                                NOT FOR PUBLICATION WITHOUT THE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-0346-17T4

PAMELA PLATVOET,

          Plaintiff-Appellant,

v.

CATHERINE MANCINI,

     Defendant-Respondent.
________________________________

                    Argued November 13, 2018 – Decided November 30, 2018

                    Before Judges Fasciale and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-7935-15.

                    Alan K. Albert argued the cause for appellant (Brandon
                    J. Broderick, attorney; Alan K. Albert, on the brief).

                    Frank J. Kunzier argued the cause for respondent
                    (Zimmerer, Murray, Conyngham & Kunzier, attorneys;
                    Frank J. Kunzier, of counsel and on the brief; Sidney E.
                    Goldstein, on the brief).

PER CURIAM
      In this personal injury case, plaintiff Pamela Platvoet appeals from an

August 18, 2017 order denying reconsideration of summary judgment entered in

favor of her mother, defendant Catherine Mancini. Before defendant left for

vacation, she asked her adult children to cover a pool located in her backyard.

Plaintiff – who was thoroughly familiar with the pool configuration – broke her

left hand as she fell into the pool while pulling a tarp over it. We conclude that

there are no genuine issues of material fact and that defendant is entitled to

summary judgment as a matter of law. We therefore affirm.

      When reviewing an order granting summary judgment, we apply "the

same standard governing the trial court . . . ." Oyola v. Xing Lan Liu, 431 N.J.

Super. 493, 497 (App. Div. 2013). A court should grant summary judgment

when the record reveals "no genuine issue as to any material fact" and "the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). We owe no special deference to the motion judge's conclusions on issues

of law. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995). We therefore consider the facts in a light most favorable to plaintiff.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

      The oval-shaped pool is twenty-three feet long and twelve-to-fifteen feet

wide. A wooden deck encircles approximately half of the pool, leaving the


                                                                          A-0346-17T4
                                        2
remaining area, which is thirty-two inches aboveground, exposed. Plaintiff's

brother installed the deck three years before the accident. The entire pool is

sixteen inches below ground.

      Plaintiff and her fiancé arrived on the day of the accident to put a tarp on

the pool. They noticed that a black mesh fence was on the ground near the pool.

They stood on opposite sides of the pool, with plaintiff on the deck side and the

fiancé on the other, and as plaintiff pulled the tarp towards her, she fell into the

pool. Plaintiff was wearing flip flops at the time, and she was standing on the

deck side of the pool when the accident occurred.

      Plaintiff alleged that a dangerous condition on the property existed, about

which defendant failed to warn her. To support those allegations, plaintiff

retained a professional engineer, who inspected the property and rendered an

expert report. Defendant also retained an engineering expert. The experts

rendered conflicting opinions about whether a dangerous condition existed,

whether defendant should have warned plaintiff about any danger, and the cause

of the accident.

      Plaintiff's expert – who had not reviewed any written discovery about how

the accident occurred – opined that defendant violated multiple sections of the

Town's Property Maintenance Code and the State Uniform Fire Code by failing


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                                         3
to maintain the deck. Based upon a reasonable degree of engineering certainty,

he further explained that the condition of the deck deviated from common

construction and maintenance practice. The Codes required defendant to keep

the deck "in sound condition" and the general area safe and clear of hazards.

      Plaintiff's expert opined that the absence of a guard along the deck

constituted a dangerous condition on the property. He concluded that defendant

failed to inspect and safely maintain the property or warn against the dangerous

condition. He also concluded that defendant violated applicable codes. He

wrote in his report:

            The code requires that the pool have a fence
            surrounding the pool. Additionally, the [New Jersey
            International Residential Code] requires a guard on
            surface having heights above [thirty] inches. The deck
            where [plaintiff] fell stood over [thirty-one] inches
            [plus or minus] above the ground below. The deck
            should have had a guard installed to provide for
            protection for anyone using the pool area. The presence
            of a guard could have prevented the hazardous
            condition that caused [plaintiff's] fall.

            . . . A safe, code compliant fence along the open portion
            of the deck should have been provided. The exterior of
            the premises are to be kept in a proper state of repair
            and maintained free from hazardous conditions.

            While warnings are not substitutes for adequate
            maintenance, the means to have warned of the hazard
            (i.e.[,] warning signs, fence, no handrail[]) once


                                                                        A-0346-17T4
                                       4
            discovered, had been readily available by means of a
            proper inspection, warning, and scheduled repair.

      Defendant's expert concluded that plaintiff caused her fall. He disagreed

that a fence, guardrail, or warnings were necessary. He pointed out that a fence

around the perimeter of the pool is intended to keep unsupervised children away

from the pool. The guardrail around the deck – as required per plaintiff's expert

– would have solved nothing because the accident did not occur in the area where

plaintiff's expert said the guard should be. And as for warnings, plaintiff had

been to the site before the date of the accident and knew about the conditions

before she arrived.

      On appeal, plaintiff argues that the conflicting expert opinions created

genuine issues of fact that precluded summary judgment. She emphasizes that

the failure to set up the pool's mesh fence – which her expert said was required

to protect against injury – contributed to the accident. Plaintiff maintains that

the absence of a guardrail around the deck, pursuant to her expert's opinion,

would have provided protection against the accident. And finally, she contends

that her mother failed to warn her about dangerous conditions at the site of the

accident.

      The duty of a landowner to a person who has been injured because of a

dangerous condition on private property is based on the status of the person at

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                                       5
the time of the injury. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433

(1993).

                   An owner or possessor of property owes a higher
             degree of care to the business invitee because that
             person has been invited on the premises for purposes of
             the owner that often are commercial or business related.
             A lesser degree of care is owed to a social guest or
             licensee, whose purposes for being on the land may be
             personal as well as for the owner's benefit.

             [Ibid.]

"Only to the invitee or business guest does a landowner owe a duty of reasonable

care to guard against any dangerous conditions on [the] property that the owner

either knows about or should have discovered." Id. at 434. We consider plaintiff

to be a social guest.

                     A social guest is someone invited to . . . her host's
             premises. The social guest must accept the premises of
             . . . her host as . . . she finds them. In other words, the
             host has no obligation to make . . . her home safer for
             . . . her guest than for . . . herself. The host also is not
             required to inspect . . . her premises to discover defects
             that might cause injury to . . . 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 . . . her guest and that . . . her guest could not
             be reasonably expected to discover it, the owner . . .
             owes the social guest a duty to exercise reasonable care
             to make the condition safe or to give warning to . . . her
             guest of its presence and of the risk involved. In other

                                                                             A-0346-17T4
                                          6
            words, although a social guest is required to accept the
            premises as the host maintains them, . . . 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(4), "Social Guest
            – Defined and General Duty Owed" (rev. Dec 2014).]

      As to the alleged dangerous conditions on the site – the rolled up mesh

fence and no guardrail – there is absolutely no evidence whatsoever

demonstrating that either one had anything to do with the accident. The purpose

of the fence around the pool is to keep people away from the pool, but plaintiff

herself admits that the mesh fence had to be rolled up so that she could tarp the

pool. This is not a situation where she fell into the pool because there was no

fence. And as to the guardrail, she fell on the opposite side of the pool from

where her expert says the guard should have been. Even if we applied the higher

degree of care that landowners generally owe to business invitees, we conclude

that defendant is entitled to summary judgment.

      Importantly, it is undisputed that plaintiff was thoroughly familiar with

the pool configuration in her mother's backyard. She had sat at that pool almost

every day for three preceding summers. Plaintiff understood that the normal

procedure for winterizing the pool was to remove the mesh fencing around the

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                                        7
pool, place the tarp over the pool, then put the fencing back up. Plaintiff

conceded that her two brothers – who usually winterized the pool in prior years

– placed a tarp over the deck furniture, and "moved everything [including a

storage box] so they [themselves] could tarp the pool." Plaintiff, however,

attempted to place the tarp over the pool with her fiancé because her brothers

"never got a chance to tarp the pool."

      Thus, she had been familiar with the site, which her brothers cleared for

her. There was no need for any warnings – not only because there were no

dangerous conditions that had anything to do with the accident – but especially

because plaintiff knew of the conditions and the potential risks involved in

placing a tarp over the pool. Nevertheless, plaintiff entered or remained in her

mother's backyard.

      Affirmed.




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