SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3908-96T2
GEORGE P. ARVANITIS and
HRISTINA ARVANITIS,
Plaintiffs-Appellants,
v.
GEORGE HIOS and EFSTATHIA
HIOS,
Defendants-Respondents.
______________________________________________________
Argued January 6, 1998 - Decided January 22, 1998
Before Judges Pressler, Conley and Wallace.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County.
Roberta L. Tarkan argued the cause for appellants
(Myers & Pico, attorneys; Deborah L. Pico, on the
brief).
Robert K. Walsh argued the cause for respondents
(Bashwiner and Woods, attorneys; Mr. Walsh, on the
brief).
The opinion of the court was delivered by
CONLEY, J.A.D.
Plaintiff George Arvanitis (plaintiff) was injured while
attempting to assist defendant Efstathia Hios (Efstathia) in
convincing her husband, defendant George Hios (George), to take
his medication. Plaintiff and his wife, Hristina Arvanitis,
appeal summary judgments granted in favor of both defendants. We
reverse.
Since the appeal arises from summary judgments, we must
decide "`whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.'" Brill v.
Guardian Life Ins. Co. of Am.,
142 N.J. 520, 533 (1995) (quoting
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52,
106 S. Ct. 2505, 2512,
91 L. Ed.2d 202, 214 (1986)). The evidence, of
course, must be considered most favorably towards the opposing
party. Brill, supra, 142 N.J. at 523-24.
That evidence, as presented to the motion judge, is not
complex. In 1992, following a recurrence of a 1985 episode of
hallucinations, George was diagnosed as a manic depressive.
Lithium was prescribed to control his condition. During the
earlier episode, George had become violent and had "grabbed
[Efstathia] by the throat like [he] was choking her. . . ." A
few weeks before the incident during which plaintiff was injured,
George voluntarily stopped taking his medication. According to
Efstathia's police statement following the incident, George "had
been striking her lately." It is a reasonable inference that
George's violence was a product of his not taking his medication.
There is no indication that plaintiff, who is George's
nephew, was aware of the 1985 violent conduct or the then current
violence on the part of George. He did know that George had
stopped taking his medication and "was losing control somehow,"
and until the incident on May 20, 1993, he believed that George
generally was "okay."
On the day of the incident, Efstathia called plaintiff and
asked him to come to her house because George was "a little bit
upset" and would not take his medication. After receiving the
phone call, plaintiff went first to George's deli shop. George
was there and after they had coffee, he closed the shop. When
plaintiff asked him how he was, George told him he was "not
feeling that well" and that he did not know what was wrong or
what was bothering him. Other than that, George seemed fine to
plaintiff.
They both then went to the defendants' home, where Efstathia
asked plaintiff to come in with George. He came in and they sat
down in the living room. At that point, Efstathia and plaintiff
attempted to persuade George to take his medication. George
refused and became angry. He suddenly stood up to knock the
medication out of his wife's hand and reached out to strike her.
Plaintiff stood up to intercede. During the commotion, his leg
broke through defendants' glass coffee table and was cut by the
glass. During his deposition testimony, plaintiff could not
articulate exactly how he cut his leg. He said:
[George] wants to take the medication from his
wife's hand, throw them up and then hit her . . .
I got up and stopped him . . . I told him stop,
don't do this type of nonsense . . . I found
myself with my foot cut on top of the table . . .
I must have lost my balance. The table was in
front of me, and as I turn around was holding him,
I lost my balance and I fell on the table.
And in his answers to interrogatories, he explained:
Defendant would not take his medication and was
becoming very agitated. Defendant became violent
and stuck his wife. During the commotion, I
slipped and fell into the glass table.
During oral argument on the summary judgment as to Efstathia, plaintiff argued that Efstathia "knew of her husband's propensity for violence when he wasn't on the medication," and not only did not warn him of that but invited him to come in and help her try to get George to take his medication. Those circumstances, he urged, created a duty of care on Efstathia's part which she breached by either not warning him or by requesting his help. The motion judge, however, responded that plaintiff "doesn't even know how he got his foot cut," and then engaged in the following exchange:
[PLAINTIFF'S ATTORNEY]: No, I understand that, but that's why I don't think that you can grant summary judgment. It's a Jury question.
THE COURT: You watch me. You don't
think so? You watch me.
[COUNSEL]: It's a Jury question.
THE COURT: It is not a Jury question
until you show me that there's a breach of a
duty. The motion is granted.
A prerequisite to recovery on a negligence theory is, of course, a duty owed by a defendant to a plaintiff. J.S. v. R.T.H., 301 N.J. Super. 150, 154 (App. Div.), certif. granted, 151 N.J. 464 (1997). The existence of a duty is a question of law to be determined by a judge and, ultimately, is a question of fairness and policy. Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292 (1996); Dunphy v. Gregor, 136 N.J. 99, 108 (1994). Ordinarily, on the other hand, whether there was a breach of the duty, foreseeability, and proximate cause are
issues "peculiarly within the competence of a jury." Anderson v.
Sammy Redd & Assocs.,
278 N.J. Super. 50, 56 (App. Div. 1994),
certif. denied,
139 N.J. 441 (1995).
The parties have addressed Efstathia's duty of care from the
perspective of the traditional common law concepts applicable to
a landowner towards a person on his or her property.
Historically, whether a duty exists and to what extent has been
measured by the right of that person to be on the property,
Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 433 (1993), with
the status of the person determined to be a business invitee,
licensee, or trespasser. Ibid.
The parties seem to agree that plaintiff should be
considered a social guest on defendants' property. In this
respect:
The social guest enjoys the hospitality
of the host and expects that the host will
take the same care of him as he does of
himself and his family. However, the host
must warn a social guest of risks of harm or
dangerous conditions of which the host has
knowledge and the guest is unaware.
[Benedict v. Podwats,
109 N.J. Super. 402,
407 (App. Div.), aff'd,
57 N.J. 219 (1970)
(emphasis added).]
Moreover, as the Supreme Court observed in Hopkins v. Fox & Lazo
Realtors, supra, "`the historical classifications of the degrees
of care owing to visitors upon land . . . are undergoing gradual
change in the law in favor of a broadening application of a
general tort obligation to exercise reasonable care against
foreseeable harm to others.'" 132 N.J. at 435 (quoting Butler v.
Acme Markets, Inc.,
89 N.J. 270, 277 (1982). But see Clohesy v.
Food Circus Supermarkets, Inc.,
149 N.J. 496, 515 (1997)
("[a]lthough we do not heavily rely on the common law
classification of the [the injured party] as an invitee, we
cannot disregard that fact.").
Our recent decision in J.S. v. R.T.H., supra, 301 N.J.
Super., is instructive. In J.S., plaintiffs, two young girls,
were sexually assaulted by a neighbor for more than a year.
Plaintiffs' parents brought an action against the neighbor and
his wife, alleging that the wife was negligent because she knew
of her husband's history of pedophilia and should have either
warned the children or taken steps to protect them. Reversing
the summary judgment granted in favor of the wife, we held that
under the circumstances set forth by the plaintiffs, the wife did
have a duty to take reasonable steps to prevent harm, and her
knowledge or awareness of her husband's predilections was a
disputed material fact. Id. at 154. In doing so, we noted:
Our Supreme Court has described "[t]he
determination of the existence of a duty
ultimately [as] a question of fairness and
policy." The facts of a case inform the
court in determining whether a duty exists.
While foreseeability alone does not create a
duty, there can be no duty unless harm to
another is reasonably foreseeable.
[J.S., supra, 301 N.J. Super. at 155 (quoting
Snyder v. American Ass'n of Blood Banks,
supra, 144 N.J. at 292 (1996)) (citations
omitted).]
Further, we noted:
After "weighing . . . the relationship of the parties, the nature of the risk, and the public interest," we conclude that if plaintiffs prove [the wife] was aware of her husband's conduct or history, it was
foreseeable that he posed a danger to these
young girls, and it is fair to hold that Mary
had a duty to take reasonable steps to
protect them from such danger. . . . It will
be a jury's role to determine the specific
contours of her duty, and whether she
deviated therefrom, based upon its findings
as to the extent of her knowledge and the
foreseeability of harm.
[Id. at 156 (quoting Goldberg v. Housing
Auth. of Newark,
38 N.J. 578, 583 (1962)).]
Cf. Linebaugh v. Hyndman,
213 N.J. Super. 117, 121 (App. Div.
1986), aff'd o.b.,
106 N.J. 556 (1987) ("`[a]n abnormally
[vicious] domestic animal is like an artificial [dangerous]
condition on the property,'" so that where a landlord, "either by
his affirmative consent or by his failure to take curative
measures, permits another to" have such an animal in areas under
his control, he is liable to the tenants or their invitees for
injuries caused by the animal.); Stuyvesant Assocs. v. Doe,
221 N.J. Super. 340, 345-46 (Law Div. 1987) (landlord may be liable
for injuries to third persons by tenant who is known to act
violently when tenant fails to take medication and thus should
evict tenant.).
Here, construed most favorably for plaintiff, the evidence
would support a reasonable inference that Efstathia was aware of
her husband's violent behavior when he did not take his medicine.
She certainly knew of the 1985 choking incident, as she was the
victim. She knew that George had been diagnosed as being manic
depressive and needed his medication. She knew he was not taking
it and told the police that he again was becoming assaultive.
Yet she did not warn plaintiff of this when she asked for his
help and, just before the confrontation, asked him into her
house. Certainly under these circumstances the risk of harm to
plaintiff, not to mention herself, was "reasonably within the
range of apprehension, of injury to another person. . . ." See
Clohesy v. Food Circus Supermarkets, Inc., supra, 149 N.J. at 503
("[f]oreseeability as it impacts duty determinations refers to
`the knowledge of the risk of injury to be apprehended.'"); Hill
v. Yaskin,
75 N.J. 139, 144 (1977) ("foresight of harm lies at
the foundation of the duty to use care and therefore of
negligence.").
Defendants assert, however, that plaintiff was aware of the
"dangerous condition" and thus Efstathia had no duty to warn.
Berger v. Shapiro,
30 N.J. 89, 99 (1959). In this respect, they
assert in their brief "[i]t is manifest that the glass table, on
which plaintiff . . . injured himself, was not an undiscoverable
defect" and that, as to George's "mental condition," plaintiff
knew of that condition and knew that George was not taking his
medication. It is, of course, not the glass table that is at
issue. More to the point, all that plaintiff knew as to George's
"condition," at least viewing the evidence most favorably for
plaintiffs, was that George was not taking his medication, that
he was losing control "somehow," and was "a little bit upset" on
the day in question. This is simply insufficient to support a
conclusion that plaintiff could have known that George would
become violent and confrontational on May 20, 1993 so as to
absolve Efstathia of a duty of care when she asked plaintiff for
assistance.
The motion judge granted the summary judgment as to George because, it seems, he thought there was no proximate causation. In this respect, he concluded that "there is no causal relationship between [George's] failure to take the medicine and the man's foot getting caught on the table." The judge seemed to be particularly troubled by plaintiff's not being sure how it happened that he fell into the table, observing "[i]f he says that somebody pushed him or somebody hit him, that's
. . . entirely different." But whether plaintiff knows how his foot went through the glass table is not dispositive of the issue of causation. See Berger v. Shapiro, supra, 30 N.J. at 101 (a jury can draw reasonable inference of causation even though plaintiff did not know or see where she stepped when she fell).
Ordinarily, questions of proximate cause are for the trier of fact. Yun v. Ford Motor Co., 143 N.J. Super. 162 (1996), reversing on dissent of Judge Baime, 276 N.J. Super. 158, 160 (App. Div. 1994). "The tortfeasor need not foresee the precise injury; it is enough that the type of injury be within an objective `realm of foreseeability.'" 276 N.J. Super. at 159 (citations omitted). Foreseeability that relates to proximate cause (as distinguished from that relating to a duty of care) involves "`the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff' reasonably flowed from the defendant's breach of duty." Clohesey v. Food Circus Supermarkets, Inc., supra, 149 N.J. at 503 (quoting Hill v. Yaskin, supra, 75 N.J. at 143).
To be sure, "`[a] foreseeability test . . . is not intended
to bring within the scope of the defendant's liability every
injury that might possibly occur. `In a sense, in retrospect
almost nothing is entirely unforeseeable.' Foreseeability means
that which it is objectively reasonable to expect, not merely,
what might conceivably occur.'" Yun v. Ford Motor Co., supra,
143 N.J. at 166 (Garibaldi, J., dissenting). Thus, "[t]he
actor's conduct may be held not to be a legal cause of harm to
another where after the event and looking back from the harm to
the actor's negligent conduct, it appears to the court highly
extraordinary that it should have brought about the harm."
Restatement (Second) of Torts § 435(2) (1965). See Jensen v.
Schooley's Mountain Inn, Inc.,
216 N.J. Super. 79, 82 (App.
Div.), certif. denied,
108 N.J. 181 (1987) (serving alcohol to
visibly intoxicated patron was not a proximate cause of injuries
sustained when the patron subsequently drove his car eight miles,
parked, climbed a tree, fell out of the tree, rolled into the
river and drowned.).
We can not say here that George's reactions when confronted
with plaintiff's and his wife's efforts to give him his
medication and its consequences were "highly extraordinary." A
jury well could conclude that harm to plaintiff was reasonably to
be expected and thus George's failure to take his medication was
a substantial factor in the harm that occurred. As observed in
Stuyvesant Associates v. Doe, supra, 221 N.J. Super. at 344-45:
A [schizophrenic] . . . [n]ot having [taken his
medication] allowed himself to become psychotic,
with the resulting damage done by his own hands.
He is liable for the consequences of that conduct.
Perhaps he did not intend to tempt the fate of
becoming psychotic, or intend the damage that
resulted as a consequence, but it is obvious that
he was the person who allowed the condition to
result, with the consequent damage. . . . his
having allowed the condition was the reasonably
foreseeable consequence of his acts. . . .
To this, we simply add that in many respects, plaintiff
could be likened to a rescuer responding to a dangerous situation
and George, not to mention Efstathia, the creator of the
dangerous situation. In this respect, we have held that "where a
danger has been negligently created, . . . the intervention of a
rescuer [and the consequences] is reasonably foreseeable. . . ."
Eyrich v. Dam,
193 N.J. Super. 244, 256 (App. Div.), certif.
denied,
97 N.J. 583 (1984). See Blackburn v. Broad St. Baptist
Church, ____ N.J. Super. ____, ____ (App. Div. 1997) (slip
opinion at ); Tornatore v. Selective Ins. Co. of Am.,
302 N.J. Super. 244, 252 (App. Div. 1997); Burns v. Market Transition
Facility,
281 N.J. Super. 304, 310 (App. Div. 1995). As the oft
repeated observation of Justice Cardoza goes:
Danger invites rescue. The cry of distress is the
summons to relief. The law does not ignore these
reactions of the mind in tracing conduct to its
consequences. It recognizes them as normal. It
places their effects within the range of the
natural and probable. The wrong that imperils
life is a wrong to the imperiled victim; it is a
wrong also to his rescuer. . . . The risk of
rescue, if only it be not wanton, is born of the
occasion. The emergency begets the man.
[Wagner v. International Ry. Co.,
232 N.J. 176, 180,
133 N.E. 437 (1921).].
George initiated danger here by not taking his medication, just as did Efstathia by requesting plaintiff's assistance in a
potentially explosive situation and without warning him. We see
no reason why their responsibility to plaintiff should not be
determined by a jury.
Reversed and remanded for further proceedings consistent
with this opinion.