In a case where a combination of dog urine and condominium stairs lacking a slip-resistant surface is alleged to have led to serious injury, a New Jersey appeals court has reopened a slip-and-fall suit after finding that dismissal based on defendant’s lack of notice of a hazardous condition was erroneous.
Jarret Rasnow sued his condominium association and a management company after he broke his ankle slipping on a wet spot on a concrete stairway, according to the Appellate Division’s Tuesday decision in Rasnow v. Harmon Cove Towers I Condominium Association.
The suit was dismissed on summary judgment based on the lack of notice about the puddle on the stair tread. But the appeals court said no notice was needed to find the defendants liable because they painted the stairs with a coating that was not slip-resistant.
Superior Court Judge Joseph Isabella of Hudson County granted motions by the lawyer for the Harmon Cove Towers I Condominium Association and Taylor Management Co. for summary judgment based on a 2003 New Jersey Supreme Court case, Nisivoccia v. Glass Gardens, which said that a plaintiff asserting a breach of the defendant’s duty must prove that the defendant had actual or constructive notice of the hazard.
The substance that caused Rasnow to slip was not identified. But Rasnow presented testimony from a maintenance worker and a security guard who worked in the building, who said dogs belonging to the building’s residents sometimes urinate in the buildings’ elevators, according to the decision. Rasnow also presented expert testimony from engineer Robert Bertman, who reported that during his site inspection, he witnessed several residents descending the stairs with their dogs.
Bertman testified that national building codes require the stairs to have slip-resistant surfaces and be painted with an abrasive substance, or other measures taken to make them safe, the court noted.
Isabella rejected Rasnow’s argument that no notice was required in the case because the stairs became more slippery when the defendants had them painted. Such conduct turned the case into an “intrinsic substance case” under a 1955 Supreme Court case cited by the plaintiff, Brody v. Albert Lipson & Sons.
On appeal, Appellate Division Judges Garry Rothstadt and Arnold Natali Jr. said the Glass Gardens ruling did not compel a result contrary to the Albert Lipson case. Although as a general rule the Glass Gardens case requires that a plaintiff establish the defendant had actual or constructive knowledge of a dangerous condition in order to establish a breach of duty, the court in that case said no obligation to establish notice exists where a dangerous condition occurs as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents.
“As noted, the improperly painted floor was a condition of the property that, according to Bertman, was a dangerous condition created by defendants,” the court said in the per curiam decision.
In addition, the presence of a foreign liquid on the stairway does not alter the analysis, Rothstadt and Natali wrote.
“A reasonable interpretation of Bertman’s report permits a finding that the liquid plaintiff saw dripping from the step was only a catalyst for the dangerous condition created by painting the concrete stairs without applying an abrasive additive to provide traction when the floor became wet,” the appellate judges wrote.
Isabella determined that Bertman’s finding of minimal compliance with the coefficient-of-friction standard when the floor was wet precluded any finding that it was in a dangerous condition at the time of the plaintiff’s fall. But Rothstadt and Natali disagreed.
The lawyer for Rasnow, Union solo Martin Kronberg, said the ruling “clearly defines what sometimes can be a murky issue, that is, when a plaintiff does not need to prove either actual or constructive notice by a defendant in a premises liability case.”
Laura Lelio of Faust Goetz Schenker & Blee in Livingston, who represented Harmon Cove Towers I Condominium Association and Taylor Management Co., did not return a call about the case.