

Duty is not a rigid concept; it adjusts to the changing social relations of society. To determine if a duty exists, we examine the totality of the circumstances. When the defendant’s actions are relatively easily corrected and the harm sought to be prevented is serious, it is fair to impose a duty. Id. at 8. (citations and quotations omitted).

In Siddons, Plaintiff’s unit was flooded by water from a broken dishwasher hose in the unit owned by a neighbor. Id. at 8. The plaintiff sued the neighbor and the condominium association. Ibid. The Appellate Division reversed the dismissal of the claims against the association. Ibid. The court found that the association was aware that similar hoses had previously broken in other condominium units within the association. Id. at 10. The Appellate Division recognized that even though the hose was not a common element and the by-laws imposed “responsibility for their inspection and maintenance on the unit owners,” the issue was whether the association “had a duty to warn the unit owners of the potential defect in the dishwasher hoses after it was put on notice of the defect.” Ibid. The Appellate Division concluded that the association “had a duty to act reasonably to warn the unit owners of the potential danger,” based on “the close relationship between a condominium association and its unit owners”; the fact the association knew of the risk of flooding and the unit owners did not; no undue burden would be caused to the association by giving a warning; and the interests of the unit owners in their own property and the common elements would be safeguarded by requiring a warning. Id. at 10-11.

This analysis was implemented in La Russa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156, 164 (App. Div. 2003). There, the plaintiff was injured when he slipped and fell on a puddle of water in the kitchen of a hotel created by an employee of an outside vendor to the hotel who had tracked snow in while making a delivery. The Appellate Division ruled that the delivery man who tracked the snow in had a duty to notify the hotel of the condition. Specifically, “the results of tracking in enough snow and water to create a five-foot puddle were obvious and easily foreseeable; the severity of the harm created by this condition readily apparent; the opportunity to notify of the condition and insure prevention of the obvious danger readily available and the fairness of imposing such duty indisputable.”

In arriving at its decision, the La Russa Court relied upon the formula developed by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173, reh’g denied, 160 F.2d 482 (2d Cir. 1947). In that case, Judge Hand stated that imposition of a duty, as in other similar situations, to provide against resulting injury is a function of three (3) variables: (1) the probability of the injury; (2) the gravity of the resulting injury, if it happens; and (3) the burden of adequate precautions. Id. “Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, I; and the burden, B; liability depends upon whether B is less than I multiplied by P: i.e., whether B less than PI.” Id. at 173-74.