Plaintiff broke her ankle while helping her sister-in-law move into an apartment in Irvington. In January of 2009, Carol Houston (“Houston” or “Plaintiff”) was helping her sister move into an apartment and broke her ankle when she fell down a flight of stairs. Houston v. Gichuhi, Superior Court of New Jersey, Appellate Division, Docket No.: A-0921-12. The plaintiff claimed it was dark in the area where she fell and the lights were not on. Furthermore, no one in her group was able to locate the light switch to illuminate the stairwell. The building was a three-family dwelling unit with an apartment on each floor. “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 record indicated the light switch for the first floor landing light fixture can be found somewhere on the wall between the second and third floors

Plaintiff testified, “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] were able to locate the light switch prior to plaintiff’s fall.” Houston did not retain an expert for her case and defendants successfully filed for summary judgment. The defense argued plaintiff failed to provide sufficient evidence the lighting in the hallway of the building created a dangerous condition.

The trial court determined there was nothing in the facts suggesting “or even imply[ing] that there was anything wrong with the light switch, that it was hidden, that it was obstructed, that it was difficult to find.” Furthermore, the trial judge stated plaintiff would need an expert to state that there was something about that particular light switch that made it difficult to locate and use.

Houston argued on appeal that the summary judgment decision should be set aside and she should get her day in court to present her case. There were issues of genuine material fact, of which to argue the trial judge should have recognized and deemed sufficient. Moreover, no expert was required for the plaintiff to sustain the prima facie case (make out a case in court) as to the difficulty to locate the light switch.

The court explained to establish a prima facie case for negligence, the plaintiff must provide evidence that proves more likely than not: (1) there was a duty owed to the plaintiff by the defendant; (2) defendant breached the duty; and (3) defendant’s breach of duty directly caused plaintiff’s damages. This “direct cause” is called “proximate causation.” The landowner owed her tenant’s sister-in-law (a guest) a duty of care in the common area of the building. The common area of the building was where the plaintiff fell and this is undisputed. Therefore, the court decided that the guest (plaintiff) should be treated as a “business invitee.” Tenants and their social guests are deemed to be business visitors of the landlord in the common areas of an apartment complex. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005). The landlord owes social guests in the common areas, such as Houston, a duty to use reasonable care to make the premises safe, including the duty to conduct a reasonable inspection and discover defective conditions.”

The troublesome aspect of plaintiff’s case was the very much applicable statute – N.J.A.C. 5:28-1.6 was not raised as an argument before the appeal. The regulation read that there must be “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.” This is true if the apartment building, as in this case, has more than two dwelling units. The defense argued the regulation should not even be considered because it was raised too late. Therefore, no matter how relevant it may be, the argument with respect to the regulation should be deemed waived by plaintiff herself. The Appellate Division found this was not a new argument “per se, but rather within the purview of whether the alleged lack of lighting created an unsafe condition.” I guess you can say that a technical argument gets a technical response. The panel acknowledged and took “judicial notice” of the pertinent regulation and determined that the facts alongside the regulation raised a genuine issue of material fact as to whether one of the defendants violated its duty to provide plaintiff with a reasonably safe premises. 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).