CAROL HOUSTON JAMES HOUSTON SR v. PAUL GICHUHI LUWAN INVESTMENTS LLC (2013)

Plaintiffs Carol and James Houston appeal from a September 14, 2012 order granting summary judgment in favor of defendants Paul Gichuhi (Gichuhi) and Luwan Investments, LLC (Luwan),¹ dismissing their slip-and-fall premises liability action.   For the reasons that follow, we affirm as to the claim against Gichuhi, and reverse and remand as to the claim against Luwan.

I

These are the most pertinent facts.   On January 16, 2009, plaintiff fell and broke her ankle while assisting her sister-in-law move into an apartment in Irvington.   The apartment is located on the third floor of an apartment building (the building) owned by Luwan.   The building is a three-family dwelling unit, with an apartment on each floor.   There are two doors immediately located inside the building's entrance on the first floor.   One door leads to the first floor apartment, while the other door leads to a staircase, which is used to access the second and third floor apartments.   There is a landing located outside each apartment.

The stairwell has two light fixtures located in the landing areas, both of which are controlled by switches.   One light fixture is located in the first floor landing area, while the other is located in the third floor landing area.   The switch for the third floor landing light fixture is located on the wall in the immediate vicinity of the door to the third floor apartment.   While the record is not clear, it appears the switch for the first floor landing light fixture, the one relevant to this case, is located somewhere on the wall between the second and third floor landings.

According to plaintiff, her fall occurred at approximately 8:00 p.m., when she walked down the stairs and tripped head first at the end of the second landing heading down to the first landing, resulting in injury.   Prior to her fall, plaintiff had been up and down the stairs anywhere between five and fifteen times.²  Plaintiff testified at her deposition that at the beginning of the move, there was “some daylight,” but at the time of her fall, it was dark outside.   According to plaintiff, the light fixture in the area of the first floor landing was off and it was dark in the area where she fell.   Plaintiff testified that despite looking for it, no one who was helping her sister-in-law move into the apartment (plaintiff, her husband, her sister-in-law, and stepson) was able to locate the light switch prior to plaintiff's fall.

Plaintiff said that after she fell, a woman who was living in the first floor apartment came into the hallway and stated, “I told Paul to leave this light on.   This light is supposed to be on at all times[.]”  There is no indication that this woman was deposed nor was a statement from her produced.

Plaintiffs did not retain an expert.   Following discovery, defendants filed a motion for summary judgment, arguing among other things that plaintiffs failed to present sufficient evidence that the lighting in the hallway of the building created a dangerous condition.   Additionally, defendants argued that Gichuhi was individually entitled to summary judgment because plaintiffs offered no basis to pierce the corporate veil of Luwan and find him individually liable.

Following oral argument, the motion judge issued an oral opinion granting summary judgment in favor of both defendants.   The judge stated:

[W]e have ․ plaintiff who was ․ on this stairwell, and if we take her deposition testimony, she was there more than once, but even if she was only there once, the fact of the matter is, ․ defendants provided a light switch.   There's nothing in the facts in this case to suggest or even imply that there was anything wrong with the light switch, that it was hidden, that it was obstructed, that it was difficult to find.

And if that was the allegation that was being set forth by ․ plaintiffs, in this [c]ourt's judgment, at least, they would need an expert to opine that there was something about that light switch that created a danger, in that it would have been somehow difficult for the plaintiff to ․ find and locate the light switch.

So I do not believe that ․ defendants in this case violated any duty to ․ plaintiff, and, accordingly, I will grant their summary judgment motion.

This appeal followed, with plaintiffs raising the following argument for our consideration:

POINT ONE

Summary Judgment was improperly granted as there are sufficient issues of fact [which] precluded disposition in a summary manner and no expert is required for plaintiff to sustain her prima facia case as to the darkness alleged as the cause of plaintiff's fall.

II

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46–2(c) that governs the trial court.   See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445–46 (2007).   We “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

To establish a prima facie case of negligence, a plaintiff must set forth evidence that:  (1) defendant owed him or her a duty of care;  (2) defendant breached that duty;  and (3) defendant's breach of duty proximately caused plaintiff damages.  D'Allessandro v. Hartzel, 422 N.J.Super. 575, 579 (App.Div.2011).

“Under common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest or business invitee.”  Sussman v. Mermer, 373 N.J.Super. 501, 504 (2004);  Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 43 (2012).   In this case, it is undisputed that plaintiff was a guest of her sister-in-law, who was a tenant in the building at the time of the accident, and that the stairwell where plaintiff fell is a common area of the building.   Thus, we treat plaintiff as a business invitee for the purpose of her claim.  Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005) (“In the common areas of an apartment complex, tenants and their social guests are deemed to be business visitors of the landlord.”).

A property owner owes a business invitee, such as plaintiff, a duty to “ ‘use reasonable care to make the premises safe, including the duty to conduct a reasonable inspection and discover defective conditions.’ ”  D'Allessandro, supra, 422 N.J.Super. at 579 (quoting Daggett v. Di Trani, 194 N.J.Super. 185, 192 (App.Div.1984)).

At oral argument on appeal, plaintiffs argued, for the first time, the applicability of the New Jersey State Housing Code (Code), specifically N.J.A.C. 5:28–1.6, which regulates the availability and intensity of lighting in housing structures.   The regulation provides, in pertinent part:

(d) Every portion of each staircase, hall, cellar, basement landing furnace room, utility room, and all similar non-habitable space located in a dwelling shall have either natural or artificial light available at all times, with an illumination of at least two lumens per square foot (two foot-candles) in the darkest portions.

(e) Every portion of any interior or exterior passageway or staircase common to two or more families in a dwelling shall be illuminated naturally or artificially at all times with an illumination of at least two lumens per square foot (2 foot-candles) in the darkest portion of the normally traveled stairs and passageways.   In dwellings comprising two dwelling units such illumination shall not be required at all times if separate switches, convenient and readily accessible to each dwelling unit, are provided for the control of such artificial light by the occupants thereof.

[Ibid. (emphasis added).]

The regulation appears directly applicable to this case, as the building contains three dwelling units and the accident took place in a common stairwell.   Accordingly, it is evidential as to whether the stairwell in that area was reasonably safe.

Because the regulation was brought to our attention so late, we permitted the parties to submit supplemental briefing on how the regulation affects our negligence analysis, and more importantly, whether we should even consider it.   Defendants argue that because plaintiffs failed to raise the regulation before the motion court, any argument based on it should be deemed waived.   Plaintiffs argue that the regulation is directly applicable to the facts of this case.

We agree with defendants that generally, an argument not raised before the trial court is deemed waived.   See Society Hill Condominium Ass'n, Inc. v. Society Hill Assocs., 347 N.J.Super. 163, 176 (App.Div.2002).   However, we do not consider this a new argument per se, but rather within the purview of whether the alleged lack of lighting created an unsafe condition.

Pursuant to N.J.R.E. 201(a):

Law which may be judicially noticed includes the decisional, constitutional and public statutory law, rules of court, and private legislative acts and resolutions of the United States, this state, and every other state, territory and jurisdiction of the United States as well as ordinances, regulations and determinations of all governmental subdivisions and agencies thereof.

On appeal, in our discretion, we “may take judicial notice of any matter specified in [N.J.R.E.] 201, whether or not judicially noticed by the [trial] judge.”  N.J.R.E. 202(b);  Marchak v. Claridge Commons, Inc., 261 N.J.Super. 126, 131–32 (App.Div.1992) (“Of course, we may take judicial notice of statutes, regulations and case law, whether or not presented to the motion judge ․ in deciding legal issues.”), aff'd, 134 N.J. 275 (1993).

Exercising our discretionary authority, we take judicial notice of N.J.A.C. 5:28–1.6, and determine that the regulation, along with the record before us, at least raises a genuine issue of material fact as to whether Luwan violated its duty to provide plaintiff with a reasonably safe premises.   Because the record indicates that Luwan's building contains three units, proper illumination was required at all times, regardless of whether or not switches were properly located.  N.J.A.C. 5:28–1.6(e).   Therefore, we reverse the grant of summary judgment with respect to Luwan.   In reversing, we imply no criticism of the motion judge, who decided the case based upon the briefs and arguments of counsel, without the benefit of briefing or argument regarding the Code.

We do, however, affirm the grant of summary judgment as to Gichuhi individually, who is a member of Luwan, a Limited Liability Company (LLC).  To hold an individual member of an LLC liable, a plaintiff must articulate extraordinary reasons why the court should pierce the corporate veil.   See Richard A. Pulaski Constr.   Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 472 (2008) (quoting Dept. of Envtl.   Prot. v. Ventron Corp., 94 N.J. 473, 500 (1983)) (“ ‘[e]xcept in cases of fraud, injustice, or the like, courts will not pierce a corporate veil’ ”).   Plaintiffs fail to articulate any such reason in their pleadings or on appeal.   Thus, on remand, only Luwan will remain as a defendant.

Affirmed in part, and reversed and remanded in part.

FOOTNOTES

FN1. Hereinafter, we refer to Carol and James Houston collectively as “plaintiffs”, Carol Houston individually as “plaintiff”, and Gichuhi and Luwan collectively as “defendants”..  FN1. Hereinafter, we refer to Carol and James Houston collectively as “plaintiffs”, Carol Houston individually as “plaintiff”, and Gichuhi and Luwan collectively as “defendants”.

FN2. Plaintiff claimed in her interview with the insurance company that she had made between ten and fifteen trips up and down the stairs prior to falling, but when asked the same question at her deposition, she answered, “[a]bout five or six.”.  FN2. Plaintiff claimed in her interview with the insurance company that she had made between ten and fifteen trips up and down the stairs prior to falling, but when asked the same question at her deposition, she answered, “[a]bout five or six.”

PER CURIAM