                                 NOT FOR PUBLICATION WITHOUT THE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


                                                                            A-4925-17T2
                                        2
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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                                        3
      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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                                         4
      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.




                                                                           A-4925-17T2
                                        5
      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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                                         6
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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                                        7
      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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                                         8
            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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                                        9
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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